B-18863, AUGUST 5, 1941, 21 COMP. GEN. 101

B-18863: Aug 5, 1941

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LEAVES OF ABSENCE - ANNUAL AND SICK - TEMPORARY EMPLOYEES AFTER THE FIRST MONTH OF SERVICE ANNUAL LEAVE MAY BE CREDITED TO TEMPORARY EMPLOYEES AT THE BEGINNING OF THE MONTH IN WHICH IT ACCRUES BUT IT IS TO BE NOTED THAT SUCH EMPLOYEES ARE NOT ENTITLED TO SUCH LEAVE FOR A FRACTIONAL MONTH'S SERVICE. CLASSED AS TEMPORARY UNDER THE CIVIL SERVICE RULES BUT NOT AS TEMPORARY UNDER THE LEAVE REGULATIONS ARE ENTITLED TO PAY ON HOLIDAYS DECLARED BY LAW. MAY NOT BE CHARGED ANNUAL LEAVE EXCEPT DURING A PERIOD AN OFFICE MAY BE CLOSED FOR ADMINISTRATIVE REASONS AND THE EMPLOYEES ARE SPECIFICALLY REQUIRED BY ADMINISTRATIVE ACTION TO TAKE LEAVE. TEMPORARY EMPLOYEES WHOSE COMPENSATION IS FIXED AT A RATE PER DAY.

B-18863, AUGUST 5, 1941, 21 COMP. GEN. 101

LEAVES OF ABSENCE - ANNUAL AND SICK - TEMPORARY EMPLOYEES AFTER THE FIRST MONTH OF SERVICE ANNUAL LEAVE MAY BE CREDITED TO TEMPORARY EMPLOYEES AT THE BEGINNING OF THE MONTH IN WHICH IT ACCRUES BUT IT IS TO BE NOTED THAT SUCH EMPLOYEES ARE NOT ENTITLED TO SUCH LEAVE FOR A FRACTIONAL MONTH'S SERVICE. TEMPORARY EMPLOYEES WITHIN THE MEANING OF THE LEAVE REGULATIONS PAID ON AN ANNUAL OR MONTHLY BASIS AND "REGULAR EMPLOYEES" WITHIN THE MEANING OF THE HOLIDAY STATUTE OF JUNE 29, 1938, CLASSED AS TEMPORARY UNDER THE CIVIL SERVICE RULES BUT NOT AS TEMPORARY UNDER THE LEAVE REGULATIONS ARE ENTITLED TO PAY ON HOLIDAYS DECLARED BY LAW, EXECUTIVE ORDER, OR ADMINISTRATIVE ORDER, AND MAY NOT BE CHARGED ANNUAL LEAVE EXCEPT DURING A PERIOD AN OFFICE MAY BE CLOSED FOR ADMINISTRATIVE REASONS AND THE EMPLOYEES ARE SPECIFICALLY REQUIRED BY ADMINISTRATIVE ACTION TO TAKE LEAVE. TEMPORARY EMPLOYEES WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE-WORK BASIS BUT WHO MAY NOT BE CLASSED AS "REGULAR EMPLOYEES" WITHIN THE MEANING OF THE HOLIDAY STATUTE APPROVED JUNE 29, 1938, ARE NOT ENTITLED TO HOLIDAY PAY AND PAYMENT MAY NOT BE MADE TO THEM FOR HOLIDAYS BY MAKING A DEDUCTION FROM ANNUAL LEAVE TO THEIR CREDIT. CONTINUITY OF SERVICE OF TEMPORARY EMPLOYEES FOR ANNUAL LEAVE EARNING PURPOSES IS NOT BROKEN BY SUNDAYS NOT OCCURRING WITHIN A REGULAR TOUR OF DUTY, OR HOLIDAYS OR NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER, NOR BY FURLOUGH WITHOUT PAY FOR LACK OF WORK OR FUNDS IF SUCH PERIOD IS ADMINISTRATIVELY PERMITTED TO BE "BRIDGED OVER" BY ACCRUED ANNUAL LEAVE. TEMPORARY EMPLOYEE TRANSFERRED FROM ONE BUREAU OF WAR DEPARTMENT TO ANOTHER WITHOUT BREAK IN SERVICE MAY TRANSFER HIS ACCRUED ANNUAL AND SICK LEAVE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, AUGUST 5, 1941:

I HAVE YOUR LETTER OF JULY 14, 1941, AS FOLLOWS:

ATTENTION IS INVITED TO THE ENCLOSED COMMUNICATION FROM THE JEFFERSON PROVING GROUND, MADISON, INDIANA. REQUEST IS MADE THAT DECISIONS BE GIVEN ON QUESTIONS C, D, AND E, CONTAINED HEREIN. UNLESS OTHERWISE ADVISED, IT IS CONTEMPLATED THAT INFORMATION IN REPLY TO QUESTION A AND B WILL BE GIVEN AS FOLLOWS:

A. ATTENTION IS INVITED TO SEC. 14, PUBLIC 471, 74TH CONGRESS, WHICH READS "AFTER THE FIRST MONTH OF SERVICE SUCH LEAVE MAY BE CREDITED AT THE BEGINNING OF THE MONTH IN WHICH IT ACCRUES.' A TEMPORARY EMPLOYEE MAY BE GRANTED THE LEAVE TO HIS CREDIT AT THE BEGINNING OF THE SECOND MONTH OF HIS SERVICE.

B. WHERE A NON-WORK DAY IS ORDERED BY THE COMMANDING OFFICER OF A STATION, A DEDUCTION MAY BE MADE FROM ANNUAL LEAVE OF A TEMPORARY EMPLOYEE SHOULD HE HAVE SUCH LEAVE TO HIS CREDIT; IF NOT, DEDUCTION MAY BE MADE FROM THE PAY OF SUCH AN EMPLOYEE.

THE REFERRED-TO COMMUNICATION FROM THE CHIEF CLERK, JEFFERSON PROVING GROUND, MADISON, INDIANA, IS DATED MAY 28, 1941, AND READS AS FOLLOWS: SUBJECT: TEMPORARY EMPLOYEES, PARAGRAPH 102, REGULATIONS GOVERNING CIVILIAN EMPLOYEES, CIRCULAR 1-15, PAGE 97-102. TO: WAR DEPARTMENT, CIVILIAN PERSONNEL DIVISION, WASHINGTON, D.C.

1. I WOULD APPRECIATE RECEIVING A REPLY TO THE FOLLOWING QUESTIONS CONCERNING SUBJECT MATTER STATED ABOVE.

A. DOES A TEMPORARY EMPLOYEE PAID ON AN ANNUAL BASIS HAVE A RIGHT TO USE 2 1/2 DAYS ANNUAL LEAVE FROM THE BEGINNING OF THE FIRST MONTH'S SERVICE AND PRIOR TO ITS ACCRUAL?

B. IS THERE A DEDUCTION FROM ANNUAL LEAVE OR FROM THE PAY OF TEMPORARY EMPLOYEES WHERE A NON-WORK DAY IS ORDERED BY THE COMMANDING OFFICER OF A STATION OR IN THE CASE OF A FEDERAL OLIDAY?

C. DOES A TEMPORARY EMPLOYEE TRANSFERRED FROM THE QUARTERMASTER DEPARTMENT TO THE ORDNANCE DEPARTMENT AT THE JEFFERSON PROVING GROUND WITHOUT BREAK IN SERVICE HAVE THE RIGHT TO THE ANNUAL AND SICK LEAVE HE ACCRUED WHILE WORKING FOR THE QUARTERMASTER DEPARTMENT?

D. DOES PARAGRAPH 102, REGULATIONS GOVERNING CIVILIAN EMPLOYEES HAVE THE EFFECT OF SUPERSEDING DECISION B-6669, DATED 11/21/39 OF THE COMPTROLLER GENERAL OF THE U.S. RELATING TO: SUNDAYS AND HOLIDAYS--- COMPENSATION OF TEMPORARY EMPLOYEES--- ETC.?

E. IS THERE A MORE RECENT DECISION MADE BY THE COMPTROLLER GENERAL ON THESE POINTS?

IN DECISION OF MAY 28, 1941, 20 COMP. GEN. 827, 830, IT WAS STATED:

SECTION 1 OF THE ANNUAL LEAVE ACT, APPROVED MARCH 14, 1936, 49STAT. 1161, CONTAINS THE FOLLOWING SENTENCE: "TEMPORARY EMPLOYEES, EXCEPT TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES, SHALL BE ENTITLED TO 2 1/2 DAYS' LEAVE FOR EACH MONTH OF SERVICE.' ALSO, SECTION 2 OF THE SICK LEAVE ACT OF THE SAME DATE, 49 STAT. 1162, CONTAINS A CORRESPONDING SENTENCE, AS FOLLOWS: "TEMPORARY EMPLOYEES, EXCEPT TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES, SHALL BE ENTITLED TO 1 1/4 DAYS' SICK LEAVE FOR EACH MONTH OF SERVICE.' SECTION 14 OF THE ANNUAL LEAVE REGULATIONS PROVIDES AS FOLLOWS:

" SEC. 14. TEMPORARY EMPLOYEES SHALL BE GRANTED 2 1/2 DAYS' LEAVE FOR EACH FULL MONTH OF SERVICE. AFTER THE FIRST MONTH OF SERVICE SUCH LEAVE MAY BE CREDITED AT THE BEGINNING OF THE MONTH IN WHICH IT ACCRUES. TEMPORARY EMPLOYEES SHALL BE CHARGED WITH ANNUAL LEAVE ONLY FOR ABSENCE ON DAYS UPON WHICH THEY WOULD OTHERWISE WORK AND RECEIVE PAY. NO CHARGE SHALL BE MADE AGAINST ANNUAL LEAVE FOR ABSENCE ON SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND NON-WORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER.'

THERE IS NO CORRESPONDING PROVISION IN THE SICK LEAVE REGULATIONS, APPARENTLY FOR THE REASON THAT THE RATE OF CREDIT PER MONTH FOR PERMANENT AND TEMPORARY EMPLOYEES IS THE SAME.

IN DECISION OF MAY 10, 1937, 16 COMP. GEN. 993, IT WAS STATED:

"IN DECISION OF APRIL 16, 1937, A-84992, 16 COMP. GEN. 934, IT WAS HELD THAT TEMPORARY EMPLOYEES ARE ENTITLED TO 2 1/2 DAYS' ANNUAL LEAVE OF ABSENCE WITH PAY INCLUSIVE OF SUNDAYS AND HOLIDAYS FOR EACH FULL MONTH OF SERVICE. THE STATUTORY GRANT OF ANNUAL LEAVE TO TEMPORARY EMPLOYEES IS CLEARLY ON A MONTHLY BASIS, THAT IS,"FOR EACH MONTH OF SERVICE.' COMPARE THIS WITH THE TERMS OF THE STATUTORY GRANT OF ANNUAL LEAVE TO PERMANENT EMPLOYEES, TO WIT,"26 DAYS' ANNUAL LEAVE WITH PAY EACH CALENDAR YEAR, EXCLUSIVE OF SUNDAYS AND HOLIDAYS.' THIS IS NOT A GRANT OF LEAVE "FOR" EACH YEAR OF SERVICE BUT ENTITLES PERMANENT EMPLOYEES TO 26 DAYS' ANNUAL LEAVE "EACH CALENDAR YEAR.'"

ACCORDINGLY, UNDER SECTION 14 OF THE ANNUAL LEAVE REGULATIONS AND THE ABOVE-QUOTED DECISIONS, TEMPORARY EMPLOYEES ARE NOT ENTITLED TO ANNUAL LEAVE FOR A FRACTIONAL MONTH'S SERVICE. THERE IS PERCEIVED NO REASON WHY THE SAME RULE SHOULD NOT BE FOR APPLICATION AS TO SICK LEAVE. COMPARE 18 COMP. GEN. 457.

ON THE BASIS OF THE CONTROLLING LAW AND REGULATIONS AND THE QUOTED DECISION, YOUR ANSWER TO QUESTION (A) IS CORRECT, EXCEPT THAT THE REFERENCE SHOULD BE TO SECTION 14 OF THE ANNUAL LEAVE REGULATIONS, EXECUTIVE ORDER NO. 8384, DATED MARCH 29, 1940, INSTEAD OF TO " SEC. 14, PUBLIC 471, 74TH CONGRESS.'

PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938, 52 STAT. 1246, PROVIDES:

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, THEY SHALL RECEIVE THE SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED.

SEC. 2. THE JOINT RESOLUTION OF JANUARY 6, 1885 ( U.S.C. TITLE 5, SEC. 86), AND ALL OTHER LAWS INCONSISTENT OR IN CONFLICT WITH THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED TO THE EXTENT OF SUCH INCONSISTENCY OR CONFLICT.

IN DECISION OF NOVEMBER 21, 1939, B-6669, 19 COMP. GEN. 511, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

"TEMPORARY EMPLOYEES" AS DEFINED IN THE UNIFORM LEAVE REGULATIONS--- "THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS" -- ARE NOT "REGULAR EMPLOYEES" WITHIN THE MEANING OF THE PER DIEM, ETC., EMPLOYEE HOLIDAY PAY STATUTE OF JUNE 29, 1938, 52 STAT. 1246, AND THUS ARE EXCLUDED FROM ITS PROVISIONS, AND SUCH A TEMPORARY EMPLOYEE ON A 5-DAY, 40 -HOUR WEEK BASIS, IS NOT ENTITLED TO PAY FOR A HOLIDAY EVEN THOUGH IT OCCURS ON A DAY WHICH IS A PART OF HIS 40-HOUR WORK WEEK, AND EVEN THOUGH HE IS IN A DUTY OR LEAVE WITH PAY STATUS THROUGHOUT THE WORK WEEK.

THE ACT OF MARCH 2, 1940, 54 STAT. 38, PROVIDES:

THAT THE DAYS OF ANNUAL LEAVE WITH PAY PROVIDED FOR IN THE ACT OF MARCH 14, 1936 (49 STAT. 1161), AND THE DAYS OF SICK LEAVE WITH PAY PROVIDED FOR IN THE ACT OF MARCH 14, 1936 (49 STAT. 1162), SHALL MEAN DAYS UPON WHICH EMPLOYEES WOULD OTHERWISE WORK AND RECEIVE PAY, AND SHALL BE EXCLUSIVE OF SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND ALL NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER.

UNDER THE TERMS OF THE QUOTED STATUTES, AND SECTION 14 OF THE ANNUAL LEAVE REGULATIONS (INCLUDED IN THE QUOTATION FROM THE DECISION OF MAY 28, 1941, SUPRA), AS WELL AS THE RULE STATED IN THE QUOTED DECISIONS, YOUR PROPOSED ANSWER TO QUESTION (B) IS TOO BROADLY STATED. A TEMPORARY EMPLOYEE PAID ON AN ANNUAL OR MONTHLY BASIS AS DISTINGUISHED FROM TEMPORARY EMPLOYEES "WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE-WORK BASIS"--- QUOTING FROM PUBLIC RESOLUTION NO. 127, SUPRA--- ARE ENTITLED TO PAY FOR HOLIDAYS DECLARED BY LAW, EXECUTIVE ORDER OR ADMINISTRATIVE ORDER, WHETHER OR NOT THEY WORK ON SUCH HOLIDAYS AND, UNDER THE TERMS OF THE LEAVE ACT OF MARCH 2, 1940, AND SECTION 14 OF THE ANNUAL LEAVE REGULATIONS, SUPRA, THEY MAY NOT BE CHARGED LEAVE "WHERE A NONWORK DAY IS ORDERED BY THE COMMANDING OFFICER OF A STATION OR IN THE CASE OF A FEDERAL HOLIDAY" (QUOTING FROM QUESTION B), EXCEPT DURING A PERIOD AN OFFICE MAY BE CLOSED FOR ADMINISTRATIVE REASONS AND THE EMPLOYEES ARE SPECIFICALLY REQUIRED BY ADMINISTRATIVE ACTION TO TAKE LEAVE. SEE 19 COMP. GEN. 955. THE SAME WOULD APPLY TO EMPLOYEES WHO MAY BE CLASSED AS TEMPORARY UNDER THE CIVIL SERVICE RULES BUT NOT AS TEMPORARY UNDER THE LEAVE REGULATIONS, IF THEY ARE PROPERLY CLASSED AS ,REGULAR EMPLOYEES" WITHIN THE MEANING OF THE HOLIDAY STATUTE, WHOSE COMPENSATION IS PAID AT A RATE PER DAY, PER HOUR, OR ON A PIECE-WORK BASIS, THAT IS, THOSE ENTITLED TO PAY FOR HOLIDAYS UNDER THE TERMS OF PUBLIC RESOLUTION NO. 127. COMPARE 20 COMP. GEN. 411; ID. 827.

TEMPORARY EMPLOYEES WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE-WORK BASIS AND NOT PROPERLY CLASSED AS "REGULAR EMPLOYEES" (SEE 19 COMP. GEN. 511, THE SYLLABUS OF WHICH IS QUOTED ABOVE) ARE NOT ENTITLED TO HOLIDAY PAY UNDER THE PROVISIONS OF PUBLIC RESOLUTION NO. 127. PAYMENT MAY NOT BE MADE TO THEM FOR HOLIDAYS BY MAKING A DEDUCTION FROM ANNUAL LEAVE TO THEIR CREDIT EITHER IN THEIR FIRST OR SUBSEQUENT MONTHS OF SERVICE. IN FACT, THE PLAIN TERMS OF THE LEAVE ACT OF MARCH 2, 1940, AND SECTION 14 OF THE ANNUAL LEAVE REGULATIONS WOULD PRECLUDE SUCH ACTION. SEE ALSO 13 COMP. GEN. 394. OF COURSE, THIS DOES NOT MEAN THAT THE CONTINUITY OF SERVICE OF SUCH TEMPORARY EMPLOYEES IS BROKEN IN A MONTH IN WHICH A HOLIDAY OCCURS FOR WHICH THEY DO NOT EARN PAY, PRECLUDING THEM FROM EARNING LEAVE FOR THAT MONTH. ON THE CONTRARY, IF THE ONLY ABSENCES OF A TEMPORARY EMPLOYEE DURING THE MONTH COMPRISE " SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND ALL NON-WORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER" (QUOTING FROM THE ACT OF MARCH 2, 1940), THE EMPLOYEE HAS SERVED A "FULL MONTH OF SERVICE" WITHIN THE MEANING OF SECTION 14 OF THE ANNUAL LEAVE REGULATIONS AND IS ENTITLED TO 2 1/2 DAYS' LEAVE FOR THAT MONTH. ALSO, IF A TEMPORARY EMPLOYEE IS "LAID-OFF" OR FURLOUGHED WITHOUT PAY FOR LACK OF WORK OR FUNDS, HE MAY "BRIDGE OVER" SUCH PERIOD WITH ANNUAL LEAVE TO HIS CREDIT WITH THE CONSENT OF THE ADMINISTRATIVE OFFICE AND LEAVE WOULD BE EARNED FOR THAT MONTH. OTHERWISE THERE WOULD RESULT A FRACTIONAL MONTH'S SERVICE FOR WHICH NO LEAVE WOULD BE EARNED. 12 COMP. GEN. 621; 18 ID. 400; ID. 596.

QUESTION (C) IS ANSWERED IN THE AFFIRMATIVE, THE TRANSFER BEING BETWEEN TWO BUREAUS OF THE WAR DEPARTMENT. SEE 20 COMP. GEN. 332; ID. 661.

THE DECISION OF NOVEMBER 21, 1939, B-6669, 19 COMP. GEN. 511, TO WHICH REFERENCE IS MADE IN QUESTION (D), THE SYLLABUS OF WHICH HAS BEEN HEREINBEFORE QUOTED, HAS NOT BEEN OVERRULED OR MODIFIED. PARAGRAPH 102, REGULATIONS GOVERNING CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT, IS THE SAME AS SECTION 14 OF THE CURRENT ANNUAL LEAVE REGULATIONS ABOVE QUOTED. THERE IS NO CONFLICT BETWEEN THE DECISION AND THE REGULATION. THE ANSWER TO QUESTION (B), SUPRA, STATES THE PROPER RULES FOR THEIR APPLICATION.

REFERRING TO QUESTION (E) THE APPLICABLE DECISIONS OF THIS OFFICE ARE QUOTED OR CITED HEREIN.