B-8123, FEBRUARY 21, 1940, 19 COMP. GEN. 746

B-8123: Feb 21, 1940

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WHO WAS NEITHER REQUIRED TO WORK EVERY DAY NOR TO WORK A REGULAR NUMBER OF HOURS EVERY DAY SHE WORKED. IS NOT A "REGULAR" EMPLOYEE OF THE GOVERNMENT WITHIN THE MEANING OF THE PER DIEM. IS NOT ENTITLED TO COMPENSATION FOR HOLIDAYS WHEN NO WORK WAS PERFORMED. 19 COMP. 1940: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 25. AS FOLLOWS: IT IS HEREBY REQUESTED THAT RECONSIDERATION BE GIVEN TO YOUR DECISION (SETTLEMENT) OF OCTOBER 12. MY APPOINTMENT WAS DEFINITELY STATED TO ME TO BE ON A HALF-DAY BASIS AT THE RATE OF 50 CENTS PER HOUR. THIS WAS NECESSARY IN VIEW OF THE NATURE OF THE POSITION. WHICH WAS AN EXCEPTED POSITION UNDER SCHEDULE A OF THE CIVIL SERVICE RULES. THE CONTENTION MADE BY YOU THAT EMPLOYEES APPOINTED AND PAID UPON THE BASIS OF "WHEN ACTUALLY EMPLOYED" ARE EMPLOYED FROM DAY TO DAY RATHER THAN ON A REGULAR BASIS AND ARE PAID ONLY FOR THE DAYS THEY ACTUALLY WORK PRECLUDES PAYMENT OF COMPENSATION TO THEM FOR ANY DAY ON WHICH THEY DO NOT WORK.

B-8123, FEBRUARY 21, 1940, 19 COMP. GEN. 746

SUNDAYS AND HOLIDAYS - HOLIDAYS - COMPENSATION - INTERMITTENT EMPLOYMENT AT EMPLOYEE'S OWN VOLITION AN EMPLOYEE SERVING INTERMITTENTLY AT HER OWN VOLITION UNDER AN APPOINTMENT PROVIDING FOR PAYMENT AT AN HOURLY RATE WHEN ACTUALLY EMPLOYED AND FOR A MAXIMUM OF NINETY HOURS WORK IN ANY ONE MONTH, WHO WAS NEITHER REQUIRED TO WORK EVERY DAY NOR TO WORK A REGULAR NUMBER OF HOURS EVERY DAY SHE WORKED, IS NOT A "REGULAR" EMPLOYEE OF THE GOVERNMENT WITHIN THE MEANING OF THE PER DIEM, ETC., EMPLOYEE HOLIDAY COMPENSATION ACT OF JUNE 29, 1938, 52 STAT. 1246, AND IS NOT ENTITLED TO COMPENSATION FOR HOLIDAYS WHEN NO WORK WAS PERFORMED. 19 COMP. GEN. 426, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO MRS. DOROTHY BELL HILL, FEBRUARY 21, 1940:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 25, 1939, AS FOLLOWS:

IT IS HEREBY REQUESTED THAT RECONSIDERATION BE GIVEN TO YOUR DECISION (SETTLEMENT) OF OCTOBER 12, 1939, RELATIVE TO CLAIM NO. 10821701 FOR $12.00, REPRESENTING PAY FOR CERTAIN HOLIDAYS OCCURRING DURING MY EMPLOYMENT BY THE DEPARTMENT OF AGRICULTURE, BUREAU OF HOME ECONOMICS FOR THE REASONS HEREINAFTER STATED:

AS INDICATED IN MY SUBMISSION, MY APPOINTMENT WAS DEFINITELY STATED TO ME TO BE ON A HALF-DAY BASIS AT THE RATE OF 50 CENTS PER HOUR; 4 HOURS TO CONSTITUTE A FULL DAY'S WORK. THIS WAS NECESSARY IN VIEW OF THE NATURE OF THE POSITION, WHICH WAS AN EXCEPTED POSITION UNDER SCHEDULE A OF THE CIVIL SERVICE RULES. UNDER THIS POSITION COMPENSATION COULD NOT EXCEED $540 PER YEAR.

THE CONTENTION MADE BY YOU THAT EMPLOYEES APPOINTED AND PAID UPON THE BASIS OF "WHEN ACTUALLY EMPLOYED" ARE EMPLOYED FROM DAY TO DAY RATHER THAN ON A REGULAR BASIS AND ARE PAID ONLY FOR THE DAYS THEY ACTUALLY WORK PRECLUDES PAYMENT OF COMPENSATION TO THEM FOR ANY DAY ON WHICH THEY DO NOT WORK, INCLUDING HOLIDAYS, AND ARE NOT, THEREFORE, TO BE REGARDED AS "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR * * * RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY," WITHIN THE MEANING OF THE HOLIDAY STATUTE OF JUNE 29, 1938, 52 STAT. 1246. THIS POSITION IS NOT BORNE OUT BY YOUR DECISION OF OCTOBER 9, 1929 (B-4677./S) ( TO THE BUREAU OF RECLAMATION OF THE DEPARTMENT OF THE INTERIOR WHEREIN IT IS STATED THAT EVEN THOUGH EMPLOYEES ARE APPOINTED AND PAID "WHEN ACTUALLY EMPLOYED" WHO ARE ENGAGED FOR INDEFINITE PERIODS OR FOR PERIODS OF NOT LESS THAN 6 MONTHS IN INTERMITTENTS, AT THEIR OWN VOLITION * * * ARE "REGULAR EMPLOYEES" FOR HOLIDAY COMPENSATION PURPOSES UNDER THE ACT OF JUNE 29, 1938, AND MAY BE PAID ACCORDINGLY IF THEY HAVE BEEN CONTINUOUSLY ON DUTY DURING THE 30 DAYS NEXT PRECEDING THE DAY IN QUESTION AND IF ALL CONDITIONS OF THE STATUTE HAVE BEEN MET AND THE HOLIDAYS FOR WHICH THEY MAY BE PAID INCLUDES MONDAYS AND OTHER DAYS (OBSERVED WHERE HOLIDAYS FALL ON SUNDAYS), SPECIFIED IN EXECUTIVE ORDER NO. 1076 OF MAY 22, 1909.

THE POSITION TAKEN BY YOU IN THIS DECISION IS EXACTLY WHAT MY POSITION WAS AS AN EMPLOYEE OF THE BUREAU OF HOME ECONOMICS. I WAS EMPLOYED REGULARLY FOR EVERY WORKDAY IN THE WEEK ON A 4-HOUR BASIS WHICH CONSTITUTED A FULL DAY'S WORK THE SAME AS PARTS OF DAYS CONSTITUTE A FULL DAY'S WORK FOR OTHER EMPLOYEES SUCH AS CHARWOMEN, ETC., AND, UNDER THE CIRCUMSTANCES, I FEEL THAT I AM ENTITLED TO THE AMOUNT IN QUESTION AND AGAIN MAKE CLAIM FOR THE SAME.

THE RECORDS OF THIS OFFICE SHOW THAT WHILE, UNDER THE TERMS OF YOUR APPOINTMENT, YOU WERE TO BE PAID AT THE RATE OF 50 CENTS PER HOUR WHEN ACTUALLY EMPLOYED AND WERE PRECLUDED FROM WORKING MORE THAN 90 HOURS IN ANY 1 MONTH, YOU WERE NOT REQUIRED TO WORK REGULARLY EVERY DAY. NEITHER WERE YOU REQUIRED TO WORK A REGULAR NUMBER OF HOURS EVERY DAY YOU WORKED. ON NOVEMBER 3, 4, 5, 25, AND 26, DECEMBER 9, 10, 12, 14, 27, 28, 29, AND 30, 1938, AND JANUARY 7 AND 14, 1939, YOU PERFORMED NO SERVICE. WHILE ON MOST OF THE DAYS YOU WORKED THE PERIOD OF DUTY IS SHOWN TO HAVE BEEN 4 HOURS, THERE WERE DAYS ON WHICH YOU WORKED 1 3/4 HOURS ( NOVEMBER 17, 1938), 2 HOURS ( DECEMBER 7, 1938), 2 1/2 HOURS ( NOVEMBER 7, 1938), 3 1/4 HOURS ( NOVEMBER 19, 1938), 3 1/2 HOURS ( OCTOBER 29, NOVEMBER 18, AND DECEMBER 5, 1938), 3 3/4 HOURS ( NOVEMBER 16, 1938), 4 1/2 HOURS ( DECEMBER 19 AND 20, 1938, AND JANUARY 12, 1939), AND 5 1/2 HOURS ( NOVEMBER 29 AND 30, AND DECEMBER 13, 1938).

PUBLIC RESOLUTION NO. 127, DATED JUNE 29, 1938, 52 STAT. 1246, PROVIDES, IN PART, 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 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.

YOUR CLAIM HAS BEEN PRESENTED PRIMARILY ON THE ASSUMPTION THAT YOU WERE A "REGULAR" EMPLOYEE OF THE GOVERNMENT WITHIN THE MEANING OF THE HOLIDAY STATUTE UNDER THE RULE STATED IN DECISION OF OCTOBER 9, 1939, 18 COMP. GEN. 426. IN SAID DECISION THERE WAS NOT CONSIDERED NOR DECIDED WHETHER PART-TIME EMPLOYEES MAY BE REGARDED AS "REGULAR" EMPLOYEES OF THE GOVERNMENT WITHIN THE MEANING OF THE HOLIDAY STATUTE. THE CLASSES OF CASES THERE CONSIDERED INVOLVED EMPLOYEES PAID ON A PER DIEM BASIS "WHEN ACTUALLY EMPLOYED," NOT EMPLOYEES WHO ARE EMPLOYED ONLY A PORTION OF EACH WORK DAY. IN THE CONCLUDING SENTENCE OF THE THIRD PARAGRAPH OF YOUR ABOVE -QUOTED LETTER YOU REFER TO THE CITED DECISION AS HAVING HELD THAT (QUOTING FROM YOUR STATEMENT) "EVEN THOUGH EMPLOYEES ARE APPOINTED AND PAID "WHEN ACTUALLY EMPLOYED" WHO ARE ENGAGED FOR INDEFINITE PERIODS OR FOR PERIODS OF NOT LESS THAN 6 MONTHS IN INTERMITTENTS, AT THEIR OWN VOLITION * * * ARE "REGULAR EMPLOYEES" FOR HOLIDAY COMPENSATION PURPOSES.' THE SENTENCE IN QUESTION ATTEMPTS TO FOLLOW, IN GENERAL, THE LANGUAGE USED IN THE THIRD PARAGRAPH OF THE SYLLABUS (19 COMP. GEN. 426), BUT THERE IS FOR NOTING THAT, WITH REFERENCE TO THE ENGAGEMENT OF THE CLASS OF EMPLOYEES INVOLVED IN SAID STATEMENT, BOTH THE PARAGRAPH OF THE SYLLABUS AND THE TEXT OF THE DECISION CONTAIN (WITH REFERENCE TO SUCH APPOINTMENTS) THE QUALIFYING WORDS,"NOT INTERMITTENTLY AT THEIR OWN VOLITION.' THEREFORE, IF YOUR EMPLOYMENT WAS AT YOUR OWN VOLITION, AND SINCE, AS HEREINBEFORE INDICATED, YOU WERE INTERMITTENTLY EMPLOYED, YOUR CASE WOULD BE CONTROLLED BY THAT PART OF THE SAID DECISION WHICH READS AS FOLLOWS:

* * * AT THE OUTSET, ONE WHO IS, QUOTING FROM THE THIRD PARAGRAPH OF YOUR TTER,"INTERMITTENTLY EMPLOYED AT HIS OWN VOLITION"--- IF, AS INFERRED, THIS IMPLIES THAT HE MAY OR MAY NOT REPORT FOR WORK AS AND WHEN HE CHOOSES --- CANNOT QUALIFY AS A REGULAR EMPLOYEE IN ANY SENSE. * * * ( ITALICS SUPPLIED.)

ACCORDINGLY, UPON THE RECORD BEFORE THIS OFFICE, IT MUST BE CONCLUDED THAT YOU WERE NOT A ,REGULAR" EMPLOYEE OF THE GOVERNMENT WITHIN THE MEANING OF THE HOLIDAY STATUTE.