B-58164, JUNE 17, 1946, 25 COMP. GEN. 877

B-58164, JUNE 17, 1946, 25 COMP. GEN. 877

HOLIDAY COMPENSATION - TEMPORARY PER ANNUM EMPLOYEES A TEMPORARY EMPLOYEE WHOSE SALARY IS FIXED ON A PER DIEM BASIS IS ENTITLED TO THE EXTRA PAY PROVIDED BY SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR WORK PERFORMED ON A HOLIDAY. 25 COMP. GEN. 407, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO RALEIGH P. MCCLINTOCK, DEPARTMENT OF COMMERCE, JUNE 17, 1946:

BY LETTER DATED MAY 29, 1946, THE CIVIL AERONAUTICS ADMINISTRATION FORWARDED HERE FOR CONSIDERATION YOUR LETTER OF MAY 7, 1946, AS FOLLOWS:

THERE HAS BEEN PRESENTED TO ME FOR CERTIFICATION A PAYROLL VOUCHER IN THE AMOUNT OF $12.71 COVERING THE PAYMENT OF HOLIDAY COMPENSATION TO RUTH M. PAULING, AIRPORT TRAFFIC CONTROLLER, FOR WORK PERFORMED ON DECEMBER 25, 1945, JANUARY 1 AND FEBRUARY 22, 1946. MISS PAULING WAS EMPLOYED BY THIS AGENCY ON A TEMPORARY PER ANNUM BASIS.

THIS OFFICE HAS BEEN UNABLE TO LOCATE ANY EXISTING REGULATIONS OR DECISIONS INVOLVING THE PAYMENT OF HOLIDAY COMPENSATION TO TEMPORARY PER ANNUM EMPLOYEES, WHO ARE APPOINTED FOR A PERIOD OF ONE YEAR OR LESS. HOWEVER, UPON RECEIPT OF YOUR DECISION B-53211, DATED NOVEMBER 15, 1945, IT WAS INTERPRETED BY THIS OFFICE TO PRECLUDE PAYMENT OF SUCH COMPENSATION TO TEMPORARY PER ANNUM EMPLOYEES FOR HOLIDAYS NOT WORKED, AND TO ALLOW ONLY BASIC PAY FOR HOLIDAYS WORKED. WE, THEREFORE, DID NOT PAY TEMPORARY PER ANNUM EMPLOYEES FOR DECEMBER 25, 1945, JANUARY 1 AND FEBRUARY 22, 1946 UNLESS WORK WAS ACTUALLY PERFORMED, AND IF WORK WAS ACTUALLY PERFORMED BY SUCH EMPLOYEES, PAYMENT WAS MADE ONLY AT THE BASIC RATE OF COMPENSATION. THERE NOW APPEARS TO BE SOME DOUBT AS TO THE CORRECTNESS OF OUR INTERPRETATION OF YOUR DECISION NO. B-53211.

THE ATTACHED VOUCHER REPRESENTS THE DIFFERENCE BETWEEN THE AMOUNT PAID MISS PAULING, WHICH WAS THE BASIC RATE OF COMPENSATION FOR THE THREE HOLIDAYS AND THE AMOUNT SHE WOULD HAVE RECEIVED AT THE HOLIDAY RATE, LESS SIX HOURS NIGHT DIFFERENTIAL PAID TO HER FOR NIGHT WORK PERFORMED ON FEBRUARY 22, 1946. YOU DECISION IS RESPECTFULLY REQUESTED AS TO THE LEGALITY OF THE PROPOSED PAYMENT.

AN EARLY DECISION ON THIS VOUCHER WILL BE GREATLY APPRECIATED INASMUCH AS THIS OFFICE IS HOLDING NUMEROUS REQUESTS FOR PAYMENT OF HOLIDAY COMPENSATION BY EMPLOYEES OF THE CLASS HERE INVOLVED.

THE VOUCHER AND CHANGE SLIP NO. 1 ARE ATTACHED HERETO.

THE DECISION OF NOVEMBER 15, 1945, B-53211, 25 COMP. GEN. 407, TO WHICH YOU REFER, CONSTRUED PUBLIC RESOLUTION 127, APPROVED JUNE 29, 1938, 52 STAT. 1246, WHICH MAKES PROVISION FOR HOLIDAY PAY TO "REGULAR EMPLOYEES THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED ON A RATE PER DAY, PER HOUR OR ON A PIECEWORK BASIS; " HENCE, THAT DECISION HAS NO APPLICATION TO EMPLOYEES WHOSE COMPENSATION IS FIXED ON A PER ANNUM BASIS. 14 COMP. GEN. 818; 19 ID. 337.

SECTIONS 101 (A) AND 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, 298, PROVIDE:

SEC. 101. (A) SUBJECT TO THE EXEMPTIONS SPECIFIED IN SECTION 102 OF THIS ACT, TITLES II AND III OF THIS ACT SHALL APPLY (1) TO ALL CIVILIAN OFFICERS AND EMPLOYEES IN OR UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS, AND IN OR UNDER THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT, AND (2) TO THOSE OFFICERS AND EMPLOYEES OF THE JUDICIAL BRANCH OF THE GOVERNMENT, THE LIBRARY OF CONGRESS, THE BOTANIC GARDENS, AND THE OFFICE OF THE ARCHITECT OF THE CAPITOL WHO OCCUPY POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED.

TITLE III--- COMPENSATION FOR NIGHT AND HOLIDAY WORK.

SEC. 302. OFFICERS AND EMPLOYEES TO WHOM THIS TITLE APPLIES WHO ARE ASSIGNED TO DUTY ON A HOLIDAY DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER SHALL BE COMPENSATED FOR SUCH DUTY, EXCLUDING PERIODS WHEN THEY ARE IN LEAVE STATUS, IN LIEU OF THEIR REGULAR PAY FOR THAT DAY, AT THE RATE OF ONE AND ONE-HALF TIMES THE REGULAR BASIC RATE OF COMPENSATION: PROVIDED, THAT EXTRA HOLIDAY COMPENSATION PAID UNDER THIS SECTION SHALL NOT SERVE TO REDUCE THE AMOUNT OF OVERTIME COMPENSATION TO WHICH THE EMPLOYEE MAY BE ENTITLED UNDER THIS OR ANY OTHER ACT DURING THE ADMINISTRATIVE WORKWEEK IN WHICH THE HOLIDAY OCCURS, BUT SUCH EXTRA HOLIDAY COMPENSATION SHALL NOT BE CONSIDERED TO BE A PART OF THE BASIC COMPENSATION OF THE PURPOSE OF COMPUTING SUCH OVERTIME COMPENSATION. THIS SECTION SHALL TAKE EFFECT UPON THE CESSATION OF HOSTILITIES IN THE PRESENT WAR AS PROCLAIMED BY THE PRESIDENT, OR AT SUCH EARLIER TIME AS THE CONGRESS BY CONCURRENT RESOLUTION MAY PRESCRIBE. PRIOR TO SO BECOMING EFFECTIVE, IT SHALL BE EFFECTIVE WITH RESPECT TO ANY DESIGNATED HOLIDAY ONLY IF THE PRESIDENT HAS DECLARED THAT SUCH DAY SHALL NOT BE GENERALLY A WORKDAY IN THE FEDERAL SERVICE.

IN VIEW OF THE FOREGOING PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, A TEMPORARY EMPLOYEE WHOSE SALARY IS FIXED ON A PER ANNUM BASIS IS ENTITLED TO BE PAID ONE AND ONE-HALF TIMES HIS BASIC RATE OF COMPENSATION WHEN REQUIRED TO WORK ON A HOLIDAY. SEE DECISION OF MARCH 20, 1946, B- 55504, 25 COMP. GEN. 660; BUT COMPARE SECTION 11 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, PUBLIC LAW 390, APPROVED MAY 24, 1946, 60 STAT. 218. ACCORDINGLY, THE VOUCHER STATED IN FAVOR OF RUTH M. PAULING FOR THE DIFFERENCE BETWEEN THE BASIC SALARY PREVIOUSLY PAID TO HER FOR THE THREE HOLIDAYS IN QUESTION AND ONE AND ONE-HALF TIMES THAT BASIC SALARY MAY BE CERTIFIED FOR PAYMENT.