B-870, FEBRUARY 3, 1939, 18 COMP. GEN. 637

B-870: Feb 3, 1939

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WHO WAS NOTIFIED OF THE TERMINATION OF HIS APPOINTMENT AS LABORER EFFECTIVE PRIOR TO MONDAY THE SECOND HOLIDAY. ALTHOUGH THE APPOINTMENT WAS ISSUED PRIOR THERETO AND MIGHT HAVE BEEN DELIVERED TO HIM SOONER HAD IT NOT BEEN FOR THE INTERVENING HOLIDAYS. IS NOT ENTITLED BECAUSE OF THE HOLIDAY PUBLIC RESOLUTION OF JUNE 29. IF THE APPOINTMENT AS LABORER WAS NOT LEGALLY TERMINATED UNTIL THE DAY AFTER THE SECOND HOLIDAY. WORK WAS PREVENTED ON THE PRECEDING HOLIDAYS SOLELY BECAUSE OF THE OCCURRENCE OF THE HOLIDAYS. PAYMENT FOR THE SAID HOLIDAYS IS AUTHORIZED. WHO WAS ABSENT ON AUTHORIZED SICK LEAVE WITH PAY ON THE DAY FOLLOWING THE LAST HOLIDAY. IS NOT NECESSARILY PRECLUDED FROM RECEIVING HIS REGULAR COMPENSATION FOR THE INTERVENING HOLIDAYS.

B-870, FEBRUARY 3, 1939, 18 COMP. GEN. 637

HOLIDAY COMPENSATION - PER DIEM EMPLOYEES - APPOINTMENT FOLLOWING PRIOR EMPLOYMENT TERMINATION AND INTERVENING HOLIDAYS - SICK LEAVE IMMEDIATELY FOLLOWING A HOLIDAY A LABORER EMPLOYED ON A PER DIEM 6-DAY WEEK BASIS WHO WORKED ON FRIDAY, THE DAY PRECEDING A HOLIDAY FOLLOWED BY SUNDAY AND ANOTHER HOLIDAY, BUT WHO WAS NOTIFIED OF THE TERMINATION OF HIS APPOINTMENT AS LABORER EFFECTIVE PRIOR TO MONDAY THE SECOND HOLIDAY, AND WHO DID NOT RECEIVE NOTICE OF HIS APPOINTMENT AS UNDER STOREKEEPER UNTIL THE DAY FOLLOWING THE LAST HOLIDAY, ALTHOUGH THE APPOINTMENT WAS ISSUED PRIOR THERETO AND MIGHT HAVE BEEN DELIVERED TO HIM SOONER HAD IT NOT BEEN FOR THE INTERVENING HOLIDAYS, IS NOT ENTITLED BECAUSE OF THE HOLIDAY PUBLIC RESOLUTION OF JUNE 29, 1938, 52 STAT. 1246, TO PAY FOR THE INTERVENING HOLIDAYS, BUT IF THE APPOINTMENT AS LABORER WAS NOT LEGALLY TERMINATED UNTIL THE DAY AFTER THE SECOND HOLIDAY, AND WORK WAS PREVENTED ON THE PRECEDING HOLIDAYS SOLELY BECAUSE OF THE OCCURRENCE OF THE HOLIDAYS, PAYMENT FOR THE SAID HOLIDAYS IS AUTHORIZED. A LABORER EMPLOYED ON AN HOURLY 6-DAY WEEK BASIS WHO WORKED ON FRIDAY, THE DAY PRECEDING A HOLIDAY FOLLOWED BY SUNDAY AND ANOTHER HOLIDAY, AND WHO WAS ABSENT ON AUTHORIZED SICK LEAVE WITH PAY ON THE DAY FOLLOWING THE LAST HOLIDAY, IS NOT NECESSARILY PRECLUDED FROM RECEIVING HIS REGULAR COMPENSATION FOR THE INTERVENING HOLIDAYS, BUT TO AUTHORIZE SUCH PAYMENT THERE MUST BE A SHOWING THAT THE EMPLOYEE WAS RELIEVED OR PREVENTED FROM WORKING ON THOSE 2 DAYS SOLELY BECAUSE OF THE OCCURRENCE OF THE HOLIDAYS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE AMERICAN COMMISSIONER, INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO, FEBRUARY 3, 1939:

YOUR LETTER OF JANUARY 20, 1939, IS AS FOLLOWS:

WITH REFERENCE TO PUBLIC RESOLUTION NO. 127, 75TH CONGRESS, DATED JUNE 29, 1938, A QUESTION HAS ARISEN RELATIVE TO PAYMENT ON HOLIDAYS FOR PER DIEM EMPLOYEES. IN THE EVENT A LABORER, WITH COMPENSATION AT THE RATE OF $3.00 PER DAY ON A 6-DAY BASIS, WORKED ON DECEMBER 30, 1938, IN THAT CAPACITY, AND ON JANUARY 3, 1939, IN THE CAPACITY OF AN UNDER STOREKEEPER WITH COMPENSATION AT THE RATE OF $1,260 PER ANNUM, WOULD HE BE ENTITLED TO PAY FOR SATURDAY, DECEMBER 31, 1938, AND MONDAY, JANUARY 2, 1939, HOLIDAYS, AS A LABORER AT $3.00 PER DAY?

IN THE INSTANT CASE A LETTER OF APPOINTMENT WAS ISSUED TO THE EMPLOYEE UNDER DATE OF DECEMBER 20, 1938, AND WAS FORWARDED TO THE FIELD OFFICE OF THIS COMMISSION FOR DELIVERY TO THE APPOINTEE. THE OFFICER IN CHARGE IN THE FIELD DID NOT DELIVER THE LETTER TO THE ADDRESSEE UNTIL JANUARY 3, 1939, ON WHICH DATE THE EMPLOYEE TOOK THE NECESSARY OATH OF OFFICE AND ENTERED UPON DUTY AS AN UNDER STOREKEEPER. THE LETTER OF APPOINTMENT WOULD HAVE BEEN DELIVERED ON JANUARY 1 OR JANUARY 2, HAD THOSE DAYS NOT BEEN HOLIDAYS.

ANOTHER QUESTION ARISES RELATIVE TO A LABORER ON AN HOURLY BASIS REGULARLY WORKING 6 DAYS PER WEEK WHO WORKED ON DECEMBER 30, 1938, AND WHO WOULD HAVE WORKED IN THE SAME CAPACITY ON JANUARY 3, 1939, HAD HE NOT BEEN SICK ON THAT DAY. WOULD THIS LABORER BE ENTITLED TO PAY ON DECEMBER 31, 1938, AND JANUARY 2, 1939, HOLIDAYS? HE WAS GRANTED SICKLEAVE ON JANUARY 3, 1939.

IN DECISION OF APRIL 11, 1925, 4 COMP. GEN. 845, 846, IT WAS HELD AS FOLLOWS:

THE DECISIONS HAVE BEEN THAT THERE MUST BE AN ACCEPTANCE OF APPOINTMENT TO ENTITLE AN OFFICER OR EMPLOYEE TO COMPENSATION. ACCEPTANCE MAY BE SHOWN BY FORMAL ACCEPTANCE, BY ENTRY ON DUTY, OR BY TAKING THE OATH OF OFFICE. * * *

IN THE FIRST CASE THE FACTS PRESENTED SHOW THAT THE EMPLOYEE DID NOT RECEIVE NOTICE OF HIS APPOINTMENT AS UNDER STOREKEEPER UNTIL JANUARY 3, 1939, PRIOR TO WHICH HE COULD NOT HAVE ACCEPTED THE APPOINTMENT EITHER FORMALLY, BY ENTRY ON DUTY, OR BY OATH OF OFFICE. SEE 23 COMP. DEC. 593. HENCE, THE EMPLOYEE WOULD NOT BE ENTITLED TO PER ANNUM COMPENSATION AS UNDER STOREKEEPER FOR ANY PERIOD PRIOR TO JANUARY 3, 1939. THE FACTS DO NOT SHOW DEFINITELY WHETHER OR NOT THE APPOINTMENT AS LABORER WAS FORMALLY TERMINATED BY ADMINISTRATIVE ACTION PRIOR TO JANUARY 3, OF WHICH THE EMPLOYEE HAD NOTICE. BUT SINCE HE DID NOT RECEIVE NOTICE OF HIS APPOINTMENT IN THE OTHER CAPACITY UNTIL JANUARY 3, 1939. THE FACTS DO NOT SHOW DEFINITELY WHETHER OR NOT THE APPOINTMENT AS LABORER WAS FORMALLY TERMINATED BY ADMINISTRATIVE ACTION PRIOR TO JANUARY 3, OF WHICH THE EMPLOYEE HAD NOTICE. BUT SINCE HE DID NOT RECEIVE NOTICE OF HIS APPOINTMENT IN THE OTHER CAPACITY UNTIL JANUARY 3, 1939, IT WOULD APPEAR THAT HIS APPOINTMENT AS LABORER WAS NOT LEGALLY TERMINATED UNTIL THAT TIME. IF THESE BE THE FACTS, AND THE EMPLOYEE WAS RELIEVED OR PREVENTED FROM WORKING ON DECEMBER 31, 1938, AND JANUARY 2, 1939, SOLELY BECAUSE OF THE OCCURRENCE OF THE HOLIDAYS, HE IS ENTITLED TO HIS REGULAR RATE OF COMPENSATION OF $3 PER DIEM FOR THOSE 2 HOLIDAYS. HOWEVER, IF HE WAS NOTIFIED OF THE TERMINATION OF HIS APPOINTMENT AS LABORER EFFECTIVE AT ANY TIME PRIOR TO JANUARY 2, 1939, HE IS NOT ENTITLED TO COMPENSATION FOR THE PERIOD INTERVENING BETWEEN THE TERMINATION OF ONE APPOINTMENT AND THE EFFECTIVE DATE OF THE OTHER. 19 COMP. DEC. 165.

REFERRING TO THE CONCLUDING PARAGRAPH OF YOUR LETTER, IT HAS BEEN HELD IN EFFECT THAT AN EMPLOYEE IS ENTITLED TO EXACTLY THE SAME AMOUNT OF COMPENSATION FOR A WEEK IN WHICH A HOLIDAY AND LEAVE OF ABSENCE WITH PAY OCCURS AS HE WOULD HAVE RECEIVED HAD HE REMAINED ON DUTY. 18 COMP. GEN. 378; ID. 429. THE FACT THAT THE EMPLOYEE WAS ABSENT ON AUTHORIZED SICK LEAVE WITH PAY ON JANUARY 3, 1939, DOES NOT NECESSARILY PRECLUDE PAYMENT TO HIM OF COMPENSATION OF HIS REGULAR RATE OF COMPENSATION FOR DECEMBER 31, 1938, AND JANUARY 2, 1939, SINCE AUTHORIZED LEAVE STATUS IS SYNONYMOUS TO A WORK OR DUTY STATUS (13 COMP. GEN. 370; 17 ID. 906), BUT TO AUTHORIZE SUCH PAYMENT OF COMPENSATION THERE MUST BE A SHOWING OF FACTS THAT THE EMPLOYEE WAS RELIEVED OR PREVENTED FROM WORKING ON THOSE 2 DAYS SOLELY BECAUSE OF THE OCCURRENCE OF THE HOLIDAYS. SEE DECISION OF AUGUST 29, 1938, 18 COMP. GEN. 206.