B-53211, APRIL 12, 1946, 25 COMP. GEN. 715

B-53211, APRIL 12, 1946, 25 COMP. GEN. 715

HOLIDAY COMPENSATION - "WHEN ACTUALLY EMPLOYED" EMPLOYEES "INDEFINITE" WAR SERVICE APPOINTEES WHO ARE PAID ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS UNDER AN APPOINTMENT FOR THE DURATION OF THE WAR AND FOR SIX MONTHS THEREAFTER, HAVING BEEN DEFINED BY THE CIVIL SERVICE COMMISSION AS "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, REGARDLESS OF THE PERIOD OF THEIR ACTUAL SERVICE. COMP. GEN. 407, AMPLIFIED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, APRIL 12, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 31, 1946, REQUESTING RECONSIDERATION OF THE DECISION OF THIS OFFICE DATED NOVEMBER 15, 1945, B- 53211, 25 COMP. GEN. 407, TO MR. WILBUR B. MONTGOMERY, AUTHORIZED CERTIFYING OFFICER, PUBLIC BUILDINGS ADMINISTRATION, FEDERAL WORKS AGENCY, RESPECTING THE RIGHTS OF CERTAIN EMPLOYEES OF THE FEDERAL GOVERNMENT TO COMPENSATION UNDER THE PROVISIONS OF PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938, 52 STAT. 1246, 1247, FOR HOLIDAYS ON WHICH NO WORK IS PERFORMED. ORDINARILY, DECISIONS RENDERED BY THIS OFFICE TO OFFICIALS OF THE GOVERNMENT ARE NOT REVIEWABLE OR FOR RECONSIDERATION EXCEPT AT THE REQUEST OF THE OFFICIAL TO WHOM RENDERED. HOWEVER, IT IS REALIZED THAT THERE ARE MANY EMPLOYEES IN THE VARIOUS NAVAL ACTIVITIES WHO MIGHT BE AFFECTED BY THE HOLDING IN THAT DECISION AND, THEREFORE, YOUR REQUEST WILL BE CONSIDERED UPON THAT BASIS.

PUBLIC RESOLUTION NO. 127 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 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, 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.

THE QUOTED STATUTE HAS BEEN THE SUBJECT OF NUMEROUS DECISIONS BY THIS OFFICE, EACH PRIMARILY CONCERNED WITH THE PROPER INTERPRETATION TO BE GIVEN THE TERM,"REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT," AS USED THEREIN AND, IN DETERMINING WHETHER PARTICULAR EMPLOYEES OR CLASSES OF EMPLOYEES WERE TO BE CONSIDERED AS "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT," THERE HAVE BEEN USED--- AS A GENERAL GUIDE--- THE DEFINITIONS OF THE EMPLOYEES' STATUS FOR LEAVE PURPOSES AS CONTAINED IN THE REGULATIONS GOVERNING THE GRANTING OF ANNUAL AND SICK LEAVE. THAT RECOURSE TO SUCH DEFINITIONS IN ORDER TO ASCERTAIN AN EMPLOYEE'S RIGHT TO HOLIDAY PAY UNDER THE 1938 STATUTE IS NOT FREE FROM OBJECTION HAS BEEN RECOGNIZED IN THE PREVIOUS DECISIONS OF THIS OFFICE. HOWEVER, IN THE ABSENCE OF ANY LEGISLATION AFFECTING FEDERAL EMPLOYEES, OTHER THAN THE QUOTED PROVISION IN THE 1938 STATUTE, WHEREIN THE TERM "REGULAR EMPLOYEES" HAS BEEN USED OR DEFINED, SUCH DEFINITIONS HAVE BEEN VIEWED AS PRESENTING THE BEST AVAILABLE GUIDES TO A PRACTICAL SOLUTION OF THE PROBLEM.

THE DECISION OF NOVEMBER 15, 1945, ENUNCIATED NO NEW RULES RESPECTING THE DETERMINATION OF ,REGULAR EMPLOYEES" AS THAT TERM IS USED IN THE 1938 STATUTE, BUT MERELY APPLIED THE ESTABLISHED PRINCIPLES SET FORTH IN NUMEROUS PRIOR DECISIONS OF THE ACCOUNTING OFFICERS TO THE CHANGED DEFINITIONS OF "PERMANENT," "TEMPORARY," AND "INDEFINITE" EMPLOYEES NOW APPEARING IN THE CURRENT LEAVE REGULATIONS.

AS A BASIS FOR DETERMINING WHO IS A REGULAR EMPLOYEE WITHIN THE MEANING OF THE 1938 STATUTE, THE FOLLOWING SUGGESTION IS CONTAINED IN YOUR LETTER:

THE WORD "REGULAR" HAS A VARIETY OF MEANING AS IS SHOWN FROM THE FOLLOWING DEFINITION CONTAINED IN CORPUS JURIS, VOLUME 53, PAGE 1168.

"REGULAR. AS ADJECTIVE. 1. IN GENERAL. ACCORDING TO ESTABLISHED CUSTOMARY FORMS; AGREEABLE TO AN ESTABLISHED RULE, LAW, TYPE, OR PRINCIPLE, OR TO A PRESCRIBED MODE, OR TO ESTABLISHED CUSTOMARY FORM; CONFORMABLE TO A RULE, OR TO LAW, OR TO AN ESTABLISHED RULE, LAW, OR PRINCIPLE; CONFORMED TO, OR MADE IN ACCORDANCE WITH, A RULE; CONFORMING TO A CONSISTENT PLAN; DULY UTHORIZED; FORMALLY CORRECT; FORMED AFTER A TYPE; MADE ACCORDING TO RULE; METHODICAL; NORMAL; OR PERIODICAL.'

SHOULD THE MOST FAVORABLE DEFINITION BE ADOPTED, THAT OF "DULY AUTHORIZED," ALL PER DIEM EMPLOYEES WOULD RECEIVE THE BENEFIT OF THE HOLIDAY PAY LEGISLATION, REGARDLESS OF THE NATURE OF THEIR APPOINTMENTS, SINCE IT CAN BE ASSUMED THAT PER DIEM EMPLOYEES ARE APPOINTED ONLY WHEN "DULY AUTHORIZED.'

NUMEROUS COURT DECISIONS ARE FOUND, GENERALLY UNDER THE VARIOUS STATE WORKMEN'S COMPENSATION LAWS, TO THE EFFECT THAT THE TEST OF WHAT CONSTITUTES A "REGULAR EMPLOYEE" DOES NOT DEPEND ON THE DURATION OR EVEN THE REGULARITY OF SERVICE, BUT RATHER WHETHER THE EMPLOYMENT IS IN THE USUAL COURSE OF THE EMPLOYER'S BUSINESS. (SEE FOR EXAMPLE STATE V. CHRISTEN, 190 N.E. 233; REESE V. INDUSTRIAL COMMISSION OF OHIO, 8 N.E. (2D) 567; MCSHERRY V. CITY OF ST. PAUL, MINN., 277 N.W. 541, 545.)

IT IS THEREFORE THE CONSIDERED VIEW OF THE NAVY DEPARTMENT THAT THE RIGHT TO HOLIDAY PAY UNDER PUBLIC RESOLUTION NO. 127 SHOULD NOT DEPEND ON LENGTH OF SERVICE BUT RATHER ON WHETHER THE EMPLOYEE WAS DULY APPOINTED ACCORDING TO A GENERAL POLICY OF THE DEPARTMENT FOR WORK IN CONNECTION WITH ONE OF THE OFFICIAL ACTIVITIES OF THE DEPARTMENT, AND THAT THE INTENT OF CONGRESS WOULD BE MORE NEARLY CARRIED OUT SHOULD THE TERM "REGULAR EMPLOYEE" AS USED IN SAID RESOLUTION BE CONSTRUED TO MEAN ANY PER DIEM EMPLOYEE IN A PAY STATUS WHO IS REQUIRED TO WORK FROM DAY TO DAY REGARDLESS OF THE EXACT TERMS OF HIS APPOINTMENT, AND WHO BECAUSE HE IS REQUIRED TO WORK FROM DAY TO DAY IS THUS DEPRIVED OF THE OPPORTUNITY OF ACCEPTING EMPLOYMENT ELSEWHERE.

SINCE ALL EMPLOYEES OF THE GOVERNMENT NECESSARILY MUST BE "DULY APPOINTED," IT IS OBVIOUS THAT THE ADOPTION OF THE ABOVE SUGGESTION WOULD BE TANTAMOUNT TO READING OUT OF THE STATUTE THE WORD ,REGULAR," AND WOULD RESULT IN CONSTRUING THE ACT AS APPLICABLE TO ALL EMPLOYEES PAID ON A PER DIEM, PER HOUR, OR PIECE-WORK BASIS. HOWEVER, NO REASONABLE BASIS APPEARS UPON WHICH IT MAY BE HELD THAT THE WORD "REGULAR" IS MERE SURPLUSAGE AND IS TO BE DISREGARDED IN CONSTRUING THE SAID STATUTE. IN FACT, ANY SUCH VIEW OF THE MATTER IS CONTRARY TO ONE OF THE SETTLED CANONS OF STATUTORY CONSTRUCTION, NAMELY, THAT, IF POSSIBLE, EFFECT IS TO BE GIVEN EVERY WORD IN A STATUTE. IT WOULD HAVE BEEN A SIMPLE MATTER FOR THE CONGRESS TO HAVE OMITTED THE TERM "REGULAR" FROM THE STATUTE HAD IT INTENDED TO EXTEND THE BENEFITS THEREOF TO ALL EMPLOYEES OF THE CLASSES MENTIONED. AND WHERE IT HAS BEEN THE LEGISLATIVE INTENT TO INCLUDE ALL EMPLOYEES OF A PARTICULAR CLASS, THE CONGRESS EITHER HAS USED SUCH ALL-INCLUSIVE PHRASES AS "ANY" OR "ALL" OR HAS OMITTED SUCH MODIFYING WORDS ENTIRELY. HENCE, TO CONSTRUE THE 1938 STATUTE AS INCLUDING ANY OR ALL OF THE EMPLOYEES MENTIONED--- IN THE ABSENCE OF A CLEAR MANIFESTATION OF SUCH INTENT ON THE PART OF THE CONGRESS--- WOULD BE TANTAMOUNT TO ENLARGING THE STATUTE BY CONSTRUCTION, WHICH MAY NOT BE DONE.

THE VIEWS EXPRESSED IN YOUR LETTER RESPECTING THE ABOVE MATTER HAVE BEEN GIVEN CAREFUL ATTENTION BUT, FOR THE REASONS STATED, ADOPTION THEREOF IN LIEU OF THE SETTLED PRACTICE OF THIS OFFICE DOES NOT APPEAR WARRANTED.

WHILE NOT SPECIFICALLY MENTIONED IN YOUR LETTER, IT APPEARS THAT, ASIDE FROM THE MATTERS DISCUSSED ABOVE, THE SAID DECISION OF NOVEMBER 15, 1945, HAS BEEN VIEWED AS DENYING THE BENEFITS OF THE HOLIDAY-PAY STATUTE TO ALL WAR-SERVICE APPOINTEES COMING WITHIN THE PURVIEW THEREOF UNLESS AND UNTIL THEY SHALL HAVE SERVED AT LEAST ONE YEAR. HOWEVER, SUCH WAS NOT THE INTENDED SCOPE OF THAT DECISION. IN THAT CONNECTION, IT MAY BE STATED THAT WITH RESPECT TO THE VARIOUS TYPES OF WAR-SERVICE APPOINTMENTS, CIVIL SERVICE COMMISSION REGULATIONS IN FORCE AT THE TIME THE DECISION WAS RENDERED, PROVIDED AS FOLLOWS (PAGES 44 AND 45 OF THE CIVIL SERVICE COMMISSION ACT, RULES, REGULATIONS)

TYPES OF APPOINTMENT.--- ON AND AFTER MARCH 16, 1942, ALL ORIGINAL APPOINTMENTS TO POSITIONS UNDER THE JURISDICTION OF THE WAR-SERVICE REGULATIONS WILL BE TERMED "WAR-SERVICE APPOINTMENTS" AND MADE UNDER REGULATION V. * * *

UNLESS OTHERWISE SPECIFICALLY LIMITED, SUCH APPOINTMENTS MAY BE MADE FOR THE DURATION OF THE WAR AND FOR SIX MONTHS THEREAFTER. THOSE APPOINTMENTS WHICH ARE FOR PERIODS SPECIFICALLY LIMITED TO ONE YEAR OR LESS WILL BE CONSIDERED "TEMPORARY.' APPOINTMENTS WHICH ARE FOR A LONGER DURATION THAN ONE YEAR WILL UNLESS OTHERWISE SPECIFICALLY LIMITED BE DESIGNATED AS "INDEFINITE" (DEPARTMENTAL CIRCULAR NO. 323, REVISED, MARCH 30, 1942, AND SUPPLEMENT 6 THERETO, SEPTEMBER 9, 1945; DEPARTMENTAL CIRCULAR NO. 536, AUGUST 16, 1945; ACTION OF COMMISSION, FEBRUARY 15, 1944.) THE FOREGOING STATEMENTS WERE VIEWED AS REASONABLY CONTEMPLATING THREE DISTINCT CLASSES OR TYPES OF WAR-SERVICE APPOINTMENTS, THAT IS, (1) APPOINTMENTS FOR THE DURATION OF THE WAR AND FOR 6 MONTHS THEREAFTER; (2) APPOINTMENTS SPECIFICALLY LIMITED TO ONE YEAR OR LESS; AND (3) APPOINTMENTS FOR INDEFINITE PERIODS--- SUCH AS APPOINTMENTS ON A "WHEN ACTUALLY EMPLOYED" BASIS--- BUT NOT NECESSARILY EXTENDING FOR THE DURATION OF THE WAR AND FOR 6 MONTHS THEREAFTER. IT WAS WITH RESPECT TO THE LATTER CLASS OF EMPLOYEES THAT THE DECISION WAS DIRECTED--- THE INFORMATION THEN BEFORE THIS OFFICE INDICATING THAT SUCH WAS THE CHARACTERIZATION OF THE WAR-SERVICE APPOINTMENTS THERE INVOLVED. COMPARE 19 COMP. GEN. 426. HOWEVER, THE UNITED STATES CIVIL SERVICE COMMISSION HAS ADVISED THIS OFFICE THAT THE QUOTED PORTION OF ITS REGULATIONS WAS INTENDED AS RECOGNIZING ONLY TWO CATEGORIES OF WAR SERVICE APPOINTMENTS, THAT IS, (1) "INDEFINITE" APPOINTMENTS EXTENDING FOR THE DURATION OF THE WAR AND 6 MONTHS THEREAFTER, AND (2) "TEMPORARY" APPOINTMENTS WHICH CARRY A DEFINITE TIME LIMITATION OF 1 YEAR OR LESS. UNDER THE TWO CATEGORIES OF WAR-SERVICE APPOINTMENTS AS THUS DEFINED IT APPEARS THAT THERE ARE NO WAR-SERVICE APPOINTEES WHO FALL WITHIN THE DEFINITION OF "INDEFINITE" EMPLOYEES AS THAT TERM WAS USED IN THE SAID DECISION OF NOVEMBER 15, 1945. THAT IS TO SAY,"INDEFINITE" WAR-SERVICE APPOINTEES, ALTHOUGH PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS, ARE APPOINTED "FOR THE DURATION OF THE WAR AND FOR SIX MONTHS THEREAFTER.' CONSEQUENTLY, SINCE PERSONS HOLDING "INDEFINITE WAR- SERVICE APPOINTMENTS" AS DEFINED BY THE CIVIL SE COMMISSION ARE, IN CT,"PERMANENT" EMPLOYEES WITHIN THE MEANING OF ANNUAL AND SICK LEAVE REGULATIONS, IT FOLLOWS THAT THEY ARE ENTITLED TO THE BENEFITS OF THE HOLIDAY-PAY STATUTE OF 1938, REGARDLESS OF THE PERIOD OF THEIR ACTUAL SERVICE. THE DECISION OF NOVEMBER 15, 1945, IS AMPLIFIED ACCORDINGLY.