B-38681, DECEMBER 13, 1943, 23 COMP. GEN. 425

B-38681: Dec 13, 1943

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PERSONS EMPLOYED ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS UNDER AN INSTRUMENT DESIGNATED AS A CONTRACT" ARE TO BE REGARDED AS "OFFICERS AND EMPLOYEES OF THE UNITED STATES" WITHIN THE MEANING OF SAID REGULATIONS. ARE ENTITLED TO LEAVE BENEFITS UNLESS OTHERWISE EXEMPTED THEREFROM. SPECIALISTS EMPLOYED BY THE NAVY DEPARTMENT UNDER CONTRACT ON A PER DIEM "WHEN ACTUALLY MPLOYED" BASIS WHO WORK FULL TIME FOR DEFINITE PERIODS IN EXCESS OF SIX MONTHS ARE "PERMANENT" EMPLOYEES. IF EMPLOYED FULL TIME FOR DEFINITE PERIODS OF TIME NOT EXCEEDING SIX MONTHS THEY ARE "TEMPORARY" EMPLOYEES WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE REGULATIONS. ARE ENTITLED TO LEAVE BENEFITS APPLICABLE TO PERMANENT AND TEMPORARY EMPLOYEES.

B-38681, DECEMBER 13, 1943, 23 COMP. GEN. 425

LEAVES OF ABSENCE - SPECIALISTS EMPLOYED UNDER CONTRACT ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS THE PROVISIONS IN SECTION 19 (F) AND 23 (G) OF THE ANNUAL AND SICK LEAVE REGULATIONS, RESPECTIVELY, EXEMPTING FROM LEAVE BENEFITS "PERSONS ENGAGED UNDER CONTRACT," REFER TO CONTRACTORS ENGAGED--- NOT EMPLOYED-- ON ORDER THAN A PERSONAL SERVICE BASIS (GENERALLY THOSE WHO DO NOT PERFORM THEIR WORK UNDER THE SUPERVISION AND CONTRACT OF THE GOVERNMENT), AND, THEREFORE, PERSONS EMPLOYED ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS UNDER AN INSTRUMENT DESIGNATED AS A CONTRACT" ARE TO BE REGARDED AS "OFFICERS AND EMPLOYEES OF THE UNITED STATES" WITHIN THE MEANING OF SAID REGULATIONS, AND, AS SUCH, ARE ENTITLED TO LEAVE BENEFITS UNLESS OTHERWISE EXEMPTED THEREFROM. SPECIALISTS EMPLOYED BY THE NAVY DEPARTMENT UNDER CONTRACT ON A PER DIEM "WHEN ACTUALLY MPLOYED" BASIS WHO WORK FULL TIME FOR DEFINITE PERIODS IN EXCESS OF SIX MONTHS ARE "PERMANENT" EMPLOYEES, BUT IF EMPLOYED FULL TIME FOR DEFINITE PERIODS OF TIME NOT EXCEEDING SIX MONTHS THEY ARE "TEMPORARY" EMPLOYEES WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE REGULATIONS, AND, AS SUCH, ARE ENTITLED TO LEAVE BENEFITS APPLICABLE TO PERMANENT AND TEMPORARY EMPLOYEES, RESPECTIVELY. SPECIALISTS EMPLOYED BY THE NAVY DEPARTMENT ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS UNDER CONTRACTS WHICH DO NOT SPECIFY ANY DEFINITE PERIOD OF TIME OF EMPLOYMENT, BUT WHO ARE ACTUALLY CONTINUOUSLY EMPLOYED FOR A PERIOD OF NOT LESS THAN ONE MONTH ARE "INDEFINITE" EMPLOYEES--- RATHER THAN "PART TIME" OR "INTERMITTENT"--- WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE REGULATIONS, AND, AS SUCH, ARE ENTITLED TO THE LEAVE BENEFITS APPLICABLE TO INDEFINITE EMPLOYEES. SPECIALISTS EMPLOYED BY THE NAVY DEPARTMENT ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS UNDER CONTRACTS WHICH DO NOT SPECIFY ANY DEFINITE PERIOD OF TIME OF EMPLOYMENT, BUT WHO ARE REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN ONE MONTH, ARE "INDEFINITE" EMPLOYEES WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE REGULATIONS, AND, AS SUCH, ARE ENTITLED TO LEAVE BENEFITS APPLICABLE TO INDEFINITE EMPLOYEES, BUT THEY ARE NOT ENTITLED TO LEAVE BENEFITS UNLESS THEY ARE ACTUALLY CONTINUOUSLY EMPLOYED FOR A MINIMUM PERIOD OF ONE MONTH. SPECIALISTS EMPLOYED BY THE NAVY DEPARTMENT ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS UNDER CONTRACTS REQUIRING THE PERFORMANCE OF A SPECIFIC JOB, WITH NO PERIOD OF PERFORMANCE STATED, ARE ,INDEFINITE" EMPLOYEES WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE REGULATIONS, AND, AS SUCH, ARE ENTITLED TO LEAVE BENEFITS APPLICABLE TO INDEFINITE EMPLOYEES. SPECIALISTS OF THE NAVY DEPARTMENT EMPLOYED UNDER CONTRACT ON A "WHEN ACTUALLY EMPLOYED" BASIS WHO HERETOFORE HAVE NOT BEEN GRANTED ADMINISTRATIVELY THE BENEFITS OF THE ANNUAL AND SICK LEAVE REGULATIONS ARE ENTITLED TO LEAVE BENEFITS FROM AND AFTER THE EFFECTIVE DATE OF THEIR EMPLOYMENT, IF NOT OTHERWISE EXCEPTED UNDER THE SAID REGULATIONS, BUT NO PAYMENTS MAY BE MADE TO SUCH EMPLOYEES AFTER FINAL SEPARATION FROM THE SERVICE FOR ANNUAL LEAVE ACCRUED PRIOR THERETO.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, DECEMBER 13, 1943:

I HAVE YOUR UNDATED LETTER, RECEIVED HERE DECEMBER 1, 1943, AS FOLLOWS:

CERTAIN QUESTIONS HAVE BEEN RAISED AS TO WHETHER EMPLOYEES OF THE NAVY DEPARTMENT UNDER PERSONAL SERVICE CONTRACTS ARE ENTITLED TO ANNUAL LEAVE UNDER PUBLIC NO. 471, 74TH CONGRESS, APPROVED MARCH 14, 1936, AS AMENDED, AND EXECUTIVE ORDER NO. 8384 DATED MARCH 29, 1940, AND TO SICK LEAVE UNDER PUBLIC NO. 472, 74TH CONGRESS, APPROVED MARCH 14, 1936, AS AMENDED, AND EXECUTIVE ORDER NO. 8385 DATED MARCH 29, 1940.

THE SECRETARY OF THE NAVY EMPLOYS SPECIALISTS UNDER SECTION 114 OF THE NAVAL APPROPRIATION ACT, 1944 ( PUBLIC LAW 92, 78TH CONGRESS APPROVED JUNE 26, 1943). THESE EMPLOYEES ARE PAID AT PER DIEM RATES UP TO $25, AND ARE EMPLOYED FOR VARYING PERIODS--- (1) SOME AT FULL TIME FOR SPECIFIED PERIODS UP TO ONE YEAR, (II) SOME AT PART TIME FOR SPECIFIED PERIODS UP TO ONE YEAR (III) SOME ON A BASIS OF PERFORMING WORK WHENEVER REQUIRED BY THE NAVY DEPARTMENT, AND (IV) SOME TO PERFORM A SPECIFIC JOB, WITH NO PERIOD OF TIME SPECIFIED.

AS ALL OF THESE EMPLOYEES ARE UNDER CONTRACT, THE NAVY DEPARTMENT HAS HAD SOME DOUBTS AS TO WHETHER OR NOT SUCH EMPLOYEES ARE ENTITLED TO ANNUAL LEAVE AND SICK LEAVE, FOR THE REGULATIONS SPECIFY THAT THEY ARE NOT APPLICABLE TO "PERSONS ENGAGED UNDER CONTRACT" ( SECTION 19 (F) (3) OF EXECUTIVE ORDER NO. 8384 AND SECTION 23 (G) (3) OF EXECUTIVE ORDER NO. 8385). UPON A REVIEW OF YOUR DECISION, I AM INCLINED TO THINK THAT THE NAVY EMPLOYEES UNDER PERSONAL SERVICE CONTRACTS ARE ENTITLED TO ANNUAL LEAVE AND SICK LEAVE TO THE SAME EXTENT AS ARE OTHER GOVERNMENT EMPLOYEES, NOT UNDER CONTRACT, AND THAT THE EXCLUSION UNDER THE REGULATIONS OF PERSONS ENGAGED UNDER CONTRACT PERHAPS REFERS TO PERSONS EMPLOYED UNDER CONTRACT TO DO A SPECIFIC JOB, WITH NO SPECIFICATION OF THE PERIOD OF EMPLOYMENT. THE TWO BASIC STATUTES IN THIS MATTER, WITH CERTAIN EXCEPTIONS NOT HERE PERTINENT, COVER "ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED; " AND EXCEPT FOR THE EXCLUSION IN THE REGULATIONS ABOVE MENTIONED, THE REGULATIONS ALSO APPEAR TO COVER NAVY EMPLOYEES UNDER PERSONAL SERVICE CONTRACTS, TOGETHER WITH OTHER GOVERNMENT EMPLOYEES. THE FACT THAT THE DEFINITIONS IN THE LEAVE REGULATIONS ARE SEPARATE FROM, AND NOT COEXTENSIVE WITH, THE DEFINITIONS ESTABLISHED IN THE CIVIL SERVICE LAWS AND REGULATIONS, IS A FURTHER INDICATION THAT EMPLOYEES OF THE NAVY DEPARTMENT UNDER CONTRACT ARE COVERED BY THE APPLICABLE LEAVE REGULATIONS. 18 COMP. GEN. 596 (1938); 19 COMP. GEN. 520 (1939); CF. ALSO 22 COMP. GEN. 256 (1942, AS TO MEMBERS OF THE ARMY SPECIALIST CORPS).

BECAUSE OF THE DOUBTS WHICH HAVE ARISEN UPON THE MATTER, HOWEVER, I SHALL MUCH APPRECIATE YOUR ADVICE UPON THE APPLICATION OF THE LEAVE STATUTES AND REGULATIONS TO THE NAVY EMPLOYEES UNDER PERSONAL SERVICE CONTRACTS ON THE SEVERAL BASES HEREIN OUTLINED.

NAVY EMPLOYEES UNDER CONTRACT CONTEMPLATING FULL TIME EMPLOYMENT (8 HOURS PER DAY, 6 DAYS PER WEEK) FOR DEFINITE PERIODS OF FROM 6 MONTHS TO ONE YEAR WOULD APPEAR TO BE "PERMANENT EMPLOYEES" WITHIN THE DEFINITION OF THE REGULATIONS ( SECTION 1 (B) OF EXECUTIVE ORDER 8384, SECTION 1 (B) OF EXECUTIVE ORDER 8385). THAT NAVY EMPLOYEES UNDER CONTRACT PROVIDING FOR OVER 6 MONTHS' FULL-TIME SERVICE ARE ENTITLED TO ANNUAL LEAVE AND SICK LEAVE SEEMS TO BE SPECIFICALLY RECOGNIZED IN YOUR OPINION OF OCTOBER 5, 1943, TO MR. SIEWERDSEN OF THE WAR DEPARTMENT (B-37154) RELATIVE TO A WAR DEPARTMENT EMPLOYEE PAID ON A PER DIEM BASIS, APPARENTLY A CONTRACT EMPLOYEE.

NAVY EMPLOYEES UNDER CONTRACT CONTEMPLATING FULL-TIME EMPLOYMENT FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS WOULD APPEAR TO BE "TEMPORARY EMPLOYEES" WITHIN THE DEFINITION OF THE REGULATIONS ( SECTION 1 (C) OF EXECUTIVE ORDER 8384, SECTION 1 (C) OF EXECUTIVE ORDER 8385, AND ALSO UNDER YOUR OPINION OF OCTOBER 5, 1943, ABOVE MENTIONED).

EMPLOYEES UNDER CONTRACT FOR PART-TIME WORK (SEVERAL DAYS PER WEEK OR WITH NO EMPLOYMENT PER WEEK OR MONTH SPECIFIED) FOR A SPECIFIED PERIOD OR FOR AN INDEFINITE PERIOD WOULD APPEAR TO BE ,PART-TIME OR INTERMITTENT EMPLOYEES" TO WHOM THE REGULATIONS ARE NOT APPLICABLE, IF SUCH EMPLOYEES DO NOT ACTUALLY WORK FOR CONTINUOUS PERIOD OF AT LEAST ONE MONTH ( SECTION 19 (F) (2) OF EXECUTIVE ORDER 8384, SECTION 23 (G) (2) OF EXECUTIVE ORDER 8385). IN SOME CASES THESE EMPLOYEES MUST BE AVAILABLE FOR DUTY ONLY DURING THE TIME THEY ARE ACTUALLY AT WORK. NOTE 17 COMP. GEN. 1017 (1938). SOME OF THESE CONTRACT EMPLOYEES, HOWEVER, MIGHT BE REQUIRED TO BE AVAILABLE FOR DUTY AT ANY TIME DURING THE TERM OF THEIR CONTRACTS, AND UNDER SUCH CIRCUMSTANCES APPEAR TO BE ,INDEFINITE EMPLOYEES" UNDER THE REGULATIONS, IF THEY ACTUALLY WORK FOR PERIODS IN EXCESS OF ONE MONTH. COMP. GEN. 401 (1938); 18 COMP. GEN. 457 (1938); 22 COMP. GEN. 533, 537 (1942).

CONTRACT EMPLOYEES UNDER CONTRACTS SPECIFYING THAT THEY WORK WHENEVER REQUIRED BY THE NAVY DEPARTMENT WOULD APPEAR TO BE "PART-TIME OR INTERMITTENT EMPLOYEES" OR "INDEFINITE EMPLOYEES," DEPENDING ON THE CIRCUMSTANCES OF THEIR ACTUAL EMPLOYMENT. IF THEY ARE ACTUALLY CONTINUOUSLY EMPLOYED OR REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN ONE MONTH, THEY WOULD SEEM TO BE "INDEFINITE EMPLOYEES" UNDER THE REGULATIONS ( SECTION 1 (E) OF EXECUTIVE ORDER 8384, SECTION 1 (E) OF EXECUTIVE ORDER 8385). IF THEY ARE ACTUALLY EMPLOYED FOR PERIODS OF LESS THAN ONE MONTH, THEY ARE APPARENTLY PART TIME OR INTERMITTENT EMPLOYEES AND NOT COVERED BY THE STATUTES OR REGULATIONS.

WHEN EMPLOYEES ARE HIRED UNDER CONTRACT TO DO A SPECIFIC JOB, I AM NOT CLEAR AS TO THEIR STATUS WITH RESPECT TO ANNUAL LEAVE AND SICK LEAVE. IS POSSIBLE THAT SUCH EMPLOYEES ARE THE "PERSONS ENGAGED UNDER CONTRACT" EXCLUDED FROM APPLICATION OF THE REGULATIONS. ON THE OTHER HAND, THEY MIGHT BE REGARDED AS THOSE "APPOINTED FOR THE "DURATION OF THE JOB.' WITHIN THE CONTEMPLATION OF THE DEFINITION OF "INDEFINITE EMPLOYEES.' THIS LATTER CONSTRUCTION RATHER APPEARS, HOWEVER, TO RENDER MEANINGLESS THE EXCLUSION OF CONTRACT EMPLOYEES UNDER THE REGULATIONS.

IN CONSIDERING THE MATTERS DISCUSSED IN THIS LETTER, WILL YOU PLEASE GIVE THE NAVY DEPARTMENT YOUR OPINION AS TO:

(1) WHAT NAVY CONTRACT EMPLOYEES, IF ANY, ARE EXCLUDED FROM THE COVERAGE OF THE ANNUAL LEAVE AND SICK LEAVE STATUTES AND REGULATIONS AS PERSONS ENGAGED UNDER CONTRACT, UNDER SECTION 19 (F) (3) OF EXECUTIVE ORDER 8384 AND SECTION 23 (G) (3) OF EXECUTIVE ORDER 8385;

(2) WHETHER NAVY EMPLOYEES UNDER CONTRACTS CONTEMPLATING (A) FULL TIME EMPLOYMENT FOR DEFINITE PERIODS IN EXCESS OF 6 MONTHS OR (B) FULL TIME EMPLOYMENT FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS, ARE PERMANENT EMPLOYEES AND TEMPORARY EMPLOYEES, RESPECTIVELY, WITHIN THE DEFINITIONS CONTAINED IN THE ANNUAL LEAVE AND SICK LEAVE REGULATIONS;

(3) WHETHER NAVY EMPLOYEES UNDER CONTRACTS NOT SPECIFYING ANY DEFINITE PERIOD OF TIME OF EMPLOYMENT, BUT WHO ARE ACTUALLY CONTINUOUSLY EMPLOYED FOR A PERIOD OF NOT LESS THAN ONE MONTH, ARE INDEFINITE EMPLOYEES UNDER THE REGULATIONS;

(4) WHETHER NAVY EMPLOYEES UNDER CONTRACTS NOT SPECIFYING ANY DEFINITE PERIOD OF TIME OF EMPLOYMENT, BUT REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN ONE MONTH, AND YET NOT ACTUALLY CONTINUOUSLY EMPLOYED FOR A PERIOD OF ONE MONTH, ARE DEFINITE EMPLOYEES UNDER THE REGULATIONS;

(5) WHETHER NAVY EMPLOYEES UNDER CONTRACTS TO PERFORM A SPECIFIC JOB, WITH NO PERIOD OF PERFORMANCE STATED, ARE INDEFINITE EMPLOYEES UNDER THE REGULATIONS; AND

(6) WHAT RIGHTS, IF ANY, HAVE THOSE NAVY CONTRACT EMPLOYEES WHO HAVE NOT IN THE PAST RECEIVED ANNUAL LEAVE OR SICK LEAVE, BUT WHO SHOULD IN YOUR OPINION HAVE BEEN ENTITLED TO SUCH ANNUAL LEAVE OR SICK LEAVE UNDER THE REGULATIONS?

SECTION 114 OF THE ACT OF JUNE 26, 1943, 57 STAT. 216, PUBLIC LAW 92, CONTAINS THE FOLLOWING AUTHORITY TO WHICH YOU REFER:

THE APPROPRIATION FOR THE NAVAL ESTABLISHMENT FOR THE FISCAL YEAR 1944 SHALL BE AVAILABLE FOR * * * PAYMENT OF EMPLOYMENT AT THE SEAT OF GOVERNMENT OR ELSEWHERE FOR A PERIOD NOT TO EXCEED THE DURATION OF THE WAR OF SUCH SPECIALISTS AS MAY BE CONTRACTED FOR BY THE SECRETARY, AT A RATE OF PAY NOT EXCEEDING $25 PER DIEM FOR ANY PERSON SO EMPLOYED * * *.

THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, ARE APPLICABLE TO "ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED" WITH CERTAIN EXPRESS EXCEPTIONS BUT WHICH EXCEPTIONS DO NOT EMBRACE CONTRACT OFFICERS OR EMPLOYEES OF THE UNITED STATES.

SECTIONS 1 OF THE ANNUAL AND SICK LEAVE REGULATIONS, E.O. NOS. 8384 AND 8385, MARCH 29, 1940, PROMULGATED BY THE PRESIDENT UNDER AUTHORITY OF SECTIONS 7 OF BOTH THE ANNUAL AND SICK LEAVE LAWS DEFINE THE DIFFERENT CLASSES OF EMPLOYEES WHO ARE ENTITLED TO LEAVE WHILE SECTION 19 OF THE ANNUAL LEAVE REGULATIONS AND SECTION 23 OF THE SICK LEAVE REGULATIONS SET FORTH THE CLASSES OF PERSONS AND EMPLOYEES WHO ARE EXCLUDED FROM LEAVE BENEFITS. THE REASONS UNDERLYING THE EXCLUSIONS APPEAR TO BE (1) BECAUSE THE TERM,"PERSONS" APPEARS TO HAVE BEEN USED ADVISEDLY AND PEOPLE COMPREHENDED THEREBY PROPERLY ARE NOT FOR REGARDING AS OFFICERS OR EMPLOYEES OF THE GOVERNMENT (2) BECAUSE THE GRANTING OF LEAVE TO CERTAIN CLASSES OF EMPLOYEES WOULD BE INCONSISTENT WITH THE TENURE AND NATURE OF THEIR EMPLOYMENT, AND (3) BECAUSE THE LEAVE LAWS OTHERWISE EXPRESSLY EXCLUDE CERTAIN CLASSES OF EMPLOYEES. THE PARTICULAR EXEMPTIONS FROM LEAVE BENEFITS FOR CONSIDERATION HERE ARE FOUND IN SUBDIVISIONS (2) AND (3) OF SECTION 19 (F) OF THE ANNUAL LEAVE REGULATIONS AND OF SECTION 23 (G) OF THE SICK LEAVE REGULATIONS READING " (2) PART-TIME OR INTERMITTENT EMPLOYEES; (3) PERSONS ENGAGED UNDER CONTRACT.'

THE CONCLUSIONS STATED IN THE THIRD, FIFTH, SIXTH, SEVENTH, AND EIGHTH PARAGRAPHS OF YOUR LETTER ARE SUBSTANTIALLY CORRECT. THAT IS TO SAY, THE EXEMPTION FROM LEAVE BENEFITS OF "PERSONS ENGAGED UNDER CONTRACT" CANNOT AND DOES NOT RELATE TO CIVILIAN EMPLOYEES OF THE GOVERNMENT WHO ARE ENTITLED TO LEAVE BY OPERATION OF THE PLAIN PROVISIONS OF THE LEAVE LAW IF THEY FALL WITHIN THE CLASSES OF EMPLOYEES DEFINED IN SECTIONS 1 OF THE ANNUAL AND SICK LEAVE REGULATIONS. CLEARLY, THE STATUTORY AUTHORITY CONTAINED IN SECTION 114 OF THE ACT OF JUNE 26, 1943, ABOVE QUOTED, IS FOR PAYMENT TO OFFICERS AND EMPLOYEES OF THE UNITED STATES UNDER AN INSTRUMENT DESIGNATED AS A CONTRACT AT A PER DIEM RATE OF COMPENSATION LIMITED TO $25, WHICH AUTHORITY SERVES ONLY AS AN EXEMPTION FROM THE CIVIL SERVICE LAWS AND REGULATIONS AND FROM THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, 42 STAT. 1488, AS AMENDED, BUT WHICH DOES NOT NECESSARILY HAVE THE EFFECT OF CHANGING THE STATUS OF SUCH PERSONS FROM EMPLOYEES TO CONTRACTORS, BUT, ON THE CONTRARY, THEY ARE OFFICERS OR EMPLOYEES OF THE UNITED STATES FOR OTHER PURPOSES, INCLUDING THE GRANTING OF LEAVE. PERSONS AUTHORIZED TO BE AND WHO ARE EMPLOYED UNDER AN INSTRUMENT DESIGNATED AS A "CONTRACT" AND WHO PERFORM THEIR WORK UNDER THE SUPERVISION AND CONTROL OF GOVERNMENT OFFICERS AND EMPLOYEES, EXCEPT SUCH AS ARE INCONSISTENT WITH THE PLAIN PROVISIONS OF THE LAW GRANTING SUCH AUTHORITY. THE EXEMPTION FROM LEAVE BENEFITS OF THE "PERSONS ENGAGED UNDER CONTRACT" BY ITS VERY TERMS IS CLEARLY SHOWN TO REFER TO CONTRACTORS ENGAGED--- NOT EMPLOYED--- ON OTHER THAN A PERSONAL SERVICE BASIS (GENERALLY THOSE WHO DO NOT PERFORM THEIR WORK UNDER THE SUPERVISION AND CONTROL OF THE GOVERNMENT). COMPARE THE DECISION OF NOVEMBER 30, 1943, B- 38185, 23 COMP. GEN. 398, TO YOU, HOLDING THAT CONTRACT EMPLOYEES OF THE NAVY DEPARTMENT ARE OFFICERS AND EMPLOYEES OF THE UNITED STATES WITHIN THE PURVIEW OF THE WAR OVERTIME PAY ACT OF 1943. ALSO, YOU HAVE REFERRED TO THE DECISION OF OCTOBER 5, 1943, B 37154, 23 COMP. GEN. 260, TO MR. HAROLD H. SIEWERDSEN, AUTHORIZED CERTIFYING OFFICER, OFFICE, SECRETARY OF WAR, WHEREIN WAS AUTHORIZED TO BE CERTIFIED FOR PAYMENT A CLAIM FOR COMPENSATION DURING ANNUAL LEAVE SUBMITTED BY AN EXPERT CONSULTANT EMPLOYED AT THE RATE OF $25 PER DIEM UNDER SECTION 8 OF THE MILITARY APPROPRIATION ACT OF 1943, 56 STAT. 631, 632, IN TERMS SIMILAR TO THE APPROPRIATION PROVISION HERE UNDER CONSIDERATION.

THE DISCUSSION IN THE NINTH PARAGRAPH OF YOUR LETTER IS NOT ENTIRELY CLEAR. WITH REFERENCE THERETO, HOWEVER, IT MAY BE STATED THAT IF THE PERSONS THERE DISCUSSED ARE "EMPLOYEES" (AS DISTINGUISHED FROM PERSONS HEREINBEFORE DISCUSSED) AND WORK UNDER SUPERVISION AND CONTROL OF GOVERNMENT OFFICERS, THEY ARE ENTITLED TO LEAVE BENEFITS UNLESS THEY ARE PART-TIME OR INTERMITTENT EMPLOYEES OR ARE OTHERWISE EXEMPTED FROM THE LEAVE LAWS OR REGULATIONS. THE REGULATIONS DO NOT EXCLUDE CONTRACT "EMPLOYEES" FROM THE BENEFITS OF LEAVE; RATHER, THEY EXCLUDE "PERSONS ENGAGED UNDER CONTRACT.' NOTE THAT MOST OF THE OTHER EXEMPTIONS TO THE LEAVE REGULATIONS RELATE TO DIFFERENT CLASSES OF "EMPLOYEES (NOT PERSONS) TO WHOM THE GRANTING OF LEAVE WOULD BE INCONSISTENT WITH THE TENURE OR NATURE OF THEIR EMPLOYMENT OR WHO ARE EXCLUDED BY THE STATUTES. WHEN THE EXEMPTION USES THE WORD "PERSONS," RATHER THAN THE WORD "EMPLOYEES," THERE CLEARLY IS SUGGESTED THE INFERENCE THAT THE TERM "PERSONS" WAS NOT INTENDED TO EMBRACE OR COMPREHEND OFFICERS AND EMPLOYEES OF THE GOVERNMENT, AS THE LATTER CLASS IS UNDERSTOOD GENERALLY. SEE, FOR INSTANCE, THE EXEMPTION OF SECURITY WAGE WORKERS APPEARING IN SUBDIVISION (E) OF SECTION 19 OF THE ANNUAL LEAVE REGULATIONS AND THE CORRESPONDING EXEMPTION IN SUBDIVISION (F) OF SECTION 23 OF THE SICK LEAVE REGULATIONS. ACCORDINGLY, REFERRING TO QUESTION (1), IT IS HELD THAT NONE OF THE NAVY CONTRACT EMPLOYEES (AS DISTINGUISHED FROM PERSONS ENGAGED UNDER A NON- PERSONAL SERVICE CONTRACT) IS EXCLUDED FROM THE LEAVE BENEFITS SOLELY BY REASON OF THE REFERRED-TO REGULATION.

QUESTIONS 2, 3, 4, AND 5 ARE ANSWERED IN THE AFFIRMATIVE, WITH THE QUALIFICATION THAT AS TO QUESTION (4) NO LEAVE WOULD BE ALLOWABLE UNLESS THERE WERE ACTUAL CONTINUOUS EMPLOYMENT FOR A MINIMUM PERIOD OF ONE MONTH.

REFERRING TO QUESTION (6), THE NAVY CONTRACT EMPLOYEES ARE ENTITLED TO LEAVE BENEFITS FROM AND AFTER THE EFFECTIVE DATE OF THEIR EMPLOYMENT. COURSE, THE GENERAL RULE APPLIES THAT NO PAYMENTS MAY BE MADE AFTER FINAL SEPARATION FROM THE SERVICE FOR LEAVE ACCRUED PRIOR THERETO. 16 COMP. GEN. 899; 17 ID. 48. ALSO, AS TO EMPLOYEES WHO HAVE TRANSFERRED TO OTHER AGENCIES WITHOUT BREAK IN SERVICE THERE WOULD BE INVOLVED THE QUESTION OF TRANSFER OF LEAVE CREDITS PURSUANT TO SECTION 6 OF THE ANNUAL LEAVE REGULATIONS AND SECTION 9 OF THE SICK LEAVE REGULATIONS ..END :