B-27612, JULY 30, 1942, 22 COMP. GEN. 93

B-27612: Jul 30, 1942

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SATURDAY HALF-HOLIDAYS - PER DIEM EMPLOYEES AN EMPLOYEE WHO IS AUTHORIZED AND REQUIRED TO BE EMPLOYED AND PAID ON A PER DIEM. BASIS AND WHO WORKS 4 HOURS OR MORE ON SATURDAY IS ENTITLED UNDER THE SATURDAY HALF-HOLIDAY LAW OF MARCH 3. 1942: I HAVE YOUR LETTER OF JULY 22. AS FOLLOWS: THE CONSTITUENT AGENCIES OF THE OFFICE FOR EMERGENCY MANAGEMENT HAVE APPOINTED CONSULTANTS ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS TO ASSIST THE RESPECTIVE AGENCIES IN VARIOUS SPECIALIZED FIELDS. THE CONTINUITY OF THEIR SERVICES IS SOMEWHAT VARIED. A MAJORITY OF THESE APPOINTEES IS EMPLOYED INTERMITTENTLY. THESE CONSULTANTS IN THE PAST HAVE BEEN AFFORDED. WITH PAY OR EARNINGS FOR THE DAY THE SAME AS ON OTHER DAYS WHEN FULL TIME IS WORKED.

B-27612, JULY 30, 1942, 22 COMP. GEN. 93

SATURDAY HALF-HOLIDAYS - PER DIEM EMPLOYEES AN EMPLOYEE WHO IS AUTHORIZED AND REQUIRED TO BE EMPLOYED AND PAID ON A PER DIEM, AS DISTINGUISHED FROM AN HOURLY, BASIS AND WHO WORKS 4 HOURS OR MORE ON SATURDAY IS ENTITLED UNDER THE SATURDAY HALF-HOLIDAY LAW OF MARCH 3, 1931, TO A FULL DAY'S COMPENSATION AT THE PER DIEM RATE FIXED IN HIS APPOINTMENT OR CONTRACT OF EMPLOYMENT, REGARDLESS OF THE TENURE OF HIS EMPLOYMENT AND EVEN THOUGH HE WORKS ONLY FOR SHORT PERIODS OR INTERMITTENTLY.

COMPTROLLER GENERAL WARREN TO THE LIAISON OFFICER FOR EMERGENCY MANAGEMENT, EXECUTIVE OFFICE OF THE PRESIDENT, JULY 30, 1942:

I HAVE YOUR LETTER OF JULY 22, 1942, REFERENCE FI-20, AS FOLLOWS:

THE CONSTITUENT AGENCIES OF THE OFFICE FOR EMERGENCY MANAGEMENT HAVE APPOINTED CONSULTANTS ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS TO ASSIST THE RESPECTIVE AGENCIES IN VARIOUS SPECIALIZED FIELDS. THE CONTINUITY OF THEIR SERVICES IS SOMEWHAT VARIED, DEPENDING LARGELY UPON THE IMMEDIATE REQUIREMENTS OF THE RESPECTIVE AGENCIES. A MAJORITY OF THESE APPOINTEES IS EMPLOYED INTERMITTENTLY, WORKING, WHEN ON DUTY, SOMETIMES AS MANY AS 21 HOURS PER DAY BUT RECEIVING COMPENSATION ON A PER DIEM BASIS, IN NO CASE IN EXCESS OF THE PRESCRIBED WORKING HOURS.

THESE EMPLOYEES MAY BE REQUIRED TO WORK CONTINUOUSLY EVERY DAY FOR ONE MONTH OR MORE AND THEN WORK INTERMITTENTLY FOR A CONSIDERABLE TIME THEREAFTER. ON THE OTHER HAND THE NATURE OF THEIR WORK MAY REQUIRE THEM TO WORK ALTERNATELY, INTERMITTENTLY AND CONTINUOUSLY. THESE CONSULTANTS IN THE PAST HAVE BEEN AFFORDED, FOR SERVICES RENDERED ON SATURDAYS, THE BENEFITS OF THE SATURDAY HALF HOLIDAY ACT OF MARCH 3, 1931, 46 STAT. 1482. THIS ACT PROVIDES IN PART:

"THAT ON AND AFTER THE EFFECTIVE DATE OF THIS ACT, FOUR HOURS, EXCLUSIVE OF TIME FOR LUNCHEON, SHALL CONSTITUTE A DAY'S WORK ON SATURDAYS THROUGHOUT THE YEAR, WITH PAY OR EARNINGS FOR THE DAY THE SAME AS ON OTHER DAYS WHEN FULL TIME IS WORKED, FOR ALL CIVIL EMPLOYEES OF THE FEDERAL GOVERNMENT AND THE DISTRICT OF COLUMBIA, EXCLUSIVE OF EMPLOYEES OF THE POSTAL SERVICE, EMPLOYEES OF THE PANAMA CANAL ON THE ISTHMUS, AND EMPLOYEES OF THE INTERIOR DEPARTMENT IN THE FIELD, WHETHER ON THE HOURLY, PER DIEM, PER ANNUM, PIECEWORK, OR OTHER BASIS.'

THIS STATUTE IS CLEAR, SPECIFIC, AND UNAMBIGUOUS. IT ENUMERATES ALL CLASSES OF PERSONS WHO WERE INTENDED TO BE EXCLUDED FROM THE BENEFITS OF THE ACT AND PROVIDES IN ADDITION THERETO THAT ALL OTHER CIVIL EMPLOYEES OF THE FEDERAL GOVERNMENT ARE TO BE AFFECTED THEREBY.

THE CONSULTANTS APPOINTED BY THE CONSTITUENT AGENCIES OF THE OFFICE FOR EMERGENCY MANAGEMENT ARE OBVIOUSLY "CIVIL EMPLOYEES OF THE FEDERAL GOVERNMENT," WITHIN THE PURVIEW OF THIS ACT. THEREFORE, UNLESS THEY COME WITHIN THE CATEGORIES OF THOSE EMPLOYEES SPECIFICALLY EXCEPTED FROM THE BENEFITS OF THIS ACT, IT SHOULD NECESSARILY FOLLOW THAT THEY ARE TO BE AFFORDED THE BENEFITS OF THE SATURDAY HALF HOLIDAY LAW.

IT IS A WELL-ACCEPTED RULE OF CONSTRUCTION THAT WHERE A STATUTE SPECIFICALLY EXCLUDES CERTAIN CLASSES OF PERSONS FROM ITS BENEFITS, ALL OTHERS UNDER THE DOCTRINE OF "INCLUSION AND EXCLUSION" ARE PRESUMED TO HAVE BEEN INTENDED TO BE INCLUDED. THE THREE CLASSES OF EMPLOYEES SPECIFICALLY EXCLUDED BY THE TERMS OF THE STATUTES ARE (1) EMPLOYEES OF THE POSTAL SERVICE (2) EMPLOYEES OF THE PANAMA CANAL ON THE ISTHMUS (3) EMPLOYEES OF THE DEPARTMENT OF INTERIOR IN THE FIELD, WHETHER ON THE HOURLY, PER DIEM, PIECEWORK, OR OTHER BASIS. SINCE THE CONSULTANTS OF THE OFFICE FOR EMERGENCY MANAGEMENT EMPLOYED ON A PER DIEM W.A.E. BASIS ARE NOT AMONG THE THREE CLASSES OF EMPLOYEES ENUMERATED IN THE STATUTE AS THOSE WHICH ARE TO BE EXCEPTED FROM ITS BENEFITS, THERE APPEARS TO BE NO BASIS FOR CONSTRUING THAT THESE EMPLOYEES ARE NOT TO BE AFFORDED THE BENEFITS OF THIS STATUTE.

THIS OFFICE IS COGNIZANT OF THE SEVERAL DECISIONS RENDERED BY A FORMER COMPTROLLER GENERAL HOLDING THAT EMPLOYEES FOR WHOM NO REGULAR HOURS OF WORK ARE FIXED, WHOSE EMPLOYMENT IS PART TIME OR INTERMITTENT, AND WHO ARE PAID BY THE HOUR FOR THE TIME ACTUALLY WORKED, ARE NOT ENTITLED TO THE BENEFITS OF THE ACT OF MARCH 3, 1931, 46 STAT. 1482, GRANTING SATURDAY HALF HOLIDAYS TO CERTAIN GOVERNMENT EMPLOYEES, NOTWITHSTANDING THAT SOME OF THESE EMPLOYEES MAY AT TIMES WORK CONTINUOUSLY FOR A WEEK OR MORE. SEE 10 C.G. 518, 14 C.G. 697, AND 15 C.G. 800.

THE CONSULTANTS EMPLOYED BY THE OFFICE FOR EMERGENCY MANAGEMENT, ALTHOUGH THEIR EMPLOYMENT MAY BE INTERMITTENT, ARE NOT PAID BY THE HOUR FOR THE TIME ACTUALLY WORKED, BUT ARE COMPENSATED ON A PER DIEM BASIS BASED UPON A PROPORTIONAL PART OF A DAY, REDUCED TO HOURS WHEN LESS THAN THE PRESCRIBED HOURS HAVE BEEN WORKED. FURTHERMORE, THIS OFFICE FINDS NOTHING IN THE PHRASEOLOGY OF THIS STATUTE WHICH SETS FORTH AS A CONDITION PRECEDENT TO THE PAYMENT FOR EIGHT HOURS SALARY ON SATURDAY THE REQUIREMENT THAT THE EMPLOYMENT MUST BE CONTINUOUS. IN ADDITION THERETO, IT IS EVIDENT THAT WHAT CONSTITUTES CONTINUOUS EMPLOYMENT AND AT WHAT STAGE IS THE DETERMINATION TO BE MADE THAT THE EMPLOYMENT IS OR IS NOT CONTINUOUS IS A MATTER WHICH IS NOT SUSCEPTIBLE OF ANY SET STANDARD.

IN VIEW OF THE FOREGOING, WE WOULD APPRECIATE YOUR ADVISING US WHETHER YOUR OFFICE WILL BE REQUIRED TO OBJECT TO THE PAYMENT OF SALARY TO CONSULTANTS APPOINTED BY THE CONSTITUENT AGENCIES OF THE OFFICE FOR EMERGENCY MANAGEMENT ON A PER DIEM WAGE BASIS WHO WORK INTERMITTENTLY AND WHEN THEY ARE AFFORDED THE BENEFIT OF THE SATURDAY HALF HOLIDAY ACT.

IN THE DECISION OF MARCH 18, 1935, 14 COMP. GEN. 697, WHEREIN WAS CONSIDERED THE CASE OF AN ARCHITECTURAL CONSULTANT WHO WAS APPOINTED AND PAID AT THE RATE OF $25 PER DIEM WHILE ACTUALLY EMPLOYED, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

AN EMPLOYEE WHOSE COMPENSATION IS AUTHORIZED BY LAW TO BE PAID ON A PER DIEM BASIS, ENGAGED FULL TIME FOR AN INDEFINITE PERIOD, IS ENTITLED TO A DAY'S COMPENSATION FOR FOUR HOURS WORK ON SATURDAY UNDER THE SATURDAY HALF HOLIDAY LAW OF MARCH 3, 1931, 46 STAT. 1482, WHICH STATUTORY RIGHT MAY NOT BE DEFEATED BY A PROVISION IN THE APPOINTMENT THAT COMPENSATION WILL BE PAYABLE ONLY "WHEN ACTUALLY EMPLOYED.' 10 COMP. GEN. 464; ID. 496; ID. 518; DISTINGUISHED.

WHILE THE FACTS IN THAT CASE SHOW THAT THE CONSULTANT PERFORMED CONTINUOUS SERVICE FOR AN INDEFINITE PERIOD OF TIME, THE SAME RULE MUST BE AND IS APPLICABLE TO CONSULTANTS WHO ARE AUTHORIZED TO BE EMPLOYED AND PAID ON A PER DIEM BASIS, AS DISTINGUISHED FROM AN HOURLY BASIS, EVEN THOUGH THEY MAY WORK ONLY FOR SHORT PERIODS OR INTERMITTENTLY. UNQUESTIONABLY, THE SATURDAY HALF-HOLIDAY LAW, QUOTED IN YOUR LETTER PROVIDES THAT "FOUR HOURS, EXCLUSIVE OF TIME FOR LUNCHEON, SHALL CONSTITUTE A DAY'S WORK ON SATURDAYS THROUGHOUT THE YEAR.' HENCE, IF AN EMPLOYEE IS AUTHORIZED AND REQUIRED TO BE EMPLOYED AND PAID ON A PER DIEM BASIS, AS DISTINGUISHED FROM AN HOURLY BASIS, AND HE WORKS ON SATURDAY 4 HOURS OR MORE, HE IS ENTITLED TO A FULL DAY'S COMPENSATION FOR SATURDAY AT THE RATE OF PER DIEM FIXED IN HIS APPOINTMENT OR CONTRACT OF EMPLOYMENT REGARDLESS OF THE TENURE OF HIS EMPLOYMENT AND EVEN THOUGH HE WORKS ONLY FOR SHORT PERIODS OR INTERMITTENTLY. I KNOW OF NO DECISION OF THIS OFFICE WHICH HOLDS TO THE CONTRARY. COMPARE 10 COMP. GEN. 497.

THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.