B-56600, JUNE 4, 1946, 25 COMP. GEN. 825

B-56600: Jun 4, 1946

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YOU HAVE RULED. AN UNSETTLED QUESTION IS WITH RESPECT TO PAY FOR AN EMPLOYEE SUBJECT TO THE 1934 ACT WHEN HE DOES NOT WORK ON A DAY DECLARED TO BE A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER. IT WAS RULED THAT AN EMPLOYEE PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS IS ENTITLED TO HOLIDAY COMPENSATION WHEN NO WORK IS PERFORMED ONLY IF HE WORKED AT LEAST ONE YEAR PRIOR TO THE HOLIDAY. YOUR DECISION APPEARS TO HAVE BEEN PREDICATED UPON THE ANNUAL SICK LEAVE REGULATIONS IN WHICH ARE DEFINED PERMANENT. IT IS UNDERSTOOD THAT THE DEFINITIONS IN THE LEAVE REGULATIONS OF THESE THREE CATEGORIES OF EMPLOYEES WERE INFLUENCED BY THE WAR-SERVICE REGULATIONS OF THE CIVIL SERVICE COMMISSION. A TEMPORARY EMPLOYEE WAS DESCRIBED AS ONE WHO WAS ON DUTY FOR A YEAR OR LESS.

B-56600, JUNE 4, 1946, 25 COMP. GEN. 825

HOLIDAY COMPENSATION - "JOB EMPLOYMENT" EMPLOYEES EMPLOYEES SERVING UNDER TEMPORARY APPOINTMENTS FOR "JOB EMPLOYMENT" PURSUANT TO SECTION 4 OF REGULATION VIII OF THE TEMPORARY CIVIL SERVICE REGULATIONS, FOR DEFINITE PERIODS OF TIME NOT EXCEEDING ONE YEAR "TEMPORARY EMPLOYEES" WITHIN THE MEANING OF SECTION 1.1 (C) OF THE ANNUAL AND SICK LEAVE REGULATIONS AND, THEREFORE, MAY NOT BE REGARDED AS "REGULAR" EMPLOYEES ENTITLED TO COMPENSATION PURSUANT TO THE PER DIEM, ETC., EMPLOYEE HOLIDAY PAY STATUTE OF JUNE 29, 1938, FOR HOLIDAYS ON WHICH THEY PERFORM NO WORK.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, JUNE 4, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 15, 1946, AS FOLLOWS:

IN YOUR DECISION OF FEBRUARY 7 (B-53383) TO THE SECRETARY OF WAR, YOU HAVE RULED, IN EFFECT, THAT EMPLOYEES SUBJECT TO THE ACT OF MARCH 28, 1934, MAY, UNDER ADMINISTRATIVE REGULATIONS, RECEIVE PREMIUM PAY FOR WORK ADMINISTRATIVELY REQUIRED ON DAYS DECLARED TO BE HOLIDAYS BY FEDERAL STATUTE OR EXECUTIVE ORDER REGARDLESS OF THE FACT THAT SUCH DAYS FALL WITHIN AN EMPLOYEE'S REGULAR TOUR OF DUTY. AN UNSETTLED QUESTION IS WITH RESPECT TO PAY FOR AN EMPLOYEE SUBJECT TO THE 1934 ACT WHEN HE DOES NOT WORK ON A DAY DECLARED TO BE A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER.

IN 25 C.G. 407 DATED NOVEMBER 15, 1945, IT WAS RULED THAT AN EMPLOYEE PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS IS ENTITLED TO HOLIDAY COMPENSATION WHEN NO WORK IS PERFORMED ONLY IF HE WORKED AT LEAST ONE YEAR PRIOR TO THE HOLIDAY. YOUR DECISION APPEARS TO HAVE BEEN PREDICATED UPON THE ANNUAL SICK LEAVE REGULATIONS IN WHICH ARE DEFINED PERMANENT, TEMPORARY, AND INDEFINITE EMPLOYEES. IT IS UNDERSTOOD THAT THE DEFINITIONS IN THE LEAVE REGULATIONS OF THESE THREE CATEGORIES OF EMPLOYEES WERE INFLUENCED BY THE WAR-SERVICE REGULATIONS OF THE CIVIL SERVICE COMMISSION. IN THESE WAR-SERVICE REGULATIONS, A TEMPORARY EMPLOYEE WAS DESCRIBED AS ONE WHO WAS ON DUTY FOR A YEAR OR LESS. THE TEMPORARY CIVIL SERVICE REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION PURSUANT TO EXECUTIVE ORDER NO. 9691 DATED FEBRUARY 4, 1946, AND WHICH SUPERSEDED THE WAR-SERVICE REGULATIONS, PLACE A LIMIT OF SIX MONTHS ON JOB OR TEMPORARY EMPLOYMENT. THE QUESTION THEN ARISES WHETHER THIS LIMITATION AFFECTS YOUR PREVIOUS DECISION.

WE WOULD APPRECIATE A RULING FROM YOU AS TO WHAT PERIOD OF SERVICE, IF ANY, BEFORE A HOLIDAY IS NOT NECESSARY TO ENTITLE AN EMPLOYEE TO PAY FOR SUCH HOLIDAY ON WHICH HE DOES NOT WORK.

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.

THE QUOTED STATUTE AUTHORIZES PAY TO "REGULAR" EMPLOYEES OF THE FEDERAL GOVERNMENT COMING WITHIN THE PURVIEW THEREOF WHO ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY. IT IS SETTLED THAT THE DETERMINATION WHETHER A PARTICULAR EMPLOYEE IS "REGULAR" EMPLOYEE WITHIN THE MEANING OF THAT TERM AS USED IN THE STATUTE, SUPRA, IS NOT DEPENDENT UPON THE CLASSIFICATION OF HIS APPOINTMENT UNDER THE CIVIL SERVICE RULES AND REGULATIONS, BUT RATHER, AS A GENERAL GUIDE, SUCH DETERMINATION IS BASED UPON THE EMPLOYEE'S CLASSIFICATION FOR LEAVE PURPOSES. 19 COMP. GEN. 426; 20 ID. 411; 25 ID. 407. AND BY REASON OF SUCH RECOURSE TO THE EMPLOYEE'S CLASSIFICATION FOR LEAVE PURPOSES THE FOLLOWING PRINCIPLES HAVE BEEN RECOGNIZED, GENERALLY, AS CONTROLLING UPON THE RIGHTS, UNDER THE 1938 STATUTE, OF EMPLOYEES WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE-WORK BASIS, NAMELY; (1) IF SUCH EMPLOYEE IS A PERMANENT EMPLOYEE FOR LEAVE PURPOSES, HE IS ENTITLED TO THE BENEFITS OF THE 1938 STATUTE, REGARDLESS OF THE PERIOD OF SERVICE; (2) IF TEMPORARY FOR LEAVE PURPOSES, AN EMPLOYEE IS NOT ENTITLED TO THE BENEFITS OF THE HOLIDAY PAY STATUTE; AND (3), IF AN EMPLOYEE FALLS WITHIN THE DEFINITION OF AN "INDEFINITE EMPLOYEE" CONTAINED IN THE LEAVE REGULATIONS, HE IS ENTITLED TO PAY ON A HOLIDAY ON WHICH NO WORK IS PERFORMED ONLY AFTER HAVING SERVED CONTINUOUSLY FOR A PERIOD EQUAL TO THAT PRESCRIBED FOR TEMPORARY EMPLOYEES UNDER THE LEAVE REGULATIONS.

SECTION 1.1 OF THE CURRENT ANNUAL AND SICK LEAVE REGULATIONS FOR GOVERNMENT EMPLOYEES, AS REVISED JANUARY 1, 1945, PROVIDES:

SECTION 1.1 AS USED IN THESE REGULATIONS:

(A) "EMPLOYEE" AND "EMPLOYEES" INCLUDE OFFICER AND OFFICERS, RESPECTIVELY.

(B) "PERMANENT EMPLOYEES" ARE THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE OR FOR DEFINITE PERIODS IN EXCESS OF 1 YEAR, OR FOR THE DURATION OF THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER.

(C) "TEMPORARY EMPLOYEES" ARE THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 1 YEAR.

(D) "INDEFINITE EMPLOYEES" ARE THOSE APPOINTED FOR THE "DURATION OF THE JOB" AND THOSE WHO, ALTHOUGH PAID ONLY WHEN ACTUALLY EMPLOYED, ARE CONTINUOUSLY EMPLOYED OR REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN 1 MONTH, AS DISTINGUISHED FROM PART-TIME OR INTERMITTENT EMPLOYEES.

WITH RESPECT TO TEMPORARY APPOINTMENTS FOR "JOB EMPLOYMENT" REFERRED TO IN YOUR LETTER, SUPRA, SECTION 4 OF REGULATION VIII," TEMPORARY APPOINTMENT," OF THE CIVIL SERVICE COMMISSION, PROVIDES:

4. JOB EMPLOYMENT.--- WHEN THERE IS WORK OF A TEMPORARY CHARACTER, AT THE COMPLETION OF WHICH THE SERVICES OF AN ADDITIONAL EMPLOYEE WILL NOT BE REQUIRED, A TEMPORARY APPOINTMENT MAY BE MADE WITH THE PRIOR CONSENT OF THE COMMISSION FOR A PERIOD NOT TO EXCEED 6 MONTHS. SUCH TEMPORARY APPOINTMENT SHALL BE MADE THROUGH CERTIFICATION FROM THE COMMISSION'S ELIGIBLE REGISTERS UNLESS THE COMMISSION SHALL DECIDE, IN A PARTICULAR CASE, THAT THERE ARE NO AVAILABLE ELIGIBLES. SUCH TEMPORARY APPOINTMENT MAY BE EXTENDED ONLY IF THERE ARE NO ELIGIBLES AVAILABLE FOR THE ADDITIONAL PERIOD OR AFTER AN ADEQUATE SHOWING THAT SUCH EXTENSION IS NECESSARY TO COMPLETE THE JOB OF WORK FOR WHICH THE PERSON WAS ORIGINALLY EMPLOYED. THE COMMISSION MAY RESTRICT CERTIFICATION FOR TEMPORARY APPOINTMENT TO SUCH ELIGIBLES AS BY REASON OF RESIDENCE OR OTHER CONDITIONS ARE IMMEDIATELY AVAILABLE.

CLEARLY, UNDER THE PROVISIONS OF THE REGULATIONS JUST QUOTED, PERSONS HOLDING TEMPORARY APPOINTMENTS FOR "JOB EMPLOYMENT," ARE PERSONS "APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 1 YEAR" WITHIN THE MEANING OF THE DEFINITION OF "TEMPORARY EMPLOYEES" APPEARING IN THE CURRENT LEAVE REGULATIONS, AND, CONSEQUENTLY--- IN CONSONANCE WITH THE GENERAL RULES SET OUT ABOVE--- SUCH EMPLOYEES ARE NOT ENTITLED TO THE BENEFITS OF THE HOLIDAY PAY STATUTE OF 1938.