B-23404, FEBRUARY 11, 1942, 21 COMP. GEN. 764

B-23404: Feb 11, 1942

Additional Materials:

Contact:

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

 

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

WHO ARE APPOINTED OR EMPLOYED WITHOUT LIMITATION OF TIME OR OTHER QUALIFYING CONDITION IN THEIR TENURE OR PERIODS OF WORK ARE. "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY" WITHIN THE MEANING OF THE HOLIDAY LAW OF JUNE 29. ARE ENTITLED TO COMPENSATION FOR ANY HOLIDAY THEREAFTER. ON WHICH THEY ARE PREVENTED FROM WORKING SOLELY BY THE OCCURRENCE OF THE HOLIDAY. 19 COMP. 1942: I HAVE YOUR LETTER OF JANUARY 19. AS FOLLOWS: ATTENTION IS INVITED TO THE ENCLOSED FILE AND LETTER DATED DECEMBER 13. WHOSE NAMES ARE ENTERED ON THE ENCLOSED VOUCHER. IT IS THE OPINION OF THIS OFFICE THAT THE EMPLOYEES LISTED ARE ENTITLED TO PAY FOR THE HOLIDAY IN QUESTION IN VIEW OF THE INFORMATION CONTAINED IN THE SECOND INDORSEMENT DATED DECEMBER 3.

B-23404, FEBRUARY 11, 1942, 21 COMP. GEN. 764

HOLIDAYS - COMPENSATION - PER DIEM EMPLOYEES PER DIEM EMPLOYEES, INCLUDING UNSKILLED LABORERS, WHO ARE APPOINTED OR EMPLOYED WITHOUT LIMITATION OF TIME OR OTHER QUALIFYING CONDITION IN THEIR TENURE OR PERIODS OF WORK ARE, FROM THE DATE OF THEIR APPOINTMENT OR EMPLOYMENT,"REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY" WITHIN THE MEANING OF THE HOLIDAY LAW OF JUNE 29, 1938, AND, AS SUCH, ARE ENTITLED TO COMPENSATION FOR ANY HOLIDAY THEREAFTER, INCLUDING ANY OCCURRING DURING THE FIRST 30 DAYS OF THEIR EMPLOYMENT, ON WHICH THEY ARE PREVENTED FROM WORKING SOLELY BY THE OCCURRENCE OF THE HOLIDAY. 19 COMP. GEN. 426, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, FEBRUARY 11, 1942:

I HAVE YOUR LETTER OF JANUARY 19, 1942, AS FOLLOWS:

ATTENTION IS INVITED TO THE ENCLOSED FILE AND LETTER DATED DECEMBER 13, 1941, RELATING TO PAY OF CERTAIN CIVILIAN EMPLOYEES, WHOSE NAMES ARE ENTERED ON THE ENCLOSED VOUCHER.

IT IS THE OPINION OF THIS OFFICE THAT THE EMPLOYEES LISTED ARE ENTITLED TO PAY FOR THE HOLIDAY IN QUESTION IN VIEW OF THE INFORMATION CONTAINED IN THE SECOND INDORSEMENT DATED DECEMBER 3, 1941. HOWEVER, IT IS REQUESTED THAT A DECISION BE RENDERED IN ORDER THAT THIS OFFICE MAY BE ABLE TO GIVE A DEFINITE REPLY TO THE QUESTION INVOLVED, SHOULD IT ARISE AGAIN IN THE FUTURE.

THE REFERRED-TO LETTER OF DECEMBER 13, 1941, IS FROM LT. COL. JOHN L. SCOTT, FINANCE OFFICER, UNITED STATES ARMY, COLUMBUS, OHIO, AND READS AS FOLLOWS:

1. ENCLOSED HEREWITH VOUCHER IN FAVOR OF CIVILIAN EMPLOYEES (PER DIEM LABORERS), COVERING PAY FOR A HOLIDAY, NOVEMBER 11, 1941, SUBMITTED BY THE ORDNANCE OFFICER, COLUMBUS GENERAL DEPOT, COLUMBUS, OHIO.

2. RECORDS OF THIS OFFICE INDICATE THAT ALL CIVILIAN EMPLOYEES LISTED ON THE ATTACHED VOUCHER WERE EMPLOYED AND ENTERED ON DUTY ON OCTOBER 20, 1941.

3. IN VIEW OF DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES, B -4677, OCTOBER 9, 1939, AS QUOTED IN FINANCE BULLETIN NO. 81, DATED OCTOBER 26, 1939, DOUBT EXISTS AS TO THE LEGALITY OF PAYMENT.

4. THIS VOUCHER HAS BEEN SUBMITTED TO ME AS A DISBURSING OFFICER OF THE UNITED STATES ARMY FOR PAYMENT, AND IS FORWARDED FOR ADVANCE DECISION UNDER THE PROVISIONS OF PARAGRAPH 23, FINANCE CIRCULAR NO. B 1, DATED JULY 19, 1940.

THE SUPPLEMENTAL VOUCHER IN QUESTION PROPOSES PAYMENT OF COMPENSATION FOR NOVEMBER 11, 1941, ARMISTICE DAY, TO FOUR PER DIEM EMPLOYEES OF THE ORDNANCE DEPARTMENT, WAR DEPARTMENT, THE COMPENSATION FOR THAT DAY HAVING BEEN WITHHELD ON THE REGULAR PAY ROLL FOR THE PERIOD INCLUDING THE HOLIDAY. THE DOUBT IN THE MATTER APPEARS TO HAVE ARISEN BY REASON OF THE PROVISIONS OF WAR DEPARTMENT FINANCE BULLETIN NO. 81, DATED OCTOBER 26, 1939, READING AS FOLLOWS:

SECTION DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES ---III

C. CIVILIAN EMPLOYEES--- SUNDAYS AND HOLIDAYS--- COMPENSATION--- "WHEN ACTUALLY EMPLOYED" EMPLOYEES.--- WHETHER A PERSON IS A "REGULAR EMPLOYEE OF THE FEDERAL GOVERNMENT" WITHIN THE MEANING OF THE HOLIDAY COMPENSATION ACT OF JUNE 29, 1938 (52 STAT. 1246), DEPENDS UPON ALL THE FACTS WITH RESPECT TO THE PURPOSE, NATURE, TENURE, AND/OR DURATION OF HIS EMPLOYMENT.

THE DESIGNATION "WHEN ACTUALLY EMPLOYED" IS NOT THE SOLE DETERMINING FACTOR AS TO WHETHER AN EMPLOYEE SO DESIGNATED IS A "REGULAR EMPLOYEE OF THE FEDERAL GOVERNMENT" WITHIN THE MEANING OF THE HOLIDAY COMPENSATION ACT OF JUNE 29, 1938 (52 STAT. 1246), BUT GENERALLY ONE SO APPOINTED AND PAID DOES NOT HAVE THAT STATUS BECAUSE THE TERM IS ORDINARILY DESCRIPTIVE OF A DAY-TO-DAY WORKER WHO IS NOT REQUIRED TO SERVE FOR CONTINUOUS AND COMPARATIVELY INDEFINITE PERIODS, OR TO BE AT HAND FOR SERVICE IF NOT EXCUSED IN ADVANCE.

PER DIEM EMPLOYEES, EVEN THOUGH APPOINTED AND PAID "WHEN ACTUALLY EMPLOYED," WHO ARE ENGAGED FOR INDEFINITE PERIODS OR FOR PERIODS OF NOT LESS THAN SIX MONTHS, NOT INTERMITTENTLY AT THEIR OWN VOLITION, AND NOT INCLUDING TEAMSTERS, VEHICLE OPERATORS, ETC. WHO ARE ENGAGED IN CONNECTION WITH HIRE OF THEIR EQUIPMENT, ARE "REGULAR EMPLOYEES" FOR HOLIDAY COMPENSATION PURPOSES OF THE ACT OF JUNE 29, 1938 (52 STAT. 1246), AND MAY BE PAID ACCORDINGLY IF THEY HAVE BEEN CONTINUOUSLY ON DUTY DURING THE 30 DAYS NEXT PRECEDING THE DAY IN QUESTION AND IF ALL OTHER CONDITIONS OF THE STATUTE HAVE BEEN MET, AND THE HOLIDAYS FOR WHICH THEY MAY BE PAID INCLUDE MONDAYS AND OTHER DAYS (OBSERVED WHERE HOLIDAYS FALL ON SUNDAYS) SPECIFIED IN EXECUTIVE ORDER NO. 1076, MAY 22, 1909.

WITH THE PAPERS FORWARDED TO THIS OFFICE IS SECOND INDORSEMENT DATED DECEMBER 3, 1941, FROM THE ORDNANCE OFFICE, WASHINGTON, D.C., TO THE ORDNANCE SUPPLY OFFICER, COLUMBUS GENERAL DEPOT, READING AS FOLLOWS:

1. THE DECISION OF THE COMPTROLLER REFERRED TO IN BASIC LETTER BY THE FINANCE OFFICER, U.S. ARMY, APPEARS TO RELATE ENTIRELY TO PER DIEM EMPLOYEES APPOINTED AND PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS. ACCORDING TO THE RECORDS OF THIS OFFICE, THE LABORERS REFERRED TO IN BASIC COMMUNICATION WERE REGULARLY APPOINTED UNSKILLED LABORERS, APPOINTED WITHOUT LIMIT WITH A PERMANENT STATUS AS UNSKILLED LABORERS, AND ARE ACCORDINGLY TO BE CONSIDERED AS REGULAR EMPLOYEES AND SUBJECT TO THE SAME HOURS OF DUTY AS THOSE APPLYING TO OTHER ORDNANCE EMPLOYEES AT YOUR STATION. UNDER THE CIRCUMSTANCES, IT IS THE OPINION OF THIS OFFICE THAT THE EMPLOYEES IN QUESTION ARE ENTITLED TO COMPENSATION FOR HOLIDAYS OCCURRING DURING THEIR REGULAR TOUR OF DUTY WHEN THEIR FAILURE TO PERFORM WORK ON THE DAYS IN QUESTION IS OCCASIONED SOLELY BY THE OCCURRENCE OF A HOLIDAY.

THE ACT OF JUNE 29, 1938, 52 STAT. 1246, PROVIDES AS FOLLOWS:

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.

THE VIEW EXPRESSED IN THE INDORSEMENT DATED DECEMBER 3, 1941, ABOVE QUOTED, IS SUBSTANTIALLY CORRECT. THE RULES STATED IN THE DECISION OF THIS OFFICE DATED OCTOBER 9, 1939, 19 COMP. GEN. 426, UPON WHICH FINANCE BULLETIN NO. 81, SUPRA, WAS BASED, RELATED ONLY TO EMPLOYEES WHO ARE CLASSED AS ,INDEFINITE," INCLUDING EMPLOYEES PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED," AS DISTINGUISHED FROM EMPLOYEES CLASSED AS "PERMANENT.' THE DECISION DOES NOT HOLD THAT ALL PER DIEM EMPLOYEES MUST SERVE 30 DAYS BEFORE THEY BECOME ENTITLED TO HOLIDAY PAY UNDER THE PROVISIONS OF THE ACT OF JUNE 29, 1938, 52 STAT. 1246, FOR HOLIDAYS ON WHICH THEY DO NOT WORK. NOTE, PARTICULARLY, THAT THE RULE STATED IN THAT DECISION WAS AMPLIFIED BY DECISION OF JANUARY 28, 1941, 20 COMP. GEN. 411, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

"INDEFINITE EMPLOYEES," AS DEFINED IN THE UNIFORM ANNUAL LEAVE REGULATIONS, ARE NOT TO BE REGARDED AS "REGULAR EMPLOYEES" ENTITLED TO HOLIDAY COMPENSATION UNDER THE PER DIEM, ETC., EMPLOYEE HOLIDAY PAY STATUTE OF JUNE 29, 1938, UNLESS AND UNTIL THEY HAVE SERVED SIX MONTHS AS SUCH INDEFINITE EMPLOYEES, BUT THEREAFTER SO LONG AS SUCH STATUS CONTINUES, THEY MAY BE ALLOWED HOLIDAY COMPENSATION TO WHICH THEY MAY BE OTHERWISE ENTITLED UNDER THE STATUTE, ALTHOUGH THEY MAY NOT ACTUALLY WORK AND BE IN A PAY STATUS ON ALL WORK DAYS IN THE MONTH PRECEDING THE HOLIDAY.

PER DIEM EMPLOYEES, INCLUDING UNSKILLED LABORERS, WHO ARE APPOINTED OR EMPLOYED WITHOUT LIMITATION OF TIME OR OTHER QUALIFYING CONDITION IN THEIR TENURE OR PERIODS OF WORK, ARE "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY" WITHIN THE MEANING OF THE HOLIDAY LAW OF JUNE 29, 1938. IF THEY ARE PREVENTED FROM WORKING ON A HOLIDAY OCCURRING AT ANY TIME AFTER THEIR APPOINTMENT OR EMPLOYMENT, INCLUDING THE FIRST 30 DAYS, SOLELY BECAUSE OF THE OCCURRENCE OF THE HOLIDAY, THEY ARE ENTITLED TO HOLIDAY PAY WHETHER OR NOT THEY WORK ON SUCH HOLIDAY. IT IS UNNECESSARY FOR SUCH PER DIEM EMPLOYEES TO WORK 30 DAYS BEFORE THEY MAY BE CLASSED AS "REGULAR" EMPLOYEES.

ACCORDINGLY, REGARDLESS OF THE FACT THAT THE FOUR EMPLOYEES INVOLVED WERE APPOINTED OCTOBER 20, 1941, LESS THAN 30 DAYS BEFORE NOVEMBER 11, 1941, THEY ARE ENTITLED TO PAY FOR SUCH HOLIDAY, IT HAVING BEEN STATED BY THE ORDNANCE SUPPLY OFFICER, COLUMBUS GENERAL DEPOT, IN FIRST INDORSEMENT TO THE CHIEF OF ORDNANCE, DATED NOVEMBER 27, 1941, THAT THEY "WORKED THE DAY PRECEDING AND THE DAY FOLLOWING THE HOLIDAYS IN QUESTION.' PAYMENT ON THE VOUCHER IN QUESTION, RETURNED HEREWITH, IS AUTHORIZED.