B-87473, OCTOBER 12, 1949, 29 COMP. GEN. 177

B-87473: Oct 12, 1949

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ARE NOT TO BE REGARDED AS "REGULAR EMPLOYEES" ENTITLED TO COMPENSATION PURSUANT TO THE PER DIEM. 1949: REFERENCE IS MADE TO YOUR LETTER OF JUNE 21. ARE NOT "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT" WITHIN THE MEANING THEREOF. EVEN THOUGH A NEW APPOINTMENT OF THE SAME TYPE WAS ISSUED TO THEM? PROVIDES: THAT HEREAFTER WHENEVER REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY. OR ON A PIECE WORK BASIS ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCES OF A HOLIDAY SUCH AS NEW YEAR'S DAY. 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.

B-87473, OCTOBER 12, 1949, 29 COMP. GEN. 177

SUNDAYS AND HOLIDAYS - COMPENSATION - ALIEN AND NATIVE EMPLOYEES EMPLOYED OUTSIDE THE CONTINENTAL UNITED STATES ALIEN AND NATIVE EMPLOYEES EMPLOYED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, IRRESPECTIVE OF THE TENURE OF THEIR EMPLOYMENT, ARE NOT 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 THE NAVY, OCTOBER 12, 1949:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 21, 1949, REQUESTING DECISION UPON THE FOLLOWING THREE QUESTIONS:

(1) DO THE PROVISIONS OF PUBLIC RESOLUTION NO. 127 OF JUNE 29, 1938 (5 U.S.C. 86A) APPLY TO ALIEN AND NATIVE LABOR EMPLOYED OUTSIDE THE CONTINENTAL UNITED STATES?

(2) IF SO, UNDER THE FACTS PRESENTED ABOVE, MAY ALIEN AND NATIVE WAGE BOARD EMPLOYEES OF NAVAL ACTIVITIES AT GUANTANAMO BAY, CUBA, BE CONSIDERED "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT" WITHIN THE MEANING OF PUBLIC RESOLUTION NO. 127?

(3) IF IT SHOULD BE HELD THAT PUBLIC RESOLUTION NO. 127 DOES APPLY TO ALIEN AND NATIVE LABOR EMPLOYED OUTSIDE THE CONTINENTAL UNITED STATES, AND THAT ALIEN AND NATIVE WAGE BOARD EMPLOYEES OF NAVAL ACTIVITIES AT GUANTANAMO BAY, CUBA, ARE NOT "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT" WITHIN THE MEANING THEREOF, WOULD SUCH WAGE BOARD EMPLOYEES BECOME ELIGIBLE FOR THE BENEFITS OF THE LEGISLATION AFTER SERVING FOR ONE YEAR, EVEN THOUGH A NEW APPOINTMENT OF THE SAME TYPE WAS ISSUED TO THEM?

SECTION 1 OF PUBLIC RESOLUTION 127 OF JUNE 29, 1938, 52 STAT. 1246, 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 OCCURRENCES 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.

PRIOR TO THE PASSAGE OF PUBLIC RESOLUTION 127 OF JUNE 29, 1938, ALIEN AND NATIVE EMPLOYEES OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WERE NOT ENTITLED TO COMPENSATION FOR HOLIDAYS WHEN NOT WORKING AS THEY WERE NOT EMPLOYED "IN THE UNITED STATES" AND, THEREFORE, NOT WITHIN THE PURVIEW OF THE ACT OF JANUARY 6, 1885, 23 STAT. 516, 5 U.S.C. 86, WHICH BY ITS TERMS WAS APPLICABLE ONLY TO PER DIEM EMPLOYEES IN THE UNITED STATES. PUBLIC LAW 127 CHANGED THE BASIS FOR PAYMENT BUT, IN GENERAL, WAS NOT INTENDED TO ENLARGE THE CLASS OF EMPLOYEES ENTITLED TO HOLIDAY PAY, EXCEPT TO THE EXTENT NECESSITATED BY THE SUBSTITUTION OF "REGULAR EMPLOYEES" FOR "PER DIEM EMPLOYEES.' 18 COMP. GEN. 481; 19 ID. 337. IN THAT CONNECTION, IT CONSISTENTLY HAS BEEN HELD THAT ALIEN AND NATIVE EMPLOYEES RECRUITED LOCALLY OUTSIDE THE UNITED STATES AND PAID PREVAILING NATIVE WAGE RATES ARE NOT ENTITLED TO THE BENEFIT OF SALARY LAWS CONTROLLING PAYMENTS TO AMERICAN CITIZENS. 10 COMP. GEN. 322; 22 ID. 678, 680. THAT IS, THERE LONG HAS BEEN A DISTINCTION RECOGNIZED IN THE MATTER OF COMPENSATION BETWEEN SUCH ALIEN OR NATIVE EMPLOYEES, OUTSIDE OF THE UNITED STATES, AND EMPLOYEES OF THE GOVERNMENT WHO TEMPORARILY ARE LOCATED OUTSIDE THE UNITED STATES. I FIND NOTHING IN PUBLIC RESOLUTION 127 INDICATING ANY INTENTION TO ELIMINATE SUCH DISTINCTION. ACCORDINGLY, IT MUST BE CONCLUDED THAT ALIEN OR NATIVE EMPLOYEES ARE NOT REGULAR EMPLOYEES WITHIN THE PURVIEW OF PUBLIC RESOLUTION 127, IRRESPECTIVE OF THE TENURE OF THEIR EMPLOYMENT. SEE, ALSO, 17 COMP. GEN. 830; 25 ID. 407, AND B-69310, SEPTEMBER 24, 1947, WITH RESPECT TO THE NON-APPLICATION OF PUBLIC RESOLUTION 127 TO TEMPORARY APPOINTMENTS. YOUR QUESTION (1) IS THEREFORE ANSWERED IN THE NEGATIVE, RENDERING UNNECESSARY ANSWERS TO QUESTIONS (2) AND (3).

THE FOREGOING IS NOT TO BE UNDERSTOOD AS NEGATIVING THE RIGHT OF YOUR DEPARTMENT, UNDER ITS AUTHORITY TO ADMINISTRATIVELY ADJUST THE RATES OF SALARY OR WAGES PAID TO SUCH ALIEN OR NATIVE EMPLOYEES, TO PROVIDE BY REGULATION THAT SUCH SALARIES OR WAGES WILL INCLUDE COMPENSATION TO SUCH EMPLOYEES FOR HOLIDAYS WHEN NOT WORKING, WHICH ACTION, IT WOULD APPEAR FROM YOUR SUBMISSION, HAS ALREADY BEEN TAKEN. COMPARE B-66281, MAY 26, 1947.