A-60981, MAY 10, 1935, 14 COMP. GEN. 818

A-60981, MAY 10, 1935, 14 COMP. GEN. 818

SUNDAY AND HOLIDAY COMPENSATION - LEAVE OF ABSENCE - 8-HOUR LAW - PER DIEM EMPLOYEES, DEPARTMENT OF AGRICULTURE PER DIEM EMPLOYEES WITHIN THE MEANING OF THE HOLIDAY STATUTES INCLUDE ONLY THOSE EMPLOYEES WHOSE COMPENSATION IS AUTHORIZED OR REQUIRED BY LAW, OR REGULATION ISSUED PURSUANT TO LAW, TO BE MEASURED BY THE DAY--- NOT EMPLOYEES WHOSE COMPENSATION IS AUTHORIZED OR REQUIRED TO BE MEASURED OTHER THAN BY THE DAY BUT WHO ARE PAID ON A DAILY BASIS FOR ADMINISTRATIVE CONVENIENCE OR FOR ANY OTHER REASON. FARM HANDS OR THOSE ENGAGED IN AGRICULTURAL PURSUITS UNDER THE DEPARTMENT OF AGRICULTURE ARE NOT PROPERLY CLASSED AS "PER DIEM EMPLOYEES" WITHIN THE MEANING OF THE HOLIDAY STATUTES, EVEN THOUGH THEIR COMPENSATION MAY BE MEASURED BY THE DAY. AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE ON A PERMANENT BASIS WHOSE MEASURE OF COMPENSATION IS AUTHORIZED BY LAW TO BE A PER DIEM RATE WHEN ACTUALLY EMPLOYED, MAY BE GRANTED ANNUAL AND SICK LEAVE AND IS ENTITLED TO GRATUITY COMPENSATION FOR STATUTORY HOLIDAYS ON WHICH NO WORK IS PERFORMED AND TO DOUBLE COMPENSATION WHEN WORKING ON STATUTORY HOLIDAYS, BUT ONLY TO REGULAR COMPENSATION WHEN WORKING ON SUNDAY. A TEMPORARY PER DIEM EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE APPOINTED ON A WHEN-ACTUALLY-EMPLOYED BASIS IS ENTITLED ONLY TO REGULAR COMPENSATION FOR WORK ON A SUNDAY OR STATUTORY HOLIDAY AND MAY NOT BE GRANTED LEAVE OF ABSENCE WITH PAY. THE 8-HOUR LAW AS AMENDED BY THE ACT OF MAY 3, 1913 (37 STAT. 726), WAS ENACTED WITH RELATION TO FEDERAL PERSONNEL HOLDING POSITIONS COMPARABLE TO THOSE IN PRIVATE INDUSTRY IN WHICH THE HOURS OF LABOR ARE CONTROLLED BY LAW OR PRACTICE AND DOES NOT RELATE TO FARM HANDS OR THOSE ENGAGED IN AGRICULTURAL PURSUITS WHOSE HOURS AND DAYS OF LABOR MUST NECESSARILY BE CONTROLLED BY THE WEATHER, THE SEASONS, AND OTHER CONSIDERATIONS NOT SUBJECT TO ADMINISTRATIVE CONTROL.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, MAY 10, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 21, 1935, AS FOLLOWS:

IN CARRYING OUT THE AUTHORIZED ACTIVITIES OF THIS DEPARTMENT IN ITS FIELD SERVICES, PARTICULARLY ON ITS FARMS, SEVERAL QUESTIONS HAVE BEEN RAISED WITH REGARD TO HOLIDAY, OVERTIME, ANNUAL, AND SICK LEAVE STATUS OF VARIOUS PER DIEM EMPLOYEES.

IN YOUR DECISION TO THE SECRETARY OF THE INTERIOR (5 C.G. 312) YOU HELD THAT:

"IT WAS CORRECTLY STATED IN 3 COMP. GEN. 411 THAT SAID ACT REFERS TO EMPLOYEES PAID ON A PER DIEM BASIS EMPLOYED PERMANENTLY AS DISTINGUISHED FROM EMPLOYMENT FROM DAY TO DAY OR FOR BRIEF, INDEFINITE PERIODS. THE REQUIREMENT THAT THEY BE "EMPLOYED PERMANENTLY" DOES NOT MEAN THAT THEY MUST BE EMPLOYED UNDER SUCH A CONTRACT OR AGREEMENT THAT THEY WOULD BE ENTITLED TO PAY WITHOUT WORKING FOR ALL SUNDAYS OR HOLIDAYS, IRRESPECTIVE OF THE ACTS ABOVE CITED, BUT ONLY THAT THEIR EMPLOYMENT MUST BE SUBSTANTIALLY CONTINUOUS FOR AN INDEFINITE PERIOD, PAYMENT BEING MADE ON A PER DIEM BASIS FOR THE DAYS ACTUALLY WORKING. IF ENTITLED TO PAYMENT FOR ALL SUNDAYS AND HOLIDAYS WHETHER WORKING OR NOT, THEY WOULD BE IN FACT ANNUAL EMPLOYEES, NOTWITHSTANDING THEIR SALARY MIGHT BE STATED ON A PER DIEM BASIS, AND THEY WOULD NOT BE ENTITLED TO DOUBLE PAY WHEN REQUIRED TO WORK ON HOLIDAYS.'

THE DEPARTMENT HAS BOTH TYPES OF PER DIEM EMPLOYEES REFERRED TO IN THE ABOVE DECISION, THAT IS TO SAY, THOSE WHO BECAUSE OF THEIR CONTINUOUS EMPLOYMENT MAY BE DESIGNATED AS "PERMANENT" EMPLOYEES AND THOSE WHO BECAUSE OF THEIR OCCASIONAL EMPLOYMENT MAY BE TERMED "TEMPORARY" EMPLOYEES. WITH THIS DISTINCTION IN MIND YOUR DECISION IS REQUESTED ON THE THREE FOLLOWING QUESTIONS:

(1) IF AN EMPLOYEE IS ON A PERMANENT BASIS, EMPLOYED UNDER CIVIL SERVICE RULES, BUT HIS MEASURE OF PAY IS ON A PER DIEM RATE WHEN ACTUALLY EMPLOYED, RATHER THAN A PER ANNUM RATE, IS HE ENTITLED TO ANNUAL AND SICK LEAVE, PAY FOR HOLIDAYS AND PAY FOR SUNDAYS, AND DOUBLE PAY WHEN WORKING ON SUNDAYS OR HOLIDAYS?

(2) IF A TEMPORARY PER DIEM EMPLOYEE APPOINTED ON A WHEN-ACTUALLY EMPLOYED BASIS WORKS ON A SUNDAY OR LEGAL HOLIDAY, DOES HE RECEIVE REGULAR PAY OR DOUBLE PAY FOR SERVICES RENDERED? SUCH AS LABORERS AND MECHANICS, PAID AT A PER DIEM RATE, OVER 8 HOURS IN ANY ONE DAY, OR ARE THEY TO BE TREATED ON THE SAME BASIS AS AN ANNUAL EMPLOYEE, IN THAT THE SECRETARY MAY REQUIRE THEM TO WORK MORE THAN 8 HOURS IN ANY ONE DAY?

IN THIS CONNECTION THE FOLLOWING REGULATIONS OF THIS DEPARTMENT WOULD SEEM TO BE RELEVANT TO THE QUESTIONS ABOVE SUBMITTED AND MAY HAVE SOME BEARING UPON YOUR DECISION.

PARAGRAPH 19 OF THE FISCAL REGULATIONS OF THIS DEPARTMENT RELATIVE TO SUNDAY AND HOLIDAY PAY FOR PER-DIEM EMPLOYEES PROVIDES AS FOLLOWS:

"A PER DIEM EMPLOYEE CANNOT BE PAID FOR SUNDAY UNLESS HE WORKS ON THAT DAY. THE SERVICE SHOULD BE NOTED ON THE PAY ROLL. PERMANENT PER-DIEM EMPLOYEES MAY RECEIVE PAY FOR WITHOUT WORKING ON THE FOLLOWING STATUTORY HOLIDAYS--- JANUARY 1, FEBRUARY 22, MAY 30, JULY 4, LABOR DAY, THANKSGIVING, AND CHRISTMAS. FOR A HOLIDAY OCCURRING WITHIN A PERIOD OF LEAVE WITHOUT PAY OF 30 DAYS OR MORE, NO PAYMENT IS AUTHORIZED. WHERE THE DATE OF A HOLIDAY FALLS ON A SUNDAY, THE HOLIDAY WILL BE AS DESIGNATED BY AUTHORITY OF LAW. IF WORK IS PERFORMED ON ONE OF THE HOLIDAYS, ABOVE ENUMERATED BY A PER-DIEM EMPLOYEE ENTITLED TO THE HOLIDAY WITH PAY, DOUBLE PAY ACCRUES. THE PAY ROLL SHOULD IN SUCH CASES SHOW AFFIRMATIVELY THE PERFORMANCE OF WORK.'

PARAGRAPH 488 OF THE ADMINISTRATIVE REGULATIONS OF THE DEPARTMENT PROVIDES:

"TEMPORARY PER-DIEM EMPLOYEES SHALL NOT BE GRANTED LEAVE WITH PAY. HOWEVER, IF THE PER-DIEM RATE IS SIMPLY A MEASURE OF SALARY AND SUCH EMPLOYEES ARE REGULARLY AND CONTINUOUSLY EMPLOYED WITHOUT LIMITATION, THEY ARE ENTITLED TO LEAVE THE SAME AS EMPLOYEES WHOSE SALARIES ARE ON AN ANNUAL OR MONTHLY BASIS.'

PARAGRAPH 419 OF THE ADMINISTRATIVE REGULATIONS PROVIDES, IN PART, AS FOLLOWS:

"ALL PER DIEM APPOINTMENTS SHALL BE MADE FOR DAYS ACTUALLY EMPLOYED.'

ALL OF THESE EMPLOYEES ARE APPOINTED BY AUTHORITY OF THE CIVIL SERVICE RULES AND REGULATIONS.

THE ACTS OF JANUARY 6, 1885 (23 STAT. 516); FEBRUARY 23, 1887 (24 STAT. 644); AND JUNE 28, 1894 (28 STAT. 96), PROVIDE, RESPECTIVELY, AS FOLLOWS:

THAT 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 FIRST DAY OF JANUARY, THE TWENTY-SECOND DAY OF FEBRUARY, THE FOURTH DAY OF JULY, THE TWENTY-FIFTH 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.

THAT ALL PER DIEM EMPLOYEES OF THE GOVERNMENT, ON DUTY AT WASHINGTON OR ELSEWHERE IN THE UNITED STATES, SHALL BE ALLOWED THE DAY OF EACH YEAR WHICH IS CELEBRATED AS "MEMORIAL" OR "DECORATION AY" AND THE FOURTH OF JULY OF EACH YEAR, AS HOLIDAY, AND SHALL RECEIVE THE SAME PAY AS ON OTHER DAYS.

THAT THE FIRST MONDAY OF SEPTEMBER IN EACH YEAR, BEING THE DAY CELEBRATED AND KNOWN AS "LABOR'S HOLIDAY," IS HEREBY MADE A LEGAL PUBLIC HOLIDAY, TO ALL INTENTS AND PURPOSES IN THE SAME MANNER AS CHRISTMAS, THE FIRST DAY OF JANUARY, THE TWENTY-SECOND DAY OF FEBRUARY, THE THIRTIETH DAY OF MAY, AND THE FOURTH DAY OF JULY ARE NOW MADE BY LAW PUBLIC HOLIDAYS.

THERE MAY HAVE BEEN A MISCONCEPTION AS TO THE MEANING OF THE PHRASE "ALL OTHER PER DIEM EMPLOYEES" APPEARING IN THE FIRST-MENTIONED STATUTE AND TO WHICH THE REMAINING STATUTES REFER. THE USE OF THE WORD "OTHER" JUSTIFIES APPLICATION OF THE WELL-KNOWN EJUSDEM GENERIS RULE WHEREBY THE GENERAL TERM OR DESCRIPTION "PER DIEM" EMPLOYEES OF THE GOVERNMENT SHOULD BE UNDERSTOOD TO INCLUDE GENERALLY THOSE HAVING DUTIES SIMILAR IN NATURE AND KIND TO THOSE SPECIFICALLY ENUMERATED IN THE STATUTE, VIZ., "EMPLOYEES OF THE NAVY YARD, GOVERNMENT PRINTING OFFICE, BUREAU OF PRINTING AND ENGRAVING" PAID ON A PER DIEM BASIS; THAT IS, PRIMARILY THOSE EMPLOYEES WHO ARE IN A RECOGNIZED TRADE OR CRAFT OR SIMILAR OCCUPATION (14 COMP. GEN. 388). FURTHERMORE, PER DIEM EMPLOYEES WITHIN THE MEANING OF THE HOLIDAY STATUTES, SUPRA, INCLUDE ONLY THOSE EMPLOYEES WHOSE COMPENSATION IS AUTHORIZED OR REQUIRED BY LAW, OR REGULATION ISSUED PURSUANT TO LAW, TO BE MEASURED BY THE DAY--- NOT EMPLOYEES WHOSE COMPENSATION IS AUTHORIZED OR REQUIRED TO BE MEASURED OTHER THAN BY THE DAY, BUT WHO ARE PAID ON A DAILY BASIS FOR ADMINISTRATIVE CONVENIENCE OR FOR ANY OTHER REASON. ADMINISTRATIVE OFFICE MAY NOT, MERELY BY MEASURING EMPLOYEES' COMPENSATION BY THE DAY, BRING THEM WITHIN THE TERMS OF THE HOLIDAY STATUTES.

REGULAR FIELD POSITIONS UNDER THE DEPARTMENT OF AGRICULTURE ARE REQUIRED TO BE ADMINISTRATIVELY CLASSIFIED UNDER THE TERMS OF THE CLASSIFICATION ACT AS AMENDED. EMERGENCY FIELD POSITIONS ARE REQUIRED TO BE CLASSIFIED PURSUANT EITHER TO THE CLASSIFICATION ACT AS AMENDED OR EXECUTIVE ORDER. THERE ARE EXCEPTED FROM THE REQUIREMENT FOR CLASSIFICATION ONLY SUCH REGULAR OR EMERGENCY POSITIONS AS MAY BE EXEMPTED BY THE SPECIFIC TERMS OF THE CLASSIFICATION ACT, OR OTHER STATUTE, OR THE EXECUTIVE ORDER. SALARY RATES FOR ALL CLASSIFIED FIELD POSITIONS (EXCEPT THE CLERICAL-MECHANICAL SERVICE, NOT HERE INVOLVED) ARE PRESCRIBED ON AN ANNUAL BASIS. EMPLOYEE OCCUPYING A POSITION REQUIRING CLASSIFICATION IS TO BE REGARDED AS A "PER DIEM" EMPLOYEE WITHIN THE MEANING OF THE HOLIDAY STATUTES, EVEN THOUGH COMPENSATION MAY BE PAID ON A DAILY BASIS AS WAS AUTHORIZED IN DECISION OF JANUARY 8, 1935 (14 COMP. GEN. 523).

SECTION 5 OF THE ORIGINAL CLASSIFICATION ACT, DATED MARCH 4, 1923, 42 STAT. 1490, EXEMPTS FROM CLASSIFICATION---

POSITIONS THE DUTIES OF WHICH ARE TO PERFORM OR ASSIST IN APPRENTICE, HELPER, OR JOURNEYMAN WORK IN A RECOGNIZED TRADE OR CRAFT AND SKILLED AND SEMI-SKILLED LABORERS, EXCEPT SUCH AS ARE UNDER THE DIRECTION AND CONTROL OF THE CUSTODIAN OF A PUBLIC BUILDING OR PERFORM WORK WHICH IS SUBORDINATE, INCIDENTAL, OR PREPARATORY TO WORK OF A PROFESSIONAL SCIENTIFIC, OR TECHNICAL CHARACTER. * * *

ACCORDINGLY, BONA FIDE PER DIEM EMPLOYEES IN THE FIELD SERVICE OF THE DEPARTMENT OF AGRICULTURE ENTITLED TO THE STATUTORY HOLIDAY PAY WOULD INCLUDE THOSE WHO ARE AUTHORIZED OR REQUIRED TO BE PAID ON A PER DIEM BASIS AND WHOSE POSITIONS ARE OF A CLASS TO BRING THEM WITHIN THE QUOTED EXEMPTION FROM CLASSIFICATION, EMPLOYED ON A PERMANENT BASIS AS DISTINGUISHED FROM THOSE EMPLOYED FROM DAY TO DAY OR FOR DEFINITELY FIXED BRIEF PERIODS. IN THE ABSENCE OF FACTS, IT IS IMPOSSIBLE TO CONSIDER ALL CLASSES OF FIELD POSITIONS UNDER THE DEPARTMENT OF AGRICULTURE, BUT BASED ON THE ABOVE IT WOULD APPEAR THAT FARM HANDS, OR THOSE ENGAGED IN AGRICULTURAL PURSUITS, WOULD NOT PROPERLY BE CLASSED AS "PER DIEM EMPLOYEES" WITHIN THE MEANING OF THE HOLIDAY STATUTES.

LIMITED TO BONA FIDE PER DIEM EMPLOYEES, AS ABOVE DEFINED, THE SEVERAL QUESTIONS IN PARAGRAPH NUMBERED (1) OF YOUR LETTER, RELATING TO SUNDAY AND HOLIDAY PAY, MAY BE ANSWERED IN THE AFFIRMATIVE, EXCEPT THAT THERE IS NO PROVISION OF LAW, OR CITED REGULATION APPLICABLE TO THE FIELD EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE, AUTHORIZING DOUBLE COMPENSATION FOR WORK ON SUNDAY. HOWEVER, THE GRANTING OF LEAVE WITH PAY IS NOT NECESSARILY DETERMINED ON THE SAME BASIS AS THE GRANTING OF HOLIDAY PAY. PERMANENT EMPLOYEES MAY BE GRANTED LEAVE WITH PAY, WITHIN ADMINISTRATIVE DISCRETION AND SUBJECT TO STATUTORY LIMITATIONS, REGARDLESS OF THE MEASURE OF TIME ON WHICH COMPENSATION IS PAYABLE OR THE NATURE OF THE EMPLOYMENT, BUT TEMPORARY EMPLOYEES MAY NOT BE GRANTED LEAVE WITH PAY.

THE TEMPORARY PER DIEM EMPLOYEES MENTIONED IN PARAGRAPH NUMBERED (2) WOULD BE ENTITLED ONLY TO THEIR REGULAR RATE OF COMPENSATION FOR WORK ON A SUNDAY OR LEGAL HOLIDAY.

THE 8-HOUR LAW, AS AMENDED BY THE ACT OF MARCH 3, 1913, 37 STAT. 726 (SECTIONS 321 AND 322, TITLE 40, U.S. CODE), PROHIBITS THE EMPLOYMENT OF MECHANICS, LABORERS, AND THOSE IN SIMILAR OCCUPATIONS FOR MORE THAN 8 HOURS ON ANY ONE CALENDAR DAY " "EXCEPT IN CASE OF EXTRAORDINARY EMERGENCY.' IT IS NOT A COMPENSATION STATUTE AND DOES NOT PROVIDE FOR OVERTIME" (13 COMP. GEN. 270). THIS STATUTE IS MANDATORY AND WOULD APPLY TO MECHANICS, LABORERS, AND THOSE IN SIMILAR OCCUPATIONS UNDER THE DEPARTMENT OF AGRICULTURE PROPERLY COMING WITHIN ITS TERMS, INCLUDING THOSE EITHER ON A PERMANENT OR TEMPORARY TENURE AND REGARDLESS OF THE MEASURE OF TIME ON WHICH THEIR COMPENSATION MAY BE BASED. REFERRING TO THE QUESTION IN PARAGRAPH NUMBERED (3), YOU ARE ADVISED THAT THE APPLICATION OF THE 8-HOUR LAW IS NOT DETERMINED ALONE ON THE TENURE OF EMPLOYMENT NOR ON THE MEASURE OF TIME ON WHICH COMPENSATION IS BASED, BUT PRIMARILY ON THE CHARACTER OF THE EMPLOYMENT, THAT IS, WHETHER THE EMPLOYEES ARE MECHANICS OR LABORERS OR ARE REQUIRED TO PERFORM SIMILAR DUTIES. HOWEVER, THE 8-HOUR LAW, SUPRA, WAS ENACTED WITH RELATION TO FEDERAL PERSONNEL HOLDING POSITIONS COMPARABLE TO THOSE IN PRIVATE INDUSTRY IN WHICH THE HOURS OF LABOR ARE CONTROLLED BY LAW OR PRACTICE, AND DOES NOT RELATE TO FARM HANDS OR THOSE ENGAGED IN AGRICULTURAL PURSUITS, WHOSE HOURS AND DAYS OF LABOR MUST NECESSARILY BE CONTROLLED BY THE WEATHER, THE SEASONS, AND OTHER CONSIDERATIONS NOT SUBJECT TO ADMINISTRATIVE CONTROL.

THERE HAS NOT BEEN CONSIDERED IN THIS DECISION WHETHER SECTION 23 OF THE ACT OF MARCH 28, 1934 (48 STAT. 522), ESTABLISHING A 40-HOUR WEEK, IS APPLICABLE TO ANY OF THE EMPLOYEES UNDER THE DEPARTMENT OF AGRICULTURE.