B-65259, JUNE 17, 1947, 26 COMP. GEN. 927

B-65259: Jun 17, 1947

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HOLIDAYS - COMPENSATION - "WHEN ACTUALLY EMPLOYED" EMPLOYEES "WHEN ACTUALLY EMPLOYED" EMPLOYEES WHO ARE PAID ON AN HOURLY OR PER DIEM BASIS IN EITHER CLASSIFIED OR UNCLASSIFIED POSITIONS AND CONTINUOUSLY EMPLOYED OR REQUIRED TO BE AVAILABLE FOR DUTY FOR PERIODS OF NOT LESS THAN ONE MONTH. ARE TO BE REGARDED AS "REGULAR EMPLOYEES" ENTITLED TO COMPENSATION PURSUANT TO THE PER DIEM. AS FOLLOWS: EMPLOYEES ARE CLASSIFIED UNDER ONLY TWO GENERAL HEADINGS FOR LEAVE PURPOSES. THAT IS. CERTAIN QUESTIONS HAVE ARISEN AS TO THE CONDITIONS UNDER WHICH W.A.E. EMPLOYEES ARE GIVEN DIFFERENT TYPES OF APPOINTMENTS DEPENDING ON THE TYPE OF WORK FOR WHICH THEY ARE EMPLOYED. SOME ARE GIVEN INDEFINITE APPOINTMENTS AND ARE REQUIRED TO WORK CONTINUOUSLY.

B-65259, JUNE 17, 1947, 26 COMP. GEN. 927

HOLIDAYS - COMPENSATION - "WHEN ACTUALLY EMPLOYED" EMPLOYEES "WHEN ACTUALLY EMPLOYED" EMPLOYEES WHO ARE PAID ON AN HOURLY OR PER DIEM BASIS IN EITHER CLASSIFIED OR UNCLASSIFIED POSITIONS AND CONTINUOUSLY EMPLOYED OR REQUIRED TO BE AVAILABLE FOR DUTY FOR PERIODS OF NOT LESS THAN ONE MONTH, BEING "PERMANENT" EMPLOYEES WITHIN THE MEANING OF SECTION 1.1 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS, ARE TO 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 AGRICULTURE, JUNE 17, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 7, 1947, AS FOLLOWS:

EMPLOYEES ARE CLASSIFIED UNDER ONLY TWO GENERAL HEADINGS FOR LEAVE PURPOSES, THAT IS, AS PERMANENT EMPLOYEES OR AS TEMPORARY EMPLOYEES, IN THE NEW " REGULATIONS RELATING TO ANNUAL AND SICK LEAVE OF GOVERNMENT EMPLOYEES," PROMULGATED BY THE CIVIL SERVICE COMMISSION, EFFECTIVE JULY 1, 1946. IN VIEW OF THESE NEW REGULATIONS, CERTAIN QUESTIONS HAVE ARISEN AS TO THE CONDITIONS UNDER WHICH W.A.E. EMPLOYEES PAID ON A PER DIEM BASIS IN EITHER CLASSIFIED OR UNCLASSIFIED POSITIONS MAY RECEIVE PAY FOR UNWORKED HOLIDAYS.

THESE W.A.E. EMPLOYEES ARE GIVEN DIFFERENT TYPES OF APPOINTMENTS DEPENDING ON THE TYPE OF WORK FOR WHICH THEY ARE EMPLOYED. SOME ARE GIVEN INDEFINITE APPOINTMENTS AND ARE REQUIRED TO WORK CONTINUOUSLY. SOME ARE GIVEN INDEFINITE APPOINTMENTS AND ARE REQUIRED TO BE AVAILABLE FOR DUTY AT ALL TIMES BUT WORK ONLY WHEN CALLED, WHICH MAY BE CONTINUOUSLY OR INTERMITTENTLY. SOME ARE APPOINTED AS INTERMITTENT EMPLOYEES AND MAY WORK A FEW DAYS EACH MONTH OR CONTINUOUSLY FOR MORE THAN 30 DAYS AT A TIME. ALL ARE PAID ON AN HOURLY OR A PER DIEM BASIS. THE PER HOUR OR PER DIEM RATES ARE DETERMINED FROM PER ANNUM RATES FOR ADMINISTRATIVE CONVENIENCE IF THE EMPLOYEES ARE IN CLASSIFIED POSITIONS. THEY MAY BE DETERMINED FROM LOCAL PREVAILING WAGE RATES WHEN THE EMPLOYEES ARE IN UNCLASSIFIED POSITIONS.

THE DEPARTMENT HAS UNDERSTOOD, FROM YOUR DECISION B-5294, DATED SEPTEMBER 9, 1939 (19 COMP. GEN. 337), THAT THE 1938 HOLIDAY PAY STATUTE IS NOT APPLICABLE TO W.A.E. EMPLOYEES WHO HOLD CLASSIFIED POSITIONS. IT HAS BEEN OUR PRACTICE TO PAY SUCH EMPLOYEES, WHEN THEY OCCUPY CLASSIFIED POSITIONS, AT STRAIGHT TIME RATES FOR ANY HOLIDAY ON WHICH NO WORK IS PERFORMED, PROVIDED THEY ARE CONTINUOUSLY EMPLOYED AND ARE ENTITLED TO LEAVE OF ABSENCE WITH PAY UNDER THE TERMS AND CONDITIONS OF THE LEAVE REGULATIONS, AND PROVIDED FURTHER THAT THE HOLIDAY DOES NOT OCCUR WITHIN A PERIOD OF NON-WORK. WE PAY OUR PER DIEM W.A.E. EMPLOYEES WHO OCCUPY UNCLASSIFIED POSITIONS AT STRAIGHT TIME RATES FOR HOLIDAYS WHICH PREVENT THEM FROM WORKING, PROVIDED THEY HAVE WORKED AT LEAST ONE YEAR PRIOR TO THE HOLIDAY AND HAVE BEEN CONTINUOUSLY EMPLOYED, PURSUANT TO THE 1938 HOLIDAY PAY STATUTE (20 COMP. GEN. 411 AND, MORE RECENTLY, 25 COMP. GEN. 407, 25 ID. 715, 25 ID. 794 AND 25 ID. 825). WE HAVE, OF COURSE, NEVER CONSIDERED W.A.E. EMPLOYEES HIRED TO WORK INTERMITTENTLY AS ENTITLED TO COMPENSATION FOR AN UNWORKED HOLIDAY EVEN IF IN CLASSIFIED POSITIONS OR CONTINUOUSLY EMPLOYED FULL TIME DURING THE 30 DAYS PRIOR TO THE HOLIDAY.

UNDER THE NEW LEAVE REGULATIONS, W.A.E. EMPLOYEES WHO ARE CONTINUOUSLY EMPLOYED OR REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN ONE MONTH ARE REGARDED AS PERMANENT EMPLOYEES FOR LEAVE PURPOSES (PAGE Z1-451 OF THE FEDERAL PERSONNEL MANUAL.) THEREFORE, WE WOULD ASSUME THAT IT WILL NOW BE CONSIDERED THAT THESE EMPLOYEES ARE "REGULAR" EMPLOYEES FOR HOLIDAY PAY PURPOSES. FURTHERMORE, SINCE LEAVE MAY BE CREDITED TO PERMANENT EMPLOYEES AT THE BEGINNING OF THE MONTH, WE WOULD ASSUME, WHERE IT IS ANTICIPATED THAT A W.A.E. EMPLOYEE ACTUALLY WILL SERVE OR BE REQUIRED TO BE AVAILABLE FOR DUTY FOR A CONTINUOUS MONTH, THAT HE IS ENTITLED TO PAYMENT FOR A HOLIDAY OCCURRING WITHIN THE MONTH EVEN THOUGH HE WILL NOT ACTUALLY HAVE WORKED CONTINUOUSLY FOR A MONTH BEFORE THE HOLIDAY. ARE THESE ASSUMPTIONS CORRECT?

YOUR DECISION B-62033, DATED DECEMBER 11, 1946, TO A CERTIFYING OFFICER OF THE FOREST SERVICE STATES WITH RESPECT TO THIS MATTER THAT IN ORDER TO ENTITLE A W.A.E. EMPLOYEE TO PAY FOR A HOLIDAY WHEN NOT WORKING, IT MUST APPEAR THAT HE WAS CONTINUOUSLY EMPLOYED IN THAT STATUS FOR ONE MONTH OR MORE. THE CASE UNDER DISCUSSION INVOLVED AN EMPLOYEE WHO WAS PERMANENT FOR LEAVE PURPOSES AND WHO HELD A CLASSIFIED POSITION UNDER AN APPOINTMENT CALLING FOR BOTH CONTINUOUS AND INTERMITTENT EMPLOYMENT AT DIFFERENT PERIODS. WE ARE NOT CERTAIN OF THE CORRECT APPLICATION TO MAKE THIS DECISION. DOES IT MEAN THAT WE ARE TO ASSUME, WITH RESPECT TO THE ENTIRE QUESTION UNDER DISCUSSION, THAT W.A.E. EMPLOYEES IN CLASSIFIED POSITIONS WHO ARE PERMANENT FOR LEAVE PURPOSES MUST BE CONTINUOUSLY EMPLOYED FOR A MONTH PRIOR TO EACH HOLIDAY, AND WILL THIS SAME PROVISION APPLY TO THE SAME TYPE OF EMPLOYEES IN UNCLASSIFIED POSITIONS; OR, AS WE HAVE ASSUMED IN THE IMMEDIATELY PRECEDING PARAGRAPH, MAY SUCH EMPLOYEES IN BOTH CLASSIFIED AND UNCLASSIFIED POSITIONS WHO ARE PERMANENT FOR LEAVE PURPOSES AND WHO WORK CONTINUOUSLY OR ARE AVAILABLE FOR DUTY CONTINUOUSLY, BE REGARDED AS ELIGIBLE TO BE PAID FOR UNWORKED HOLIDAYS REGARDLESS OF THE PERIOD OF THEIR ACTUAL SERVICE?

YOUR DECISION CLARIFYING THE ENTIRE QUESTION OF THE PAY TO WHICH W.A.E. EMPLOYEES ARE ENTITLED FOR HOLIDAYS WHEN NO WORK IS PERFORMED WILL BE GREATLY APPRECIATED.

THE HOLIDAY PAY STATUTE OF JUNE 29, 1938, 52 STAT. 1246, 1247, 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.

SEC. 2. THE JOINT RESOLUTION OF JANUARY 6, 1985 ( U.S.C., TITLE 5, SEC. 86), AND ALL OTHER LAWS INCONSISTENT OR IN CONFLICT WITH THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED TO THE EXTENT OF SUCH INCONSISTENCY OR CONFLICT.

AS STATED IN PRIOR DECISIONS OF THIS OFFICE, THE TERM,"REGULAR EMPLOYEES," AS USED IN THE HOLIDAY PAY STATUTE, QUOTED ABOVE, HAS NOT BEEN LEGISLATIVELY DEFINED, AND, IN THE ABSENCE OF AN AUTHORITATIVE DEFINITION OF THAT TERM, THE LEAVE REGULATIONS HAVE BEEN USED AS A GENERAL GUIDE TO THE EXTENT THAT WHERE AN EMPLOYEE QUALIFIES THEREUNDER AS A PERMANENT EMPLOYEE FOR LEAVE PURPOSES THE ELEMENT OF RELATIVE PERMANENCE OF HIS EMPLOYMENT IS SUPPLIED AND HE THEREAFTER PROPERLY MAY BE REGARDED AS A "REGULAR EMPLOYEE" WITHIN THE PROVISIONS OF THE 1938 HOLIDAY STATUTE.

THE ANNUAL LEAVE REGULATIONS, EFFECTIVE JULY 1, 1946, ELIMINATED A SEPARATE DEFINITION OF ,INDEFINITE EMPLOYEES"--- WHICH INCLUDED "W.A.E.' EMPLOYMENT--- BY INCORPORATING THE SAME INTO THE DEFINITION OF PERMANENT EMPLOYEES. THAT REGULATION, WHICH HAS BEEN RETAINED IN THE CURRENT ISSUE OF THE ANNUAL AND SICK LEAVE REGULATIONS (SEE 12 F.R. 2902), IS AS FOLLOWS:

(B) "PERMANENT EMPLOYEES" ARE THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE, OR FOR DEFINITE PERIODS IN EXCESS OF ONE YEAR, OR FOR THE "DURATION OF THE JOB," OR FOR THE DURATION OF THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER; 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 ONE MONTH, AS DISTINGUISHED FROM PART-TIME OR INTERMITTENT EMPLOYEES.

YOUR ASSUMPTIONS, CONTAINED IN THE FOURTH PARAGRAPH OF YOUR LETTER, AS TO THE MANNER IN WHICH THAT CHANGE IN THE LEAVE REGULATIONS AFFECTS THE ENTITLEMENT OF "W.A.E.' EMPLOYEES TO HOLIDAY PAY APPEAR SUBSTANTIALLY CORRECT. HOWEVER, IT IS TO BE UNDERSTOOD THAT "W.A.E.' EMPLOYEES SERVING UNDER TEMPORARY APPOINTMENTS FOR DEFINITE PERIODS OF LESS THAN ONE YEAR WOULD NOT, UNDER ANY CIRCUMSTANCES, BE ENTITLED TO HOLIDAY PAY UNDER THE 1938 STATUTE; ALSO, THOSE EMPLOYEES APPOINTED AS INTERMITTENT EMPLOYEES AND WHO ARE COMPENSATED UPON A "W.A.E.' BASIS LIKEWISE WOULD BE UNABLE TO QUALIFY FOR HOLIDAY PAY UNDER THE STATUTE, SUPRA, SINCE THEY ARE SPECIFICALLY EXCEPTED FROM THE PROVISIONS OF THE ANNUAL AND SICK LEAVE REGULATIONS.

THE DECISION OF DECEMBER 11, 1946, B-62033, REFERRED TO IN YOUR LETTER, INVOLVED AN EMPLOYEE WHO HELD A CLASSIFIED POSITION UNDER AN APPOINTMENT WHICH CONTEMPLATED CONTINUOUS OR WHEN ACTUALLY EMPLOYED SERVICES WITHOUT LIMITATION AS TO TIME. IT WAS NOT DEEMED MATERIAL IN THAT CASE WHETHER THE EMPLOYEE HELD A CLASSIFIED OR AN UNCLASSIFIED POSITION OR WHETHER HIS DAILY RATE OF COMPENSATION WAS DERIVED FROM AN ANNUAL SALARY OR OTHERWISE, IN VIEW OF THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, AS AMENDED, 60 STAT. 216, WHICH ELIMINATED ALL MAJOR DIFFERENCES THERETOFORE EXISTING BETWEEN THOSE TWO CLASSES OF EMPLOYEES.

MOREOVER, THE STATEMENT IN THAT DECISION TO THE EFFECT THAT PAYMENT FOR LABOR DAY WHEN NO SERVICES WERE RENDERED WOULD NOT BE AUTHORIZED UNLESS IT BE ESTABLISHED THAT THE EMPLOYEE WAS CONTINUOUSLY EMPLOYED FOR ONE MONTH OR MORE IS TO BE REGARDED AS HAVING BEEN USED IN THE SENSE CONTEMPLATED BY THE LEAVE REGULATIONS SO AS TO INCLUDE THE LANGUAGE "OR REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN ONE MONTH," IT APPEARS THERE WAS NO SHOWING IN THAT PARTICULAR CASE EITHER OF SERVICE OR "AVAILABILITY FOR DUTY" FOR A COMPLETE MONTH PRIOR TO THE HOLIDAY.

IT IS BELIEVED THAT THE FOREGOING ADEQUATELY COVERS THE QUESTIONS RAISED IN YOUR LETTER.