A-82753, APRIL 10, 1937, 16 COMP. GEN. 912

A-82753, APRIL 10, 1937, 16 COMP. GEN. 912

COMPENSATION - PER DIEM EMPLOYEES' LEGAL HOLIDAYS, INCLUDING INAUGURATION DAY APPOINTMENT AS AN UNDER CLERK, GRADE CAF-1, IN A TEMPORARY POSITION WITH THE SOCIAL SECURITY BOARD ON A "WHEN ACTUALLY EMPLOYED" AND PER DIEM COMPENSATION BASIS, DOES NOT CONSTITUTE EMPLOYMENT AS A BONA FIDE PER DIEM EMPLOYEE WITHIN THE MEANING OF THE PAY FOR HOLIDAYS ACTS OF JANUARY 6, 1885, 23 STAT. 516; FEBRUARY 23, 1887, 24 STAT. 644; AND JUNE 28, 1894, 28 STAT. 96, AND SUCH EMPLOYEE IS NOT ENTITLED TO PAY FOR THE NATIONAL HOLIDAYS DECEMBER 25, 1936, JANUARY 1, AND FEBRUARY 22, 1937, ON WHICH DAYS NO WORK WAS PERFORMED, BUT PAYMENT FOR INAUGURATION DAY, JANUARY 20, 1937, IS AUTHORIZED IN VIEW OF THE PROVISIONS OF PUBLIC RESOLUTION NO. 18, APPROVED MARCH 29, 1937, GRANTING HOLIDAY PAY FOR THAT DAY TO ALL EMPLOYEES OF THE FEDERAL AND DISTRICT OF COLUMBIA GOVERNMENTS IN THE DISTRICT OF COLUMBIA WHOSE OFFICES WERE CLOSED BY REASON OF THE HOLIDAY.

ACTING COMPTROLLER GENERAL ELLIOTT TO SAM J. SNEIDERMAN, APRIL 10, 1937:

YOUR LETTER OF MARCH 2, 1937, IS AS FOLLOWS:

YOUR LETTER DATED FEBRUARY 26, 1936, INFORMS ME THAT NO PARTICULAR FORM IS NECESSARY IN FILING A CLAIM FOR ADDITIONAL COMPENSATION THROUGH YOUR OFFICE, AGAINST THE SOCIAL SECURITY BOARD, WHERE I AM NOW EMPLOYED.

I HAVEN-T RECEIVED ANY REMUNERATION FOR THE FOLLOWING HOLIDAYS, DECEMBER 25, 1936; JANUARY 1, 1937; JANUARY 20, 1937; AND FEBRUARY 22, 1937. YOUR PREVIOUS LETTERS LEAD ME TO BELIEVE THAT I-M ENTITLED TO COMPENSATION FOR ALL OF THESE DATES.

I AM EMPLOYED IN THE PRINTING AND DUPLICATING SECTION OF THE BUREAU OF BUSINESS MANAGEMENT OF THE SOCIAL SECURITY BOARD. I-M AN UNDER CLERK, CAF -1, $3.50 PER DIEM WHEN ACTUALLY EMPLOYED; HIRED FOR TEMPORARY INTERMITTENT SERVICE BY THE BOARD, AFTER MY NAME WAS CERTIFIED BY THE CIVIL SERVICE COMMISSION. MY APPOINTMENT MUST NOT EXCEED A THREE MONTH PERIOD OF SERVICE FROM THE DATE I ENTERED ON DUTY.

IN VIEW OF THE FACT THAT I ENTERED ON DUTY ON DECEMBER 21, 1936, AND WORKED STEADY (EACH WORKING DAY WITH THE EXCEPTION OF THE AFOREMENTIONED HOLIDAYS AND SUNDAYS) UNTIL JANUARY 29, 1937, I FEEL THAT NOT ONLY AM I ENTITLED TO PAY FOR THESE HOLIDAYS IN QUESTION BUT ALSO TO A TOTAL OF THREE DAYS AND TWO HOURS ANNUAL LEAVE.

SINCE JANUARY 29, 1937, I HAVE BEEN EMPLOYED ONLY FOUR DAYS OF EACH WEEK OF FEBRUARY, A TOTAL OF SIXTEEN DAYS OF ACTUAL WORK FOR THAT MONTH. THEREFORE, I CLAIM NO ANNUAL LEAVE FOR THIS PARTICULAR PERIOD.

THIS OFFICE IS IN RECEIPT OF A LETTER, DATED MARCH 23, 1937, FROM THE CHAIRMAN, SOCIAL SECURITY BOARD, AS FOLLOWS:

THIS WILL ACKNOWLEDGE RECEIPT OF YOUR LETTER OF MARCH 5, 1937, QUOTING A LETTER FROM SAM JAMES SNEIDERMAN, A FORMER EMPLOYEE OF THE SOCIAL SECURITY BOARD, IN WHICH HE MAKES CLAIM FOR PAYMENT OF SALARY FOR THE NATIONAL HOLIDAYS DECEMBER 25, JANUARY 1, AND FEBRUARY 22, AND FOR INAUGURATION DAY, JANUARY 20.

A COPY OF MR. SNEIDERMAN'S NOTICE OF APPOINTMENT IS ATTACHED HERETO, WHICH SHOWS THAT HE WAS APPOINTED DECEMBER 21, 1936, AS A TEMPORARY UNDER CLERK, NOT TO EXCEED THREE MONTHS. CAF-1, $3.50 PER DIEM, WHEN ACTUALLY EMPLOYED, UNDER SECTION 4, RULE VIII, CIVIL SERVICE RULES. HIS OFFICIAL STATION WAS WASHINGTON, D.C.

MR. SNEIDERMAN PERFORMED DUTY ON EACH WORK DAY FROM DECEMBER 21 TO JANUARY 28, INCLUSIVE. HE ALSO WORKED ON THE FOLLOWING DAYS:

CHART

FEBRUARY 1-4, INCLUSIVE MARCH 1

8-11, INCLUSIVE 3-5, INCLUSIVE

15-18, INCLUSIVE 8-11, INCLUSIVE

23-26, INCLUSIVE 15

16-18, INCLUSIVE

NO ANNUAL OR SICK LEAVE HAS BEEN GRANTED TO MR. SNEIDERMAN. (SEE SEC. 19 (F) OF EXECUTIVE ORDER 7409; SEC. 22 (G) OF EXECUTIVE ORDER 7410.)

THIS TEMPORARY APPOINTMENT WAS TERMINATED BY THE BOARD AT THE CLOSE OF BUSINESS MARCH 20, 1937.

NO PAYMENT WAS MADE TO MR. SNEIDERMAN FOR THE DAYS CLAIMED, IN VIEW OF THE DECISION OF THE COMPTROLLER GENERAL (5 COMP. GEN. 312) WHICH HELD THAT "WHEN ACTUALLY EMPLOYED" PER DIEM EMPLOYEES ENGAGED "FOR A DEFINITELY FIXED BRIEF PERIOD" MAY NOT BE ENTITLED TO PAY FOR NATIONAL HOLIDAYS WHEN NOT WORKING.

WITH RESPECT TO INAUGURATION DAY, WHICH IS A LEGAL HOLIDAY IN THE DISTRICT OF COLUMBIA, IT WAS CONSIDERED A HOLIDAY TO WHICH MR. SNEIDERMAN WAS NOT ENTITLED TO PAY WHEN NOT PERFORMING SERVICE. (SEE COMP. GEN. A- 26662.)

YOUR LETTER OF APPOINTMENT, DATED DECEMBER 21, 1936, IS AS FOLLOWS:

YOU HAVE BEEN APPOINTED BY THE SOCIAL SECURITY BOARD TO THE POSITION, GRADE, AND SALARY INDICATED BELOW, EFFECTIVE DATE OF ENTRANCE ON DUTY:

CHART

BUREAU: BUSINESS MANAGEMENT.

POSITION:UNDER CLERK.

GRADE: CAF-1.

SALARY: $3.50 PER DIEM WHEN ACTUALLY EMPLOYED.

STATION: WASHINGTON, D.C.

NATURE OF APPOINTMENT: TEMPORARY, NOT TO EXCEED 3 MONTHS (SECTION

4, RULE VIII, C.S.CERT.NO. F-10646).

UNDER THIS APPOINTMENT YOU ARE NOT SUBJECT TO THE PROVISIONS OF THE RETIREMENT ACT OF 1920, AS AMENDED, AND ACCORDINGLY THE PRESCRIBED DEDUCTION OF 3 1/2 PERCENT WILL NOT BE MADE FROM YOUR SALARY TO BE DEPOSITED IN THE RETIREMENT FUND.

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.

IN DECISION OF MAY 10, 1935, 14 COMP. GEN. 818, 820, AFTER QUOTING THE ABOVE STATUTES, IT WAS HELD AS FOLLOWS:

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, VIX, "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.

* * * NO 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. 532).

YOUR TEMPORARY POSITION WAS REQUIRED TO BE CLASSIFIED. WHILE IT WAS PERMISSIBLE FOR THE SOCIAL SECURITY BOARD TO PAY THE SALARY OF YOUR TEMPORARY POSITION "WHEN ACTUALLY EMPLOYED" ON A PER DIEM BASIS, DUE TO THE EXIGENCIES OF THE SERVICE, YOU WERE NOT A BONA FIDE PER DIEM EMPLOYEE ENTITLING YOU TO GRATUITY HOLIDAY PAY UNDER THE QUOTED STATUTES FOR THE LEGAL HOLIDAYS DECEMBER 25, 1936, JANUARY 1, 1937, AND FEBRUARY 22, 1937, ON WHICH NO WORK WAS PERFORMED.

IN YOUR LETTERS OF DECEMBER 30, 1936, AND JANUARY 17, 1937, TO WHICH REPLIES WERE MADE UNDER DATE OF JANUARY 12, 1937, AND FEBRUARY 8, 1937, RESPECTIVELY, YOU DID NOT STATE THE NATURE OF YOUR DUTIES. IN SAID REPLIES IT WAS ASSUMED THAT YOU WERE A BONA FIDE PER DIEM EMPLOYEE, BUT THE ADDITIONAL FACTS NOW DISCLOSED SHOW THAT YOU WERE NOT A BONA FIDE PER DIEM EMPLOYEE ENTITLED TO GRATUITY PAY FOR ANY LEGAL HOLIDAY FOR WHICH NO WORK WAS PERFORMED, SUCH AS ON DECEMBER 25, 1936, JANUARY 1, 1937, AND FEBRUARY 22, 1937.

PUBLIC RESOLUTION NO. 18, APPROVED MARCH 29, 1937, PROVIDES AS FOLLOWS:

THAT THE EMPLOYEES OF THE UNITED STATES GOVERNMENT IN THE DISTRICT OF COLUMBIA AND THE EMPLOYEES OF THE DISTRICT OF COLUMBIA WHO COME WITHIN THE PROVISIONS OF THE ACT APPROVED JUNE 18, 1888, AND WHO, UNDER THE PROVISIONS OF SAID ACT, DID NOT WORK ON WEDNESDAY, JANUARY 20, 1937, DUE TO THE CLOSING OF THEIR PLACES OF EMPLOYMENT ON ACCOUNT OF THE HOLIDAY, SHALL BE ENTITLED TO PAY FOR SAID HOLIDAY.

THE ACT OF JUNE 18, 1888, 25 STAT. 185, REFERRED TO IN THE ABOVE QUOTED STATUTE, PROVIDES AS FOLLOWS:

THAT SECTION NINE HUNDRED AND NINETY-THREE OF THE REVISED STATUTES OF THE UNITED STATES RELATING TO THE DISTRICT OF COLUMBIA BE, AND THE SAME HEREBY IS, AMENDED, BY ADDING TO THE DAYS THEREIN DECLARED TO BE HOLIDAYS WITHIN THE SAID DISTRICT, THAT DAY UPON WHICH THE PRESIDENT OF THE UNITED STATES IS INAUGURATED, OTHERWISE CALLED INAUGURATION DAY, AND THAT SUCH DAY SHALL BE A HOLIDAY FOR ALL THE PURPOSES MENTIONED IN SAID SECTION.

SECTION 903 OF THE REVISED STATUTES OF THE UNITED STATES RELATING TO THE DISTRICT OF COLUMBIA, REFERRED TO IN THE ABOVE-QUOTED STATUTE, WHICH WAS INCLUDED AS A PART OF SECTION 1389 OF THE CODE OF LAWS FOR THE DISTRICT OF COLUMBIA BY THE ACT OF MARCH 3, 1901, 31 STAT. 1189, 1405, AND AMENDED BY THE ACT OF JUNE 30, 1902, 32 STAT. 520, 543, PROVIDES AS FOLLOWS:

* * * THE FOLLOWING DAYS IN EACH YEAR, NAMELY, THE FIRST DAY OF JANUARY, COMMONLY CALLED NEW YEAR'S DAY; THE TWENTY-SECOND DAY OF FEBRUARY, KNOWN AS WASHINGTON'S BIRTHDAY; THE FOURTH OF JULY; THE THIRTIETH DAY OF MAY, COMMONLY CALLED DECORATION DAY; THE FIRST MONDAY IN SEPTEMBER, KNOWN AS LABOR'S HOLIDAY; THE TWENTY-FIFTH DAY OF DECEMBER, COMMONLY CALLED CHRISTMAS DAY; EVERY SATURDAY AFTER TWELVE O CLOCK NOON; ANY DAY APPOINTED OR RECOMMENDED BY THE PRESIDENT OF THE UNITED STATES AS A DAY OF PUBLIC FASTING OR THANKSGIVING, AND THE DAY OF THE INAUGURATION OF THE PRESIDENT, IN EVERY FOURTH YEAR, SHALL BE HOLIDAYS IN THE DISTRICT FOR ALL PURPOSES.

UNLIKE THE ACTS OF JANUARY 6, 1885, FEBRUARY 23, 1887, AND JUNE 28, 1894, SUPRA, GRANTING HOLIDAY PAY, THE PUBLIC RESOLUTION OF MARCH 29, 1937, GRANTING HOLIDAY PAY FOR JANUARY 20, 1937, INAUGURATION DAY, IS NOT LIMITED TO PER DIEM EMPLOYEE, BUT IS APPLICABLE TO ALL EMPLOYEES OF THE FEDERAL AND DISTRICT OF COLUMBIA GOVERNMENTS IN THE DISTRICT OF COLUMBIA WHOSE OFFICES WERE CLOSED BY REASON OF THE HOLIDAY, REGARDLESS OF THE BASIS OF EMPLOYMENT AND INCLUDING THOSE EMPLOYED BY THE DAY AND PAID ONLY WHEN ACTUALLY EMPLOYED. IN OTHER WORDS, IN COMPUTING COMPENSATION OF ANY EMPLOYEE IN THE DISTRICT OF COLUMBIA, JANUARY 20, 1937, IS REQUIRED TO BE REGARDED AS A DUTY DAY; THAT IS, AS THOUGH THE EMPLOYEE HAD ACTUALLY WORKED ON SAID DAY. SEE DECISION OF DECEMBER 30, 1936, 16 COMP. GEN. 625, WHEREIN A SIMILAR CONSTRUCTION WAS MADE IN RESPECT OF THE JOINT RESOLUTION OF JUNE 20, 1936, 49 STAT. 1568, APPLICABLE TO DECEMBER 26, 1936--- A STATUTE IN PARI MATERIA WITH THAT OF PUBLIC RESOLUTION NO. 18, APPROVED MARCH 29, 1937.

ACCORDINGLY, IT WOULD APPEAR THAT YOU ARE ENTITLED TO THE SUM OF $3.50 COMPENSATION FOR JANUARY 20, 1937, INAUGURATION DAY, AND SETTLEMENT THEREFOR WILL ISSUE IN DUE COURSE.