A-97193, AUGUST 19, 1938, 18 COMP. GEN. 186

A-97193, AUGUST 19, 1938, 18 COMP. GEN. 186

HOLIDAY COMPENSATION - PER DIEM, ETC., EMPLOYEES - PUBLIC RESOLUTION NO. 127 - PERFORMANCE OR NONPERFORMANCE OF WORK AND HOLIDAYS WITHIN LEAVES OF ABSENCE, FORTY-HOUR WORK WEEK, ETC. IN VIEW OF PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938, 52 STAT. 1246, REGULAR PER DIEM, PER HOUR, AND PIECE-WORK EMPLOYEES ARE ENTITLED ONLY TO THEIR REGULAR PAY, AND NOT ADDITIONAL GRATUITY HOLIDAY PAY, FOR HOLIDAYS ON WHICH NO WORK IS PERFORMED, AND THEN ONLY IF AND WHEN THEY ,ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF" THE HOLIDAY, AND, THEREFORE, THEY ARE NOT ENTITLED TO PAY FOR THE HOLIDAY AS SUCH IF THEY ARE RELIEVED OR PREVENTED FROM WORKING BECAUSE THE HOLIDAY OCCURS ON A FIVE-DAY WEEK NON-WORK DAY, OR WITHIN A PERIOD OF FURLOUGH OR LEAVE OF ABSENCE, OR TO ADDITIONAL HOLIDAY GRATUITY PAY IF REQUIRED TO WORK ON A HOLIDAY WHETHER THE HOLIDAY OCCURS WITHIN OR WITHOUT THEIR REGULAR TOUR OF DUTY, BUT FOR WORK ON THE HOLIDAY OCCURRING OUTSIDE THE REGULAR TOUR OF DUTY OVERTIME PAY UNDER ADMINISTRATIVE REGULATIONS AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THEIR REGULAR PAY IS PAYABLE UNDER SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, PROVIDED 40 HOURS' WORK HAS ALREADY BEEN PERFORMED DURING THAT WEEK.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, AUGUST 19, 1938:

YOUR LETTER OF AUGUST 9, 1938, IS AS FOLLOWS:

PRIOR TO JUNE 29, 1938, HOLIDAYS WERE ALLOWED EMPLOYEES OF THE GOVERNMENT PAID ON A PER DIEM BASIS, OR AT HOURLY RATES, UNDER THE FOLLOWING QUOTED PROVISION OF LAW (U.S.C., TITLE 5, SEC. 86):

"THE EMPLOYEES OF THE NAVY YARD, GOVERNMENT PRINTING OFFICE, BUREAU OF PRINTING AND ENGRAVING, AND ALL OTHER PER DIEM EMPLOYEES OF THE GOVERNMENT ON DUTY AT WASHINGTON OR ELSEWHERE IN THE UNITED STATES SHALL BE ALLOWED THE FOLLOWING HOLIDAYS, TO WIT: THE 1ST DAY OF JANUARY, THE 22ND DAY OF FEBRUARY, THE DAY OF EACH YEAR WHICH IS CELEBRATED AS "MEMORIAL" OR "DECORATION" DAY, THE 4TH DAY OF JULY, THE 25TH DAY OF DECEMBER, AND SUCH DAYS AS MAY BE DESIGNATED BY THE PRESIDENT AS DAYS FOR NATIONAL THANKSGIVING, AND SHALL RECEIVE THE SAME PAY AS ON OTHER DAYS. (JANUARY 6, 1885, NO. 5, 23 STAT. 516; FEBRUARY 23, 1887, NO. 6, 24 STAT. 644).'

THE LANGUAGE OF PUBLIC RESOLUTION NO. 127, 75TH CONGRESS, APPROVED JUNE 29, 1938, IS AS OLLOWS:

"RESOLVED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, 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.'

THIS OFFICE HAS COMPARED THE LANGUAGE OF THE RESOLUTION QUOTED IN THE PRECEDING PARAGRAPH WITH THE LANGUAGE OF THE ACT OF JANUARY 6, 1885, AND OF THE ACT OF FEBRUARY 23, 1887, TO DETERMINE WHETHER ANY CHANGE IN THE PRACTICE OF THE ENGINEER DEPARTMENT WITH RESPECT OT THE ALLOWANCE OF NATIONAL HOLIDAYS TO PER DIEM EMPLOYEES, OR EMPLOYEES PAID AT HOURLY RATES, IS REQUIRED. IT IS NOTED THAT WHILE THE ACT OF JANUARY 6, 1885, AND THAT OF FEBRUARY 23, 1887, DIRECTED THAT HOLIDAYS NAMED THEREIN BE GRANTED PER DIEM EMPLOYEES AND DIRECTED THAT THEY RECEIVE THE SAME PAY FOR SUCH HOLIDAYS AS ON OTHER DAYS, THE RESOLUTION NO. 127, 75TH CONGRESS, PROVIDES MERELY THAT IN THE EVENT THE EMPLOYEES OF THE CLASS UNDER DISCUSSION ARE RELIEVED OR PREVENTED FROM WORKING ON ONE OF THE DAYS REFERRED TO IN THE LEGISLATION SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY ON THAT DAY, THEY SHALL RECEIVE THE SAME PAY AS FOR OTHER DAYS. THE DIFFERENCE IS CONSIDERED SIGNIFICANT FOR THE REASON THAT THE PHRASING OF THE ACT OF JANUARY 6, 1885, AND OF THE OTHER LEGISLATION REFERRED TO ABOVE, HAS BEEN UNDERSTOOD AS REQUIRING THAT ALL PER DIEM EMPLOYEES MUST BE ALLOWED THE HOLIDAYS ENUMERATED IN THE LEGISLATION AND THAT THEY RECEIVE ONE DAY'S PAY FOR EACH SUCH HOLIDAY. IT HAS BEEN UNDERSTOOD FURTHER THAT IN THE EVENT EMERGENCY HAS REQUIRED THAT ANY SUCH EMPLOYEE RENDER ACTUAL SERVICE ON THE HOLIDAY, THE EMPLOYEE SHALL RECEIVE AN ADDITIONAL DAY'S PAY FOR SUCH WORK, OR TWO DAYS' PAY FOR THE HOLIDAY. THIS UNDERSTANDING IS IN ACCORDANCE WITH DECISION OF THE COMPTROLLER OF THE TREASURY DATED OCTOBER 16, 1913, XX C.D., 219, AND OTHER DECISIONS.

IT APPEARS POSSIBLE THAT UNDER THE LANGUAGE OF PUBLIC RESOLUTION NO. 127, 75TH CONGRESS, PER DIEM EMPLOYEES, OR EMPLOYEES PAID ON AN HOURLY OR PIECE WORK BASIS, MAY RECEIVE ONLY ONE DAY'S PAY FOR A HOLIDAY, WHETHER OR NOT THEY ACTUALLY RENDER SERVICE ON THAT DAY. A RULING IS REQUESTED AS TO WHETHER THIS INTERPRETATION IS CORRECT, OR WHETHER THE DEPARTMENT MAY CONTINUE THE PRACTICE IN FORCE IN THE PAST OF GRANTING TWO DAYS' PAY TO PER DIEM OR HOURLY EMPLOYEES WHO PERFORM ACTUAL WORK ON THE HOLIDAYS REFERRED TO IN PUBLIC RESOLUTION NO. 127 IN 75TH CONGRESS.

IT IS REQUESTED ALSO THAT RULING BE GIVEN ON THE FOLLOWING POINTS:

(A) IN THE EVENT A PER DIEM OR HOURLY EMPLOYEE OR EMPLOYEE SERVING ON A PIECE-WORK BASIS IS ABSENT ON LEAVE WITHOUT PAY, MAY HE BE PAID A DAY'S PAY FOR A HOLIDAY OCCURRING WITHIN SUCH PERIOD OF LEAVE WITHOUT PAY?

(B) A PER DIEM EMPLOYEE WORKS FROM MONDAY TO FRIDAY ON A FIVE-DAY WEEK. SATURDAY IS ONE OF THE NATIONAL HOLIDAYS REFERRED TO IN PUBLIC RESOLUTION NO. 127, 75TH CONGRESS. IS THE EMPLOYEE ENTITLED TO PAY FOR THE HOLIDAY EVEN THOUGH HE DOES NOT WORK ON THAT DAY?

(C) IN THE CASE OF THE EMPLOYEE REFERRED TO IN (B) ABOVE, WOULD HE BE ENTITLED TO PAY IN THE EVENT HE WORKED ON THE SATURDAY MENTIONED AND IF SO WOULD HE BE ENTITLED TO ONE DAY'S PAY OR TWO DAYS' PAY?

IN DECISION OF JULY 6, 1938, A-94536, 18 COMP. GEN. 10, AFTER QUOTING SAID PUBLIC RESOLUTION, IT WAS STATED AS FOLLOWS:

YOU WILL NOTE THAT THIS STATUTE REPEALS THE ACT OF JANUARY 6, 1885, CITED BY YOU, WHICH GRANTED GRATUITY PAY FOR HOLIDAYS. HENCE, "GRATUITY PAY FOR HOLIDAYS" IS NO LONGER "A VESTED RIGHT OF PER DIEM EMPLOYEES.' SUCH EMPLOYEES ARE NOW ENTITLED TO PAY FOR HOLIDAYS ONLY UNDER AND SUBJECT TO THE CONDITIONS OF THE JOINT RESOLUTION OF JUNE 29, 1938. * * *

HENCE REGULAR PER DIEM, PER HOUR, AND PIECE-WORK EMPLOYEES ARE ENTITLED TO THEIR REGULAR PAY FOR HOLIDAYS ON WHICH NO WORK IS PERFORMED ONLY IF AND WHEN THEY "ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF" THE HOLIDAY. IF THEY ARE RELIEVED OR PREVENTED FROM WORKING ON THE HOLIDAY FOR ANY REASON OTHER THAN THE OCCURRENCE OF THE HOLIDAY, SUCH AS WHEN THE HOLIDAY OCCURS ON A NON-WORK DAY, OR WITHIN A PERIOD OF FURLOUGH OR LEAVE OF ABSENCE, NO PAY FOR THE HOLIDAY AS SUCH IS AUTHORIZED. IF SUCH EMPLOYEES ARE REQUIRED TO WORK ON A HOLIDAY OCCURRING WITHIN THEIR REGULAR TOUR OF DUTY, ONLY 1 DAY'S PAY IS AUTHORIZED--- PAYMENT OF GRATUITY HOLIDAY PAY IN ADDITION BEING NO LONGER AUTHORIZED. IF THE HOLIDAY OCCURS ON A DAY OUTSIDE THE REGULAR TOUR OF DUTY OF 40 HOURS PER WEEK AND WORK IS REQUIRED ON THE HOLIDAY, THE EMPLOYEE IS NOT ENTITLED TO 2 DAYS' PAY, ONE FOR WORKING AND ONE FOR THE HOLIDAY, BUT MAY BE ENTITLED TO OVERTIME PAY FOR THE DAY UNDER ADMINISTRATIVE REGULATIONS AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THEIR REGULAR PAY. (SEE THE 40 HOUR WEEK STATUTE, SEC. 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522.)

QUESTIONS (A) AND (B) ARE ANSWERED IN THE NEGATIVE. QUESTION (C) HAS BEEN ANSWERED ABOVE, THAT IS, THE EMPLOYEE WOULD BE ENTITLED TO OVERTIME PAY FOR THE HOLIDAY IF 40 HOURS WORK HAD ALREADY BEEN PERFORMED DURING THE WEEK BUT HE WOULD NOT BE ENTITLED TO ANY ADDITIONAL PAY BECAUSE OF THE HOLIDAY.