B-121948, NOVEMBER 18, 1954, 34 COMP. GEN. 235

B-121948, NOVEMBER 18, 1954, 34 COMP. GEN. 235

HOLIDAY COMPENSATION - PER DIEM, ETC., EMPLOYEES - NON-WORK DAYS THE DEFINITION OF THE TERM "REGULAR EMPLOYEES" CONTAINED IN THE CIVIL SERVICE COMMISSION REGULATIONS ISSUED PURSUANT TO THE ACT OF JUNE 11, 1954, WHICH AMENDS THE HOLIDAY COMPENSATION ACT OF JUNE 29, 1938, TO AUTHORIZE COMPENSATION TO EMPLOYEES PAID AT PER DIEM, PER HOUR, OR PIECE- WORK RATES FOR DAYS ON WHICH THEY ARE EXCUSED FROM DUTY BY ADMINISTRATIVE ORDER, MAY BE UNIFORMLY ADOPTED FOR ALL TYPES OF NON WORK DAYS SPECIFIED IN THE 1938 ACT.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF COMMERCE, NOVEMBER 18, 1954:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 26, 1954, CONCERNING THE DEFINITION OF THE TERM ,REGULAR EMPLOYEES," APPEARING IN JOINT RESOLUTION OF JUNE 29, 1938, 52 STAT. 1246, AS AMENDED BY PUBLIC LAW 395, APPROVED JUNE 11, 1954, 68 STAT. 249.

THE 1938 STATUTE AS AMENDED READS AS FOLLOWS (THE UNDERSCORED PORTION RESPECTING THE 1954 AMENDMENT):

THAT HEREAFTER WHENEVER REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE WORK BASIS ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY SUCH AS NEW YEAR'S DAY, WASHINGTON'S BIRTHDAY, MEMORIAL DAY, FOURTH OF JULY, LABOR DAY, THANKSGIVING DAY, CHRISTMAS DAY, OR ANY OTHER DAY DECLARED A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER, OR ANY DAY ON WHICH THE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT ARE CLOSED BY EXECUTIVE ORDER, OR ANY DAY ON WHICH SUCH EMPLOYEES ARE RELIEVED OR PREVENTED FROM WORKING BY ADMINISTRATIVE ORDER ISSUED UNDER SUCH REGULATIONS AS MAY BE PROMULGATED BY THE PRESIDENT, THEY SHALL RECEIVE THE SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED.

BY EXECUTIVE ORDER NO. 10552 DATED AUGUST 10, 1954, THE PRESIDENT DELEGATED TO THE CIVIL SERVICE COMMISSION THE AUTHORITY TO ISSUE REGULATIONS TO CARRY OUT THE AMENDMENT. SECTION 30.903 (B) OF THE REGULATIONS ISSUED BY THE COMMISSION DEFINES THE TERM "REGULAR EMPLOYEES" AS FOLLOWS:

"REGULAR EMPLOYEES" MEANS THOSE EMPLOYEES COMPENSATED AT PER DIEM, PER HOUR, OR PIECE-WORK RATES WHO HAVE A REGULAR TOUR OF DUTY, AND WHOSE APPOINTMENTS ARE NOT LIMITED TO 90 DAYS OR LESS OR WHO HAVE BEEN CURRENTLY EMPLOYED FOR A CONTINUOUS PERIOD OF 90 DAYS UNDER ONE OR MORE APPOINTMENTS WITHOUT A BREAK IN SERVICE.

IN 32 COMP. GEN. 177, RENDERED PRIOR TO THE 1954 AMENDMENT, THE FOLLOWING WAS STATED CONCERNING THE MEANING OF THE TERM "REGULAR EMPLOYEES":

* * * SINCE SOME SIGNIFICANCE MUST ATTACH TO THE TERM "REGULAR EMPLOYEES," AS USED IN THE STATUTE, THERE APPEARS JUSTIFIED THE CONCLUSION, IN THE ABSENCE OF ANY STATUTORY DEFINITION OF SAID TERM, THAT PERSONS HOLDING INDEFINITE APPOINTMENTS, NOT LIMITED TO ONE YEAR OR LESS, MAY BE CONSIDERED REGULAR EMPLOYEES FOR PURPOSES OF THE 1938 STATUTE, BUT THAT EMPLOYEES APPOINTED FOR LIMITED PERIODS OF NOT TO EXCEED ONE YEAR--- WHO ARE CONSIDERED TO BE TEMPORARY EMPLOYEES--- MAY NOT QUALIFY AS REGULAR EMPLOYEES UNDER SAID STATUTE. * * * (ITALICS SUPPLIED.)

YOUR LETTER EXPRESSES THE VIEW THAT:

SINCE THE AUTHORITY TO PAY EMPLOYEES PAID AT PER DIEM, PER HOUR OR PIECE WORK RATES FOR DAYS ON WHICH THEY PERFORM NO SERVICE BECAUSE SUCH DAYS ARE (1) NATIONAL HOLIDAYS, (2) DAYS DECLARED HOLIDAYS BY STATUTE OR EXECUTIVE ORDER, OR (3) DAYS ON WHICH EMPLOYEES ARE EXCUSED FROM DUTY BY ADMINISTRATIVE ORDER, IS CONTAINED IN THE JOINT RESOLUTION OF JUNE 29, 1938, AS AMENDED BY PUBLIC LAW NO. 395, IT SEEMS APPROPRIATE THAT THE TERM "REGULAR EMPLOYEES" BE DEFINED UNIFORMLY FOR ALL THREE TYPES OF NON-WORK DAYS. * * *

IT WILL BE NOTED FROM THE QUOTED PART OF THE DECISION (32 COMP. GEN. 177) THAT THE DEFINITION OF THE TERM "REGULAR EMPLOYEES" THERE STATED WAS "IN THE ABSENCE OF ANY STATUTORY DEFINITION OF SAID TERM.' HOWEVER, SINCE THERE NOW HAS BEEN ISSUED A REGULATION HAVING THE FORCE AND EFFECT OF LAW WHICH EXPRESSLY DEFINES THE TERM "REGULAR EMPLOYEES" FOR THE PURPOSE OF THE 1954 AMENDMENT, I NOW PERCEIVE NO SOUND REASON WHY THE SAME DEFINITION SHOULD NOT BE USED IN ADMINISTERING ALL SEGMENTS OF THE 1938 STATUTE. ACCORDINGLY, THIS OFFICE WILL INTERPOSE NO OBJECTION IF THE DEFINITION OF ,REGULAR EMPLOYEES" AS CONTAINED IN THE REGULATIONS OF THE CIVIL SERVICE COMMISSION IS ADOPTED FOR UNIFORM USE UNDER THE 1938 ACT, AS AMENDED.