B-78232, SEPTEMBER 20, 1948, 28 COMP. GEN. 185

B-78232: Sep 20, 1948

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A "WHEN ACTUALLY EMPLOYED" EMPLOYEE IS ENTITLED UNDER SECTION 30.201 (B) OF THE ANNUAL LEAVE REGULATIONS. TO BE CREDITED WITH 4 HOURS' ANNUAL LEAVE FOR EACH FULL WEEK OF SERVICE FROM THE BEGINNING OF THE PERIOD OF CONTINUOUS SERVICE UNTIL THERE IS A BREAK IN SERVICE. AT WHICH TIME THE EMPLOYEE AGAIN IS REQUIRED TO COMPLETE ANOTHER MONTH OF CONTINUOUS SERVICE BEFORE EARNING OR BEING CREDITED WITH ANY ADDITIONAL LEAVE. SPECIAL AGENTS OF THE BUREAU OF THE CENSUS WHO ARE EMPLOYED ON A "WHEN ACTUALLY EMPLOYED" BASIS FOR CONTINUOUS PERIODS IN EXCESS OF 1 YEAR TO PERFORM STATISTICAL STUDIES FOR INDIVIDUALS AND PRIVATE CONCERNS AND COMPENSATED FROM TRUST FUNDS PURSUANT TO THE ACT OF MAY 27. ARE "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT" WITHIN THE MEANING OF THE ACT OF JUNE 29.

B-78232, SEPTEMBER 20, 1948, 28 COMP. GEN. 185

HOLIDAY PAY AND LEAVE CREDITING, ETC., OF "WHEN ACTUALLY EMPLOYED" EMPLOYEES THE CLOSING OF AN ADMINISTRATIVE OFFICE ON LOCAL HOLIDAYS WHEN FEDERAL WORK PROPERLY MAY NOT BE PERFORMED, OR BECAUSE OF WEATHER CONDITIONS, THEREBY PREVENTING AN EMPLOYEE APPOINTED ON A "WHEN ACTUALLY EMPLOYED" BASIS FROM PERFORMING SERVICES ON SUCH DAYS, DOES NOT BREAK THE CONTINUITY OF THE EMPLOYEE'S MONTH OF SERVICE WITHIN THE MEANING OF SECTIONS 30.201 (B) AND 30.301 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS SO AS TO PRECLUDE THE ACCRUAL OF LEAVE FOR SUCH MONTH OF SERVICE. A "WHEN ACTUALLY EMPLOYED" EMPLOYEE IS ENTITLED UNDER SECTION 30.201 (B) OF THE ANNUAL LEAVE REGULATIONS, UPON THE COMPLETION OF ANY CONTINUOUS MONTH OF SERVICE, TO BE CREDITED WITH 4 HOURS' ANNUAL LEAVE FOR EACH FULL WEEK OF SERVICE FROM THE BEGINNING OF THE PERIOD OF CONTINUOUS SERVICE UNTIL THERE IS A BREAK IN SERVICE, AT WHICH TIME THE EMPLOYEE AGAIN IS REQUIRED TO COMPLETE ANOTHER MONTH OF CONTINUOUS SERVICE BEFORE EARNING OR BEING CREDITED WITH ANY ADDITIONAL LEAVE. UNDER SECTION 30.201 (B) OF THE ANNUAL LEAVE REGULATIONS, ENTITLING "WHEN ACTUALLY EMPLOYED" EMPLOYEES TO EARN AND BE CREDITED WITH LEAVE ON THE SAME BASIS AS PERMANENT EMPLOYEES SO LONG AS THEIR SERVICE REMAINS CONTINUOUS, SUCH EMPLOYEES SHOULD NOT BE CREDITED WITH LEAVE FOR A FEW DAYS AT THE BEGINNING OR END OF A CONTINUOUS MONTH OF SERVICE WHICH DO NOT EQUAL HALF A PAY PERIOD, EVEN THOUGH SUCH DAYS WOULD COUNT TOWARD THE "MONTH OF SERVICE" FOR ACCRUAL PURPOSES. IN VIEW OF SECTION 604 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, PROVIDING FOR THE ESTABLISHMENT OF A 40-HOUR WORKWEEK WITHIN 6 OF ANY 7 CONSECUTIVE DAYS, THE "MONTH OF SERVICE" REQUIREMENT OF THE ANNUAL AND SICK LEAVE REGULATIONS DOES NOT REQUIRE THAT A "WHEN ACTUALLY EMPLOYED" EMPLOYEE PERFORM SERVICES FOR A SPECIFIED NUMBER OF HOURS EACH DAY IN ORDER TO EARN LEAVE, SO THAT A FAILURE TO PERFORM SERVICES FOR ALL OR A PORTION OF ONE OF THE 6 OF ANY 7 CONSECUTIVE DAYS DOES NOT BREAK THE CONTINUITY OF SERVICE SO LONG AS THE EMPLOYEE CONFORMS TO HIS ESTABLISHED WORKWEEK OF 40 HOURS. COMPARE 18 COMP. GEN. 400. SPECIAL AGENTS OF THE BUREAU OF THE CENSUS WHO ARE EMPLOYED ON A "WHEN ACTUALLY EMPLOYED" BASIS FOR CONTINUOUS PERIODS IN EXCESS OF 1 YEAR TO PERFORM STATISTICAL STUDIES FOR INDIVIDUALS AND PRIVATE CONCERNS AND COMPENSATED FROM TRUST FUNDS PURSUANT TO THE ACT OF MAY 27, 1935, ARE "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT" WITHIN THE MEANING OF THE ACT OF JUNE 29, 1938, SO AS TO BE ENTITLED TO PAY FOR HOLIDAYS ON WHICH NO SERVICES ARE RENDERED, PROVIDED IT BE ASCERTAINED THAT THE PERIOD OF CONTINUOUS SERVICE WHICH INCLUDES A HOLIDAY WILL EXTEND FOR THE REQUIRED PERIOD OF 1 MONTH. COMPARE 26 COMP. GEN. 927.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, SEPTEMBER 20, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 7, 1948, SUBMITTING FOR ADVANCE DECISION VARIOUS QUESTIONS INVOLVING THE ACCRUAL AND CREDIT OF ANNUAL AND SICK LEAVE TO EMPLOYEES OF THE BUREAU OF THE CENSUS APPOINTED UPON A WHEN ACTUALLY EMPLOYED BASIS FOR PERIODS IN EXCESS OF 1 YEAR. ALSO, YOU SUBMIT A FURTHER QUESTION CONCERNING HOLIDAY PAY FOR SUCH EMPLOYEES WHO PERFORM SERVICES UNDER CIRCUMSTANCES AS WILL BE RELATED WHEN THAT QUESTION IS CONSIDERED.

YOUR FIRST QUESTION CONCERNS THE CONTINUITY OF SERVICE OF "W.A.E.' APPOINTEES WHO ARE SUBJECT TO THE LEAVE REGULATIONS APPLICABLE TO PERMANENT EMPLOYEES, I. E., WHETHER SUCH EMPLOYEES WOULD BE PREVENTED FROM EARNING LEAVE DURING THEIR FIRST MONTH OF SERVICE WHEN THE OFFICE HAS BEEN CLOSED BECAUSE OF THE OCCURRENCE OF A LOCAL HOLIDAY. A SUBQUESTION UNDER THIS SAME SUBJECT MATTER IS WHETHER AN ADMINISTRATIVE OFFICE HAS AUTHORITY TO DECLARE A HOLIDAY WHEN IT IS IMPOSSIBLE TO OPEN THE OFFICE BECAUSE OF WEATHER CONDITIONS.

SECTION 30.201 (B) OF THE CURRENT LEAVE REGULATIONS APPEARING IN FEDERAL PERSONNEL MANUAL PROVIDES AS FOLLOWS.

EFFECTIVE JULY 1, 1946, EMPLOYEES, OTHER THAN TEMPORARY EMPLOYEES, WHO ARE PAID ONLY WHEN ACTUALLY EMPLOYED, AND WHO SERVE ANY CONTINUOUS PERIOD OF NOT LESS THAN ONE MONTH, SHALL EARN AND BE CREDITED WITH LEAVE ON THE SAME BASIS AS OTHER PERMANENT EMPLOYEES, AT THE RATE OF ONE DAY PER BI- WEEKLY PAY PERIOD DURING THE ENTIRE PERIOD OF CONTINUOUS SERVICE. CREDITS FOR SUCH EMPLOYEES SHALL BE IN MULTIPLES OF 4 HOURS. SECTION 30.301 (B) OF THE LEAVE REGULATIONS CONTAINS A SIMILAR PROVISION WITH RESPECT TO SICK LEAVE, THE ONLY DIFFERENCE BEING THAT SICK LEAVE IS EARNED AND CREDITED AT THE RATE OF 1 1/4 DAYS DURING THE ENTIRE PERIOD OF CONTINUOUS SERVICE AND CREDIT MADE IN MULTIPLES OF 1 HOUR " MONTH OF SERVICE" IS DEFINED IN SAID LEAVE REGULATIONS AS "A PERIOD IN A PAY STATUS COVERING A FULL CALENDAR MONTH OR BEGINNING ON ANY DATE OF A CALENDAR MONTH AND ENDING AT THE CLOSE OF BUSINESS OF THE PRECEDING DATE IN THE NEXT CALENDAR MONTH.'

IN DECISION OF OCTOBER 31, 1947, 27 COMP. GEN. 264, IT WAS HELD AS FOLLOWS, QUOTING FROM THE SYLLABUS:

AN EMPLOYEE APPOINTED ON A "WHEN ACTUALLY EMPLOYED" BASIS FOR A DEFINITE PERIOD OF TIME WHO RENDERED SERVICE ON EVERY WORKDAY OF HIS FIRST MONTH OF SERVICE, BUT FAILED TO WORK AND RECEIVE COMPENSATION FOR THE LAST DAY OF HIS SERVICE MONTH BECAUSE IT WAS A HOLIDAY ON WHICH NO SERVICES WERE REQUIRED, NEED NOT BE REGARDED AS HAVING BROKEN THE CONTINUITY OF HIS MONTH OF SERVICE, A ,PERIOD IN A PAY STATUS" AS DEFINED BY CIVIL SERVICE REGULATIONS, SO AS TO PRECLUDE THE ACCRUAL OF ANNUAL LEAVE FOR SUCH MONTH OF SERVICE.

IT HAS BEEN RECOGNIZED THAT IT IS WITHIN ADMINISTRATIVE DISCRETION TO CLOSE AN OFFICE ON LOCAL HOLIDAYS WHEN FEDERAL WORK PROPERLY MAY NOT BE PERFORMED, OR BECAUSE OF WEATHER CONDITIONS. 13 COMP. GEN. 277; 15 ID. 911; ID. 1048; 17 ID. 298. UNDER SUCH CIRCUMSTANCES THE DAYS ON WHICH AN OFFICE IS CLOSED ARE TO BE REGARDED AS NONWORK DAYS. HENCE, IN CONFORMITY WITH THE HOLDING IN THE DECISION OF OCTOBER 31, 1947, SUPRA, IT REASONABLY MAY BE CONCLUDED THAT THE ACTION OF AN ADMINISTRATIVE OFFICE IN CLOSING AN OFFICE--- WHICH WOULD PREVENT A "W.A.E;, APPOINTEE FROM PERFORMING SERVICES ON THAT DAY--- DOES NOT BREAK THE EMPLOYEE'S CONTINUITY OF SERVICE WITHIN THE MEANING OF THE LEAVE REGULATIONS, PREVIOUSLY QUOTED.

YOUR SECOND GROUP OF QUESTIONS INVOLVES THE MANNER IN WHICH ANNUAL AND SICK LEAVE MAY BE CREDITED TO "W.A.E.' EMPLOYEES WHO ARE CONSIDERED PERMANENT FOR LEAVE PURPOSES, PARTICULARLY WHEN THE FIRST MONTH OF CONTINUOUS SERVICE BEGINS OR ENDS IN THE MIDDLE OF A PAY PERIOD.

IN THAT CONNECTION IT HAS BEEN INFORMALLY ASCERTAINED FROM THE CIVIL SERVICE COMMISSION THAT SECTION 30.201 (B) OF THE LEAVE REGULATIONS, SUPRA, WAS PROMULGATED IN ORDER THAT "W.A.E.' EMPLOYEES, AFTER COMPLETION OF ANY CONTINUOUS MONTH OF SERVICE, WOULD EARN AND BE CREDITED WITH ANNUAL LEAVE UPON THE SAME BASIS AS PERMANENT EMPLOYEES, AS LONG AS THEIR SERVICE REMAINED CONTINUOUS. IN OTHER WORDS, AN EMPLOYEE'S SERVICE NO LONGER IS TO BE DIVIDED INTO SUCCESSIVE MONTHS OF SERVICE FOR PURPOSES OF CREDITING HIM WITH ANNUAL LEAVE. RATHER, AFTER COMPLETION OF ANY MONTH OF CONTINUOUS SERVICE AN EMPLOYEE IS TO BE CREDITED WITH 4 HOURS' ANNUAL LEAVE EACH WEEK UNTIL THERE IS A BREAK IN SERVICE (ABSENCE IN A NONPAY STATUS) AT WHICH TIME THE EMPLOYEE AGAIN WOULD BE REQUIRED TO START A NEW MONTH OF CONTINUOUS SERVICE AND COMPLETE THE SAME BEFORE EARNING OR BEING CREDITED WITH ANY ADDITIONAL ANNUAL LEAVE. COMPARE 26 COMP. GEN. 824. ALSO, IN CREDITING LEAVE TO A "W.A.E.' EMPLOYEE, AFTER COMPLETION OF A PERIOD OF CONTINUOUS SERVICE OF NOT LESS THAN 1 MONTH, HE SHOULD NOT BE GIVEN ANY LEAVE CREDIT FOR A FEW DAYS AT THE BEGINNING OR END OF HIS CONTINUOUS SERVICE WHICH DOES NOT EQUAL HALF A PAY PERIOD--- AS IN THE CASE OF A PERMANENT EMPLOYEE--- ALTHOUGH SUCH DAYS WOULD COUNT TOWARD THE "MONTH OF SERVICE.'

APPLYING SECTION 30.201 (B) OF THE LEAVE REGULATIONS, IN THE LIGHT OF THE INTERPRETATION PLACED THEREON BY THE CIVIL SERVICE COMMISSION, TO THE EXAMPLES GIVEN IN YOUR LETTER, WHERE AN EMPLOYEE ENTERED ON DUTY ON JANUARY 19, 1948, THE BEGINNING OF THE SECOND WEEK OF A PAY PERIOD, IT IS EVIDENT THAT UPON THE EMPLOYEE'S COMPLETION OF A CONTINUOUS MONTH OF SERVICE ON FEBRUARY 18, 1948, HE SHOULD BE CREDITED WITH 4 HOURS OF ANNUAL LEAVE FOR THE FIRST WEEK, SINCE HIS SERVICE BEGAN ON A MONDAY, AND 4 HOURS FOR EACH WEEK OF CONTINUOUS SERVICE THEREAFTER. THE SAME POLICY MAY BE FOLLOWED WITH RESPECT TO THE CREDITING OF SICK LEAVE UNDER SECTION 30.301 (B) OF SAID LEAVE REGULATIONS. THE AMOUNT OF SICK LEAVE TO BE CREDITED WOULD DEPEND UPON THE METHOD AND TABLES USED BY YOUR DEPARTMENT IN REPORTING SICK LEAVE FOR FRACTIONAL PARTS OF A MONTH.

OF COURSE, THERE SHOULD NOT BE OVERLOOKED THE DISTINCTION BETWEEN THE EARNING OF LEAVE AND THE CREDITING OF LEAVE AS POINTED OUT IN 27 COMP. GEN. 369, WHICH IN THE EVENT OF AN EMPLOYEE'S SEPARATION FROM THE SERVICE, OR CONTINUOUS SERVICE TO THE END OF THE YEAR, MIGHT REQUIRE AN ADJUSTMENT SO AS TO REFLECT THE EXACT AMOUNT OF ANNUAL LEAVE EARNED OVER A PARTICULAR PERIOD REGARDLESS OF THE METHOD USED IN THE CREDITING THEREOF. THE SAME MIGHT ALSO BE REQUIRED WHEN A BREAK OCCURS IN AN EMPLOYEE'S CONTINUITY OF SERVICE AFTER HE HAS QUALIFIED TO EARN AND BE CREDITED WITH LEAVE AS A PERMANENT EMPLOYEE.

YOUR THIRD GROUP OF QUESTIONS HAS REFERENCE TO WHEN AN EMPLOYEE IS TO BE CONSIDERED AS HAVING COMPLETED A FULL MONTH OF CONTINUOUS SERVICE. VARIOUS EXAMPLES ARE GIVEN WHICH SHOW SERVICE PERFORMED FOR AT LEAST 40 HOURS PER WEEK ( MONDAY THROUGH SATURDAY) BUT NOT UPON THE BASIS OF 8 HOURS PER DAY FOR 5 DAYS EACH WEEK. IN OTHER WORDS, AN EMPLOYEE MAY WORK 2 HOURS ONE DAY AND MAKE UP TIME BY WORKING IN EXCESS OF 8 HOURS ON OTHER DAYS OR NOT WORKING AT ALL FOR AN ENTIRE DAY BUT IN LIEU THEREOF WORKING THE NECESSARY NUMBER OF HOURS ON SATURDAY TO COMPLETE THE 40-HOUR WEEK.

IN OFFICE DECISION OF DECEMBER 19, 1946, 26 COMP. GEN. 421, TO THE THEN SECRETARY OF COMMERCE, IT WAS HELD THAT "W.A.E.' APPOINTEES WHO WERE EMPLOYED UNDER CONDITIONS WHERE THEY DID NOT WORK CONTINUOUSLY AND HAD NOT ESTABLISHED WORKWEEK, EVEN THOUGH SOME OF THEM MIGHT PERFORM SERVICES TOTALING 40 HOURS ON A SPLIT-TIME ARRANGEMENT, WERE TO BE REGARDED AS "PART-TIME OR INTERMITTENT EMPLOYEES" WHO "ARE NOT REQUIRED TO BE CONTINUOUSLY EMPLOYED DURING A REGULAR TOUR OF DUTY," AND CONSEQUENTLY EXPRESSLY EXCLUDED BY THE LEAVE REGULATIONS FROM LEAVE BENEFITS UNDER THE 1936 LEAVE STATUTES.

THE CURRENT LEAVE REGULATIONS CONTAIN A PROVISION EXCLUDING PART TIME OR INTERMITTENT EMPLOYEES FROM LEAVE BENEFITS SIMILAR TO THAT REFERRED TO IN THE DECISION OF DECEMBER 19, 1946. HENCE, IT IS NOT UNDERSTOOD THAT THE EMPLOYEES HERE INVOLVED ARE OF THE CLASSES REFERRED TO THEREIN BUT ARE ACTUALLY REQUIRED TO WORK A MINIMUM OF 40 HOURS A WEEK WITHIN A PERIOD OF NOT MORE THAN 6 OF ANY 7 CONSECUTIVE DAYS (SEE SEC. 604 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 303), AND IF POSSIBLE TO CONFORM TO AN ESTABLISHED WORKWEEK OF 8 HOURS PER DAY, MONDAY THROUGH FRIDAY, IT BEING ANTICIPATED THAT THE HOURS OF WORK EACH DAY MIGHT VARY FROM DAY TO DAY. UPON THAT BASIS IT IS TO BE CONSIDERED THAT SUCH EMPLOYEES ARE NOT PART TIME OR INTERMITTENT EMPLOYEES, BUT ARE ENTITLED TO LEAVE BENEFITS IF THEY OTHERWISE QUALIFY FOR SAME UNDER THE LEAVE REGULATIONS.

IN DETERMINING WHEN AN EMPLOYEE, PAID ON A WHEN ACTUALLY EMPLOYED BASIS, HAS COMPLETED A CONTINUOUS PERIOD OF NOT LESS THAN A MONTH OF SERVICE SO AS TO QUALIFY HIM TO EARN AND TO BE CREDITED WITH LEAVE AS A PERMANENT EMPLOYEE UNDER THE LEAVE REGULATIONS, THERE ARE FOR CONSIDERATION THE DEFINITION OF "MONTH OF SERVICE" CONTAINED IN SAID LEAVE REGULATIONS AND THE STATEMENT APPEARING IN 18 COMP. GEN. 400 TO THE EFFECT THAT CONTINUOUS SERVICE OF ONE MONTH OR MORE MEANS AN ACTUAL PAY OR DUTY STATUS DURING THE ENTIRE DAILY TOUR OF DUTY OF EVERY WORK DAY OF THE MONTH.

THE DECISION IN 18 COMP. GEN. 400 WAS RENDERED PRIOR TO THE ENACTMENT OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, PROVIDING FOR THE ESTABLISHMENT OF A 40-HOUR WORKWEEK FOR GOVERNMENT EMPLOYEES GENERALLY, AND IS NOT TO BE CONSTRUED AS APPLICABLE AS LONG AS THE EMPLOYEE PERFORMS THE REQUIRED 40 HOURS OF SERVICE EACH WEEK ON ANY 6 OF 7 CONSECUTIVE DAYS, AS REQUIRED BY SAID PAY ACT OF 1945, PARTICULARLY, WHEN THE ACT DOES NOT OTHERWISE SPECIFY THE DAYS OF THE WEEK OR NUMBER OF HOURS EACH DAY DURING WHICH SUCH SERVICES ARE TO BE PERFORMED. FURTHERMORE, THE "MONTH OF SERVICE" DEFINED BY THE LEAVE REGULATIONS AS MEANING "A PERIOD IN A PAY STATUS COVERING A FULL CALENDAR MONTH" IS NOT TO BE REGARDED AS REQUIRING THAT A "W.A.E.' APPOINTEE BE IN A PAY STATUS FOR A SPECIFIED NUMBER OF HOURS EACH DAY IN ORDER TO EARN LEAVE. RATHER, IT IS SUFFICIENT COMPLIANCE WITH THE REGULATION IF THE EMPLOYEE BE IN A PAY STATUS ON A 40-HOUR WORKWEEK BASIS FOR THE SAME NUMBER OF HOURS DURING THE "MONTH OF SERVICE" AS NORMALLY WOULD BE REQUIRED OF A REGULAR EMPLOYEE WITH AN ESTABLISHED WORKWEEK OF 40 HOURS CONSISTING OF 8 HOURS A DAY, 5 DAYS A WEEK.

ACCORDINGLY, THE FAILURE OF A "W.A.E.' EMPLOYEE TO PERFORM SERVICES FOR ALL OR A PORTION OF ONE OF THE 6 OF ANY 7 CONSECUTIVE DAYS DOES NOT BREAK HIS CONTINUOUS SERVICE SO LONG AS HE MAKES UP THE TIME ON OTHER DAYS TO CONFORM TO HIS ESTABLISHED WORKWEEK OF 40 HOURS. THAT IS TO SAY, SERVICE IN EXCESS OF THE NORMAL 8 HOURS A DAY OR SERVICE ON SATURDAYS WILL BE CONSIDERED AS HAVING BEEN SUBSTITUTED FOR THOSE DAYS WHEN 8 HOURS OF SERVICE WERE NOT PERFORMED.

REFERRING TO THE EXAMPLE SHOWING SERVICE FROM MARCH 22 THROUGH APRIL 24, 1948, OF 40 HOURS EACH WEEK, YOU ARE ADVISED THAT THE EMPLOYEE WOULD HAVE COMPLETED HIS MONTH OF CONTINUOUS SERVICE ON APRIL 21, 1948, REGARDLESS OF THE FACT THAT THE HOURS OF SERVICE MAY HAVE VARIED ON SOME OF THE DAYS OF THAT PERIOD.

YOUR LAST QUESTION IS WHETHER SPECIAL AGENTS OF THE BUREAU OF THE CENSUS PAID WHEN ACTUALLY EMPLOYED FROM TRUST FUNDS--- STATED TO BE NONAPPROPRIATED FUNDS DERIVED FROM MONEYS RECEIVED FOR CONTRACT SERVICE RENDERED TO INDIVIDUALS OR NONGOVERNMENTAL ORGANIZATIONS--- ARE ENTITLED TO PAY FOR HOLIDAYS ON WHICH THEY RENDER NO SERVICE.

THE HOLIDAY PAY STATUTE OF JUNE 29, 1948, 52 STAT. 1246, 1247, PROVIDES, AS FOLLOWS:

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 OE 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 JOINT RESOLUTION OF JANUARY 6, 1885 ( 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.

IT IS SETTLED THAT THE STATUTE QUOTED ABOVE IS APPLICABLE IN GENERAL TO "W.A.E" EMPLOYEES REGARDLESS OF WHETHER THEY ARE PAID UPON AN HOURLY OR PER DIEM BASIS, IN EITHER CLASSIFIED OR UNCLASSIFIED POSITIONS, OR WHETHER THEIR DAILY RATE OF COMPENSATION BE DERIVED FROM AN ANNUAL SALARY OR OTHERWISE, PROVIDED, THEY ARE CLASSIFIED AS PERMANENT EMPLOYEES UNDER THE LEAVE REGULATIONS. SEE 25 COMP. GEN. 715; 26 ID. 927. HOWEVER, IN THE INSTANT CASE THERE ALSO IS FOR CONSIDERATION WHETHER THE AUTHORITY UNDER WHICH THE "W.A.E.' APPOINTEES WERE EMPLOYED, AND THE SOURCE OF THE FUNDS FROM WHICH THEY ARE PAID, WOULD PRECLUDE THEIR BEING REGARDED AS "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT" UNDER THE 1938 HOLIDAY PAY STATUTE, QUOTED ABOVE. THE AUTHORITY UNDER WHICH THE DEPARTMENT MAY SECURE EMPLOYEES TO FURNISH DATA TO INDIVIDUALS AND NONGOVERNMENTAL ORGANIZATIONS IS CONTAINED IN SECTIONS 1 AND 2 OF THE ACT OF MAY 27, 1935, 49 STAT. 292, 293, AS FOLLOWS:

THAT THE DEPARTMENT OF COMMERCE BE, AND HEREBY IS, AUTHORIZED, WITHIN THE DISCRETION OF THE SECRETARY OF COMMERCE, UPON THE WRITTEN REQUEST OF ANY PERSON, FIRM, OR CORPORATION, TO MAKE SPECIAL STATISTICAL STUDIES RELATING TO FOREIGN TRADE, DOMESTIC TRADE, AND OTHER ECONOMIC MATTERS FALLING WITHIN THE PROVINCE OF THE DEPARTMENT OF COMMERCE; TO PREPARE FROM ITS RECORDS SPECIAL STATISTICAL COMPILATIONS; AND TO FURNISH TRANSCRIPTS OF ITS STUDIES, TABLES, AND OTHER RECORDS, UPON THE PAYMENT OF THE ACTUAL COST OF SUCH WORK BY THE PERSON, FIRM, OR CORPORATION REQUESTING IT.

ALL MONEYS HEREAFTER RECEIVED BY THE DEPARTMENT OF COMMERCE IN PAYMENT OF THE COST OF SUCH WORK SHALL BE DEPOSITED IN A SPECIAL ACCOUNT TO BE ADMINISTERED UNDER THE DIRECTION OF THE SECRETARY OF COMMERCE. THESE MONEYS MAY BE USED, IN THE DISCRETION OF THE SECRETARY OF COMMERCE, AND NOTWITHSTANDING ANY OTHER PROVISION OF LAW, FOR THE ORDINARY EXPENSES INCIDENTAL TO THE WORK AND/OR TO SECURE IN CONNECTION THEREWITH THE SPECIAL SERVICES OF PERSONS WHO ARE NEITHER OFFICERS NOR EMPLOYEES OF THE UNITED STATES.

IN DECISION OF MAY 26, 1936, 15 COMP. GEN. 1036, IT WAS HELD THAT A RETIRED EMPLOYEE HIRED UNDER THE STATUTE JUST QUOTED WAS TO BE REGARDED AS REEMPLOYED IN THE SERVICE OF THE UNITED STATES WITHIN THE MEANING OF SECTION 8 (A) OF THE ACT OF JUNE 16, 1933, 48 STAT. 305, 306, AND NOT ENTITLED TO RECEIVE CIVIL COMPENSATION CONCURRENT WITH CIVIL RETIREMENT BENEFITS. IN ARRIVING AT THAT CONCLUSION IT WAS STATED THAT NOTWITHSTANDING THE SOURCE OF THE FUNDS TO BE USED FOR THE WORK AUTHORIZED BY THE ACT OF MAY 27, 1935, SAID FUNDS ARE GIVEN AN APPROPRIATED STATUS BY SECTION 20 OF THE PERMANENT APPROPRIATION REPEAL ACT OF JUNE 26, 1934, 48 STAT. 1233, AND THAT WHILE AUTHORITY IS GRANTED BY THE ACT OF MAY 27, 1935, FOR SECURING SERVICES OF PERSONS WHO ARE NEITHER OFFICERS NOR EMPLOYEES OF THE UNITED STATES, THE FACT REMAINS THAT SUCH PERSONNEL ARE SELECTED AND HIRED BY AND REQUIRED TO WORK UNDER THE SUPERVISION OF A GOVERNMENT OFFICER OR EMPLOYEE. IN VIEW OF THAT RULING THERE APPEARS NO COGENT REASON FOR REGARDING "W.A.E.' APPOINTEES UNDER THE ACT OF MAY 27, 1935, IN ANY DIFFERENT STATUS FROM OTHER "W.A.E.' APPOINTEES IN THE GOVERNMENT SERVICE FOR PURPOSES OF HOLIDAY PAY UNDER THE ACT OF JUNE 29, 1938.

ACCORDINGLY, APPLYING THE RULES SET FORTH IN 25 COMP. GEN. 715, AND 26 ID. 927, THE SUBJECT EMPLOYEES WOULD BE ENTITLED TO HOLIDAY PAY UNDER THE ACT OF JUNE 29, 1938, WHENEVER THEY ARE ,RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY," SUCH AS SPECIFIED THEREIN. HOWEVER, THERE IS FOR NOTING THAT THE PORTION OF THE LEAVE REGULATIONS DEFINING PERMANENT EMPLOYEES SO AS TO INCLUDE "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 NTH," AND UPON WHICH THE DECISION IN 26 COMP. GEN. 927 WAS PREDICATED, WAS AMENDED UNDER DATE OF SEPTEMBER 10, 1947--- CHAPTER 21-353 FEDERAL PERSONNEL MANUAL--- TO OMIT THE WORDS "OR REQUIRED TO BE AVAILABLE FOR DUTY.' HENCE, THE INDICATION IN 26 COMP. GEN. 927 THAT A "W.A.E.' EMPLOYEE WAS ENTITLED TO COMPENSATION FOR A HOLIDAY OCCURRING WITHIN THE MONTH OF SERVICE, EVEN THOUGH HE MAY NOT HAVE WORKED CONTINUOUSLY FOR A MONTH BEFORE THE HOLIDAY--- PROVIDING THAT IT WAS ANTICIPATED THAT THE EMPLOYEE WOULD SERVE OR BE REQUIRED TO BE AVAILABLE FOR DUTY FOR A CONTINUOUS MONTH--- WOULD NO LONGER BE APPLICABLE IN ITS ENTIRETY.

UNDER THE LEAVE REGULATIONS AS AMENDED, A "W.A.E.' EMPLOYEE APPOINTED FOR A PERIOD IN EXCESS OF 1 YEAR IS NOT ENTITLED TO EARN OR TO BE CREDITED WITH LEAVE AS A PERMANENT EMPLOYEE UNTIL HE HAS COMPLETED A PERIOD OF CONTINUOUS SERVICE OF NOT LESS THAN 1 MONTH, BUT, AT THAT TIME, HE MAY BE REGARDED AS EARNING LEAVE AS A PERMANENT EMPLOYEE FOR THE ENTIRE PERIOD OF CONTINUOUS SERVICE. SINCE AN EMPLOYEE'S RIGHT TO HOLIDAY PAY DEPENDS UPON HIS STATUS AS A PERMANENT EMPLOYEE UNDER THE LEAVE REGULATIONS IT CLEARLY IS EVIDENT THAT A "W.A.E.' EMPLOYEE IS NOT ENTITLED TO BE PAID FOR A HOLIDAY OCCURRING WITHIN A PERIOD OF CONTINUOUS SERVICE UNTIL IT BE ASCERTAINED WHETHER THE PERIOD OF CONTINUOUS SERVICE WILL EXTEND FOR THE REQUIRED PERIOD OF NOT LESS THAN 1 MONTH.

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