B-5294, SEPTEMBER 9, 1939, 19 COMP. GEN. 337

B-5294, SEPTEMBER 9, 1939, 19 COMP. GEN. 337

SUNDAYS AND HOLIDAYS - HOLIDAYS - COMPENSATION - PER DIEM, PER HOUR, AND PIECE-WORK EMPLOYEES AND ANNUAL OR MONTHLY EMPLOYEES WITH COMPENSATION COMPUTED ON BASIS OF THE DAY AS EMPLOYEES WHOSE COMPENSATION IS "REQUIRED BY STATUTE" TO BE BASED ON THE YEAR OR MONTH, IF OTHERWISE IN A PAY STATUS AND UNLESS THEY BE EMPLOYED ON A "WHEN ACTUALLY EMPLOYED" BASIS, ARE ENTITLED TO THEIR REGULAR PAY FOR HOLIDAYS WHETHER OR NOT WORK IS PERFORMED ON SUCH HOLIDAYS, EVEN THOUGH FOR CONVENIENCE AN ADMINISTRATIVE OFFICE MAY COMPUTE AND PAY THE ANNUAL OR MONTHLY COMPENSATION ON THE BASIS OF THE DAY, PUBLIC RESOLUTION NO. 127, JUNE 29, 1938, 52 STAT. 1246, PROVIDING FOR HOLIDAY COMPENSATION FOR REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE-WORK BASIS, DOES NOT APPLY TO SUCH EMPLOYEES. WHILE EMPLOYEES WHO DO NOT COME WITHIN THE CLASSIFICATION ACT, OR ANY OTHER LAW REQUIRING THAT THEIR COMPENSATION BE AT A RATE PER ANNUM, OR PER MONTH, AND WHOSE COMPENSATION IS ADMINISTRATIVELY FIXED AT A RATE PER DAY, OR PER HOUR, OR PER PIECE, AND WHO ARE REQUIRED TO WORK ALL, OR SUBSTANTIALLY ALL, THE TIME, WERE NOT REGARDED AS BEING ENTITLED TO PAY FOR HOLIDAYS UNDER THE OLD PER DIEM EMPLOYEE HOLIDAY STATUTES, THEY QUALIFY AS "REGULAR EMPLOYEES" AND OTHERWISE COME WITHIN THE PROVISIONS OF PUBLIC RESOLUTION NO. 127, JUNE 29, 1938, 52 STAT. 1246, PROVIDING FOR HOLIDAY COMPENSATION FOR "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE- WORK BASIS.' 18 COMP. GEN. 481, DISTINGUISHED.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF AGRICULTURE, SEPTEMBER 9, 1939:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 28, 1939, AS FOLLOWS:

YOUR DECISION IS REQUESTED WITH REGARD TO THE GRANT OF HOLIDAY COMPENSATION UNDER PUBLIC RESOLUTION NO. 127, 75TH CONGRESS, JUNE 29, 1938 (52 STAT. 1246).

THE QUESTION HAS BEEN RAISED AS TO WHETHER THE COMPENSATION PROVIDED BY PUBLIC RESOLUTION NO. 127, SUPRA, IS ALLOWABLE TO EMPLOYEES OTHERWISE QUALIFIED UNDER THE STATUTE, WITHOUT REGARD TO WHETHER THEIR COMPENSATION IS FIXED BY LAW OR LEGISLATIVE REGULATION, OR MERELY BY ADMINISTRATIVE ACTION FOR THE SAKE OF CONVENIENCE. THIS QUESTION IS PROMPTED PRINCIPALLY BY THE HOLDING IN A DECISION OF ACTING COMPTROLLER GENERAL ELLIOTT OF NOVEMBER 26, 1938 (18 COMP. GEN. 481), WHICH IS, IN PART, AS FOLLOWS:

"GENERALLY THE TERM "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE WORK BASIS" INCLUDES ALL EMPLOYEES WHOSE COMPENSATION IS REQUIRED TO BE MEASURED IN THE MANNER SPECIFIED * * * WHO WERE ENTITLED TO HOLIDAY PAY UNDER THE STATUTES IN FORCE PRIOR TO JUNE 29, 1938, INCLUDING BOTH PERMANENT AND TEMPORARY EMPLOYEES. THE PUBLIC RESOLUTION OF JUNE 29, 1938, SUPRA, WAS NOT INTENDED TO AND DOES NOT ENLARGE THE CLASSES OF EMPLOYEES ENTITLED TO HOLIDAY PAY WITHOUT WORKING, BUT MERELY CHANGES THE BASIS OF PAYMENT.'

THE JOINT RESOLUTION OF JANUARY 6, 1885 (23 STAT. 516; 5 U.S.C., 86), PROVIDED THAT "EMPLOYEES OF THE NAVY YARD, GOVERNMENT PRINTING OFFICE, BUREAU OF PRINTING AND ENGRAVING, AND ALL OTHER PER DIEM EMPLOYEES OF THE GOVERNMENT * * *" WERE TO BE ALLOWED CERTAIN HOLIDAYS AND WERE TO RECEIVE THE SAME PAY THEREON AS ON OTHER DAYS. THIS STATUTE WAS REPEALED BY PUBLIC RESOLUTION NO. 127, SUPRA, WHICH 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 DEPARTMENT HAS A NUMBER OF EMPLOYEES WHOSE SALARIES ARE FIXED, FOR ADMINISTRATIVE CONVENIENCE, ON A PER DIEM OR PER HOUR BASIS, ESPECIALLY CLASSIFIED EMPLOYEES WHOSE SALARIES REPRESENT FRACTIONS OR "BREAK-DOWNS" OF THE ANNUAL RATE APPLICABLE. IT WAS CLEARLY THE OPINION OF YOUR OFFICE, PRIOR TO THE ENACTMENT OF PUBLIC RESOLUTION NO. 127, SUPRA, THAT THE STATUTE THEN APPLICABLE PROVIDED HOLIDAY COMPENSATION ONLY FOR EMPLOYEES OF THE AGENCIES ENUMERATED, AND OTHERS WHO WERE PAID ON A PER DIEM BASIS AND WHOSE POSITIONS WERE OF SUCH A CLASS AS TO BRING THEM WITHIN THE EXEMPTIONS FROM CLASSIFICATION IN THE CLASSIFICATION ACT OF 1923, I.E., PRIMARILY EMPLOYEES IN A RECOGNIZED TRADE OR CRAFT OR A SIMILAR OCCUPATION (14 COMP. GEN. 818).

UNDER THE JOINT RESOLUTION OF JANUARY 6, 1885, THERE WAS PROVIDED HOLIDAY COMPENSATION ONLY FOR "PER DIEM EMPLOYEES," WHEREAS THE NEW LAW PROVIDES SUCH COMPENSATION FOR "REGULAR EMPLOYEES * * * WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE-WORK BASIS * * *.' IN 18 COMP. GEN. 207, 210, ACTING COMPTROLLER GENERAL ELLIOTT STATED THAT "IT EVIDENTLY WAS THE INTENT OF CONGRESS THAT THE NEW HOLIDAY STATUTE FOR PER DIEM, PER HOUR, OR PIECE-WORK EMPLOYEES, * * * SHOULD BE UNIFORMLY APPLIED TO ALL "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE-WORK BASIS.'" ( ITALICS SUPPLIED.) IN 18 COMP. GEN. 259, 260, MR. ELLIOTT OBSERVED THAT: "AS CHARWOMEN ARE "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE * * * PER HOUR," THE LATTER STATUTE IS APPLICABLE TO THEM, SECTION 2 OF WHICH REPEALS THE FORMER STATUTE.' IT IS CLEAR, THEREFORE, THAT HOLIDAY COMPENSATION IS NO LONGER RESTRICTED TO "PER DIEM EMPLOYEES," AS THAT TERM DEFINED UNDER THE OLD HOLIDAY STATUTE, BUT INCLUDES EMPLOYEES PAID BY THE HOUR OR EVEN ON A PIECE-WORK BASIS. IS THE BELIEF OF THIS DEPARTMENT, THEREFORE, THAT WHERE, IN 18 COMP. GEN. 481, SUPRA, THE ACTING COMPTROLLER GENERAL STATED THAT "THE PUBLIC RESOLUTION OF JUNE 29, 1938, SUPRA, WAS NOT INTENDED TO AND DOES NOT ENLARGE THE CLASSES OF EMPLOYEES ENTITLED TO HOLIDAY PAY WITHOUT WORKING, BUT MERELY CHANGES THE BASIS OF PAYMENT," HE MAY HAVE BEEN REGARDING ONLY THE PROBLEM, AS PRESENTED IN THAT DECISION, OF DETERMINING, WITH REFERENCE TO THE DURATION OF THE PARTICULAR TYPE OF EMPLOYMENT, WHETHER THE EMPLOYEE WAS IN FACT "REGULAR," AND MAY NOT HAVE INTENDED TO IMPLY THAT THE OLD RIGID RULE OF DETERMINING WHO ARE PER DIEM EMPLOYEES STILL OBTAINS. WHILE THE NEW HOLIDAY STATUTE REFERS TO THE COMPENSATION OF EMPLOYEES CONCERNED AS "FIXED" AT CERTAIN RATES, IT DOES NOT INDICATE THAT SUCH FIXING IS LIMITED TO COMPENSATION WHICH IS FIXED BY LAW. MOREOVER, BY REFERENCE TO 14 COMP. GEN. 818 AND 18 ID. 481, IT WILL BE FOUND THAT THE COMPENSATION OF EMPLOYEES UNDER CONSIDERATION IN THOSE DECISIONS WAS NOT FIXED BY LAW BUT BY ADMINISTRATIVE ACTION.

THE LEGISLATIVE BACKGROUND OF PUBLIC RESOLUTION NO. 127, SUPRA, INDICATES THAT THE IMMEDIATE CAUSE FOR SEEKING ITS ENACTMENT WAS THE DECISION OF THE ACTING COMPTROLLER GENERAL OF DECEMBER 20, 1937 (17 COMP. GEN. 519), HOLDING PER DIEM EMPLOYEES NOT ENTITLED TO PAY FOR A DAY DECLARED A HOLIDAY BY EXECUTIVE ORDER, IN THE ABSENCE OF EXPRESS STATUTE. SEE HOUSE OF REPRESENTATIVES REPORT NO. 2683, 75TH CONGRESS, 3D SESSION. THE JOINT RESOLUTION, HOWEVER, GOES BEYOND SUCH IMMEDIATE PROBLEM BY USE OF NEW LANGUAGE, AS DISCUSSED PREVIOUSLY. MOREOVER, AS THE COMMITTEE ON THE CIVIL SERVICE REPORTED ( REPORT NO. 2683, SUPRA):

"THIS JOINT RESOLUTION WAS ORIGINALLY INTRODUCED TO GIVE THOSE EMPLOYEES, WHO LOST THEIR PAY FOR THE HOLIDAY GRANTED BY THE EXECUTIVE ORDER, THEIR COMPENSATION FOR THAT DAY. THE RESOLUTION WAS REFERRED TO THE CIVIL SERVICE COMMISSION AND THE BUREAU OF THE BUDGET FOR CONSIDERATION AND REPORT, AND BOTH REPORTED FAVORABLY AND SUGGESTED THE AMENDMENT AS OUTLINED ABOVE IN ORDER TO HAVE A PERMANENT LAW TO TAKE CARE OF SUCH SIMILAR SITUATIONS THAT MAY ARISE IN THE FUTURE. THOSE REPORTS ARE PRINTED BELOW FOR THE INFORMATION OF THE HOUSE.'

THE REPORT OF THE CIVIL SERVICE COMMISSION REFERRED TO, STATED, WITH REFERENCE TO THE EXECUTIVE ORDER CREATING THE HOLIDAY IN QUESTION:

"IT IS BELIEVED THAT THE PRESIDENT HAD IN VIEW THAT THE BENEFITS OF THE HOLIDAY BE ACCORDED TO ALL CLASSES OF EMPLOYEES TO THE GREATEST EXTENT POSSIBLE.'

IT APPEARS, THEREFORE, THAT THE STATUTE WAS DESIGNED TO BE LIBERAL IN ITS SCOPE OF APPLICATION.

ACCORDINGLY, IT IS THE OPINION OF THIS DEPARTMENT THAT, WHERE AN EMPLOYEE, WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE-WORK BASIS, OTHERWISE QUALIFIES UNDER THE STATUTE, IT IS IMMATERIAL, IN DETERMINING HIS RIGHTS UNDER THE STATUTE, WHETHER HIS COMPENSATION IS FIXED BY LAW, LEGISLATIVE REGULATION, OR MERELY BY ADMINISTRATIVE ACTION FOR THE SAKE OF CONVENIENCE. IN VIEW OF THE STATEMENT OF THE ACTING COMPTROLLER GENERAL, IN 18 COMP. GEN. 481, SUPRA, HOWEVER, YOUR CLARIFICATION OF THIS POINT IS REQUESTED.

THE STATEMENT IN THE DECISION OF NOVEMBER 26, 1938, REPORTED IN 18 COMP. GEN. 481, THAT " THE PUBLIC RESOLUTION OF JUNE 29, 1938, SUPRA, WAS NOT INTENDED TO AND DOES NOT ENLARGE THE CLASSES OF EMPLOYEES ENTITLED TO HOLIDAY PAY WITHOUT WORKING, BUT MERELY CHANGES THE BASIS OF PAYMENT," IS NOT TO BE REGARDED AS HOLDING THAT THE OLD RIGID RULE OF DETERMINING WHO ARE PER DIEM EMPLOYEES STILL OBTAINS, BUT IS, AS YOU HAVE SUGGESTED, TO BE REGARDED AS HAVING REFERENCE ONLY TO THE PROBLEM THERE PRESENTED OF DETERMINING, WITH RESPECT TO DURATION OF THE EMPLOYMENT, WHETHER THE EMPLOYEE WAS IN FACT "REGULAR" WITHIN THE PURVIEW OF THE STATUTE.

IT IS WELL SETTLED, OF COURSE, THAT EMPLOYEES WHOSE COMPENSATION IS REQUIRED BY THE CLASSIFICATION ACT, OR OTHER LAW, TO BE PAID ON AN ANNUAL OR MONTHLY BASIS, ARE ENTITLED, IF OTHERWISE IN A PAY STATUS, TO THEIR REGULAR PAY FOR HOLIDAYS WHETHER OR NOT WORK IS PERFORMED ON SUCH HOLIDAYS, AND THE RULE IS THE SAME AS TO REGULAR EMPLOYEES WHOSE ANNUAL OR MONTHLY COMPENSATION IS COMPUTED AND PAID AT A DAILY RATE ON THE BASIS OF 360 DAYS PER ANNUM OR 30 DAYS PER MONTH, UNLESS THEY BE EMPLOYED UPON THE BASIS OF "WHEN ACTUALLY EMPLOYED.' AS TO THE LATTER CLASS, ATTENTION IS INVITED TO DECISION B-1415, DATED MARCH 6, 1939; ALSO, 17 COMP. GEN. 298. IT SEEMS CLEAR, THEREFORE, THAT THE NEW HOLIDAY STATUTE OF JUNE 29, 1938, WAS NOT INTENDED TO APPLY AND DOES NOT APPLY TO EMPLOYEES WHOSE COMPENSATION IS REQUIRED BY STATUTE TO BE BASED ON THE YEAR OR MONTH, EVEN THOUGH FOR CONVENIENCE AN ADMINISTRATIVE OFFICE MAY COMPUTE AND PAY THE ANNUAL OR MONTHLY COMPENSATION ON THE BASIS OF THE DAY. 14 COMP. GEN. 818.

IT IS NOT BELIEVED, HOWEVER, THAT YOUR SUBMISSION NECESSARILY RELATES TO THAT CLASS OF EMPLOYEES, ALTHOUGH YOU EXPRESS THE OPINION IN THE CONCLUDING PARAGRAPH OF YOUR LETTER THAT IT IS IMMATERIAL IN DETERMINING AN EMPLOYEE'S RIGHTS UNDER THE 1938 STATUTE WHETHER, AMONG OTHER INGS,"HIS COMPENSATION IS FIXED BY LAW.' RATHER, IT IS BELIEVED THAT YOUR SUBMISSION HAS REFERENCE TO EMPLOYEES WHO MAY NOT COME WITHIN THE CLASSIFICATION ACT, OR ANY OTHER LAW REQUIRING THAT THEIR COMPENSATION BE AT A RATE PER ANNUM, OR PER MONTH, AND WHOSE COMPENSATION IS ADMINISTRATIVELY FIXED AT A RATE PER DAY, OR PER HOUR, OR PER PIECE, AND WHO ARE REQUIRED TO WORK ALL, OR SUBSTANTIALLY ALL, THE TIME. COMPARE DEFINITION OF "INDEFINITE EMPLOYEES" IN SECTION 1 (E) OF THE UNIFORM ANNUAL LEAVE REGULATIONS, EXECUTIVE ORDER NO. 7845, DATED MARCH 21, 1938; AND SEE SECTION 19 (F) OF SAID REGULATIONS. WHILE DOUBTLESS SUCH EMPLOYEES WERE NOT REGARDED AS BEING ENTITLED TO PAY FOR HOLIDAYS UNDER THE OLD PER DIEM EMPLOYEES HOLIDAY STATUTES THEY NEVERTHELESS WOULD APPEAR TO QUALIFY AS "REGULAR EMPLOYEES" AND OTHERWISE WOULD COME WITHIN THE PROVISIONS OF THE NEW HOLIDAY STATUTE. IT IS BELIEVED THIS ANSWERS THE QUESTION INVOLVED IN YOUR SUBMISSION.