B-109230, MAY 5, 1952, 31 COMP. GEN. 565

B-109230: May 5, 1952

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SUNDAYS AND HOLIDAYS - COMPENSATION - TEMPORARY PER ANNUM EMPLOYEES A TEMPORARY EMPLOYEE WHO OCCUPIES A POSITION AS A CLASSIFIED EMPLOYEE IN A FULL TIME STATUS AND WHOSE SALARY IS FIXED ON A PER ANNUM BASIS IS ENTITLED TO COMPENSATION FOR A HOLIDAY ON WHICH NO WORK IS PERFORMED WHEN THE HOLIDAY FALLS WITHIN THE 40 HOUR TOUR OF DUTY. 1952: REFERENCE IS MADE TO YOUR LETTER OF APRIL 1. A HOLIDAY WHEN NO WORK WAS PERFORMED. COMPENSATION FOR WHICH WAS ADMINISTRATIVELY WITHHELD FROM HER REGULAR SALARY FOR THAT PAY PERIOD. IT IS STATED THAT THE INVOLVED EMPLOYEE WAS GIVEN A TEMPORARY APPOINTMENT JANUARY 10. THAT HER APPOINTMENT PAPERS CONTAIN THE INDORSEMENT THAT SHE WAS " EMPLOYED FOR FULL TIME WORK.

B-109230, MAY 5, 1952, 31 COMP. GEN. 565

SUNDAYS AND HOLIDAYS - COMPENSATION - TEMPORARY PER ANNUM EMPLOYEES A TEMPORARY EMPLOYEE WHO OCCUPIES A POSITION AS A CLASSIFIED EMPLOYEE IN A FULL TIME STATUS AND WHOSE SALARY IS FIXED ON A PER ANNUM BASIS IS ENTITLED TO COMPENSATION FOR A HOLIDAY ON WHICH NO WORK IS PERFORMED WHEN THE HOLIDAY FALLS WITHIN THE 40 HOUR TOUR OF DUTY--- THE EMPLOYEE'S STATUS FOR LEAVE PURPOSES BEING IMMATERIAL.

COMPTROLLER GENERAL WARREN TO R. C. MCNARE, DEPARTMENT OF AGRICULTURE, MAY 5, 1952:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 1, 1952, REQUESTING DECISION WHETHER, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED YOU MAY CERTIFY FOR PAYMENT THE VOUCHER FORWARDED THEREWITH PROPOSING PAYMENT TO ROSEMARY G. DANIELS FOR FEBRUARY 22, 1952, A HOLIDAY WHEN NO WORK WAS PERFORMED, COMPENSATION FOR WHICH WAS ADMINISTRATIVELY WITHHELD FROM HER REGULAR SALARY FOR THAT PAY PERIOD, BECAUSE OF HER NOT HAVING QUALIFIED HERSELF FOR LEAVE PURPOSES AT THAT TIME.

IT IS STATED THAT THE INVOLVED EMPLOYEE WAS GIVEN A TEMPORARY APPOINTMENT JANUARY 10, 1952, AS CARTOGRAPHIC AID, GS-2 AT $1.32 PER HOUR, AND THAT HER APPOINTMENT PAPERS CONTAIN THE INDORSEMENT THAT SHE WAS " EMPLOYED FOR FULL TIME WORK--- EARNS LEAVE.' YOUR DOUBT IN THE MATTER APPEARS TO ARISE FROM PAST DECISIONS OF THIS OFFICE HOLDING THAT W.A.E. EMPLOYEES WERE NOT ENTITLED TO HOLIDAY PAY UNTIL THEY HAD QUALIFIED TO EARN LEAVE AS PERMANENT EMPLOYEES, THUS QUALIFYING THEM AS REGULAR EMPLOYEES UNDER THE ACT OF JUNE 29, 1938, PROVIDING FOR HOLIDAY PAY TO REGULAR EMPLOYEES, WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON PIECE WORK BASIS, WHENEVER THEY ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY, ETC. SEE PENULTIMATE PARAGRAPH OF DECISION 28 COMP. GEN. 185 AT PAGE 192. BY ANALOGY, YOUR OFFICE APPARENTLY HAS CONSTRUED THE PRESENT PROVISIONS THAT NEW APPOINTEES MAY NOT BE GRANTED LEAVE UNTIL THEY HAVE WORKED CONTINUOUSLY FOR 90 DAYS AS REQUIRING 90 DAYS SERVICE TO ENTITLE THE EMPLOYEES TO HOLIDAY PAY.

THE DIFFICULTY IN THIS CASE ARISES FROM THE FACT THAT A FULL TIME STATUS, AS INDICATED IN THIS APPOINTMENT, IS INCONSISTENT WITH THE W.A.E. STATUS, AND THAT THE RATE OF COMPENSATION SHOULD HAVE BEEN STATED AT THE PER ANNUM SALARY RATE FOR GS-2, RATHER THAN AT A PER HOUR RATE. ON THE BASIS OF THE STATED EMPLOYMENT, THE RIGHT TO HOLIDAY PAY HERE IS BASED, NOT UPON THE ACT OF JUNE 29, 1958, 52 STAT. 1246, BUT UPON THE ESTABLISHED RIGHT OF FULL TIME EMPLOYEES--- PERMANENT OR TEMPORARY--- TO BE PAID FOR ALL HOLIDAYS FALLING ON A REGULAR WORK DAY. 22 COMP. GEN. 762; 25 ID. 877.

AS THE INVOLVED EMPLOYEE OCCUPIED A FULL TIME STATUS AS A CLASSIFIED EMPLOYEE, SHE WAS ENTITLED TO PAY FOR FEBRUARY 22, 1952, WHICH FELL WITHIN HER 40 HOUR TOUR OF DUTY, WITHOUT ANY REFERENCE TO HER STATUS FOR LEAVE PURPOSES.

THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT IN THE ABSENCE OF OTHER OBJECTION.