B-118394, FEBRUARY 24, 1954, 33 COMP. GEN. 371

B-118394: Feb 24, 1954

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

HOLIDAY COMPENSATION - EXPERTS AND CONSULTANTS EMPLOYED FOR LIMITED PERIODS - HOLIDAY PAY ACT OF 1938 AN EXPERT EMPLOYED ON A PER DIEM BASIS CONTINUOUSLY FOR MORE THAN A YEAR UNDER SEPARATE 90-DAY EMPLOYMENT AGREEMENTS IS NOT A "REGULAR EMPLOYEE" OF THE GOVERNMENT SO AS TO BE ENTITLED TO HOLIDAY COMPENSATION UNDER THE HOLIDAY PAY ACT OF 1938 FOR HOLIDAYS ON WHICH NO WORK WAS PERFORMED DURING THE PERIOD OF THE LAST 90-DAY AGREEMENT. CONSECUTIVE TIME-LIMITED APPOINTMENTS TOTALING A PERIOD OF EMPLOYMENT IN EXCESS OF ONE YEAR WITHOUT A BREAK IN SERVICE ARE NOT EXTENSIONS OF THE ORIGINAL APPOINTMENT SO AS TO CONSTITUTE REGULAR EMPLOYMENT AND ENTITLE AN EXPERT EMPLOYED ON A WHEN ACTUALLY EMPLOYED BASIS.

B-118394, FEBRUARY 24, 1954, 33 COMP. GEN. 371

HOLIDAY COMPENSATION - EXPERTS AND CONSULTANTS EMPLOYED FOR LIMITED PERIODS - HOLIDAY PAY ACT OF 1938 AN EXPERT EMPLOYED ON A PER DIEM BASIS CONTINUOUSLY FOR MORE THAN A YEAR UNDER SEPARATE 90-DAY EMPLOYMENT AGREEMENTS IS NOT A "REGULAR EMPLOYEE" OF THE GOVERNMENT SO AS TO BE ENTITLED TO HOLIDAY COMPENSATION UNDER THE HOLIDAY PAY ACT OF 1938 FOR HOLIDAYS ON WHICH NO WORK WAS PERFORMED DURING THE PERIOD OF THE LAST 90-DAY AGREEMENT, NOTWITHSTANDING CONTINUITY OF SERVICE, UNLESS THE CONTRACT OF EMPLOYMENT, OR APPOINTMENT PAPERS, PROVIDED FOR HOLIDAY PAY. CONSECUTIVE TIME-LIMITED APPOINTMENTS TOTALING A PERIOD OF EMPLOYMENT IN EXCESS OF ONE YEAR WITHOUT A BREAK IN SERVICE ARE NOT EXTENSIONS OF THE ORIGINAL APPOINTMENT SO AS TO CONSTITUTE REGULAR EMPLOYMENT AND ENTITLE AN EXPERT EMPLOYED ON A WHEN ACTUALLY EMPLOYED BASIS, WITH REGULAR ESTABLISHED TOUR OF DUTY, TO COMPENSATION FOR HOLIDAYS ON WHICH NO WORK WAS PERFORMED UNDER THE RULE ENUNCIATED IN 32 COMP. GEN. 177, THAT AN EMPLOYEE SERVING UNDER AN INDEFINITE APPOINTMENT--- NOT LIMITED TO ONE YEAR OR LESS--- IS TO BE REGARDED AS A REGULAR EMPLOYEE WITHIN THE MEANING OF THE HOLIDAY PAY ACT OF 1938.

COMPTROLLER GENERAL WARREN TO MAE H. BEACH, DEPARTMENT OF THE AIR FORCE, FEBRUARY 24, 1954:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 19, 1954, REQUESTING A DECISION UPON THE PROPRIETY OF CERTIFYING FOR PAYMENT SUPPLEMENTAL BUREAU VOUCHER 205-A, COVERING COMPENSATION TO MR. PAUL R. BEALL, AN EXPERT WITH HEADQUARTERS UNITED STATES AIR FORCE, FOR THE HOLIDAYS AND HALF HOLIDAYS WHICH OCCURRED DURING THE PERIOD DECEMBER 24, 1953, TO JANUARY 1, 1954, ADN ON WHICH NO WORK WAS PERFORMED.

PURSUANT TO SECTION 601 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1954, 67 STAT. 349, AUTHORIZING THE SECRETARY OF THE AIR FORCE TO PROCURE THE SERVICES OF EXPERTS AND CONSULTANTS IN ACCORDANCE WITH SECTION 15 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 800, (5 U.S.C. 55A), AND PROVIDING THAT CONTRACTS FOR SUCH SERVICES MAY BE RENEWED ANNUALLY, THE SERVICES OF MR. BEALL WERE PROCURED ON OCTOBER 27, 1953, BY HEADQUARTERS UNITED STATES AIR FORCE FOR A PERIOD NOT IN EXCESS OF 90 DAYS. HIS EMPLOYMENT IS DESCRIBED AS BEING "ON A "WHEN ACTUALLY EMPLOYED BASIS" WITH A REGULAR TOUR OF DUTY, MONDAY THROUGH FRIDAY, ESTABLISHED FOR EACH ADMINISTRATIVE WORK WEEK.' IT FURTHER APPEARS, FROM THE ENCLOSURES WITH YOUR LETTER, THAT MR. BEALL IS COMPENSATED AT THE RATE OF $50 PER DAY. IMMEDIATELY PRIOR TO SERVICE WITH HEADQUARTERS UNITED STATES AIR FORCE, MR. BEALL SERVED CONTINUOUSLY WITH HEADQUARTERS AIR RESEARCH AND DEVELOPMENT COMMAND, BALTIMORE, MARYLAND, FROM MAY 26, 1952, TO OCTOBER 26, 1953, UNDER 90 DAY AGREEMENTS SIMILAR TO THAT WITH HEADQUARTERS UNITED STATES AIR FORCE. IN VIEW THEREOF, THERE IS SPECIFICALLY SUBMITTED FOR CONSIDERATION, IN CONNECTION WITH THE TRANSMITTED VOUCHER, THE QUESTION OF WHETHER THE CONSECUTIVE TIME-LIMITED APPOINTMENTS TOTALING A PERIOD OF EMPLOYMENT IN EXCESS OF ONE YEAR WITHOUT A BREAK IN SERVICE MAY BE VIEWED AS EXTENSIONS OF THE ORIGINAL APPOINTMENT SO AS TO CONSTITUTE REGULAR EMPLOYMENT, AND ENTITLE MR. BEALL TO COMPENSATION FOR THE HOLIDAYS INVOLVED UNDER THE RULE ENUNCIATED IN OFFICE DECISION OF OCTOBER 10, 1952, 32 COMP. GEN. 177, TO THE EFFECT THAT AN EMPLOYEE SERVING UNDER AN INDEFINITE APPOINTMENT--- NOT LIMITED TO ONE YEAR OR LESS--- IS TO BE REGARDED AS A REGULAR EMPLOYEE WITHIN THE MEANING OF THE HOLIDAY PAY ACT OF 1938, 52 STAT. 1246.

SECTION 15 OF THE ACT OF AUGUST 2, 1946, PROVIDES FOR THE PROCUREMENT, BY CONTRACT, OF THE TEMPORARY (NOT IN EXCESS OF ONE YEAR) OR INTERMITTENT SERVICES OF EXPERTS OR CONSULTANTS, WITHOUT REGARD TO THE CIVIL SERVICE AND CLASSIFICATION LAWS, OR SECTION 3709, REVISED STATUTES. ASIDE FROM THE RULE CONTAINED IN THE DECISION OF OCTOBER 10, 1952, 32 COMP. GEN. 177, AND THE INDICATION IN AN EARLIER DECISION, 28 COMP. GEN. 519, THAT SUCH RULE IS FOR APPLICATION TO EXPERTS AND CONSULTANTS APPOINTED UNDER SECTION 15 OF THE ABOVE ACT, IT DOES NOT APPEAR THAT THE CHARACTER OF SERVICES CONTEMPLATED TO BE PERFORMED BY SUCH PERSONS UNDER THAT STATUTE WOULD CONSTITUTE THEM "REGULAR EMPLOYEES" WITHIN THE MEANING OF THE 1938 HOLIDAY PAY ACT.

CONSEQUENTLY, AND NOTWITHSTANDING THE CONTINUITY OF SERVICE INVOLVED, IT MUST BE HELD THAT MR. BEALL IS NOT A REGULAR EMPLOYEE OF THE GOVERNMENT SO AS TO BE ENTITLED, UNDER THE PROVISIONS OF THE 1938 ACT, TO HOLIDAY PAY.

THE VOUCHER IS RETURNED HEREWITH AND YOU ARE ADVISED, THAT UNLESS THE CONTRACT OF EMPLOYMENT, OR APPOINTMENT PAPERS, ARE PROVIDED FOR HOLIDAY PAY (28 COMP. GEN. 727), ITS CERTIFICATION FOR PAYMENT WOULD BE UNAUTHORIZED . ..END :