B-6669, NOVEMBER 21, 1939, 19 COMP. GEN. 511

B-6669, NOVEMBER 21, 1939, 19 COMP. GEN. 511

SUNDAYS AND HOLIDAYS - HOLIDAYS - COMPENSATION - "TEMPORARY" PER DIEM, ETC., EMPLOYEES "TEMPORARY EMPLOYEES" AS DEFINED IN THE UNIFORM LEAVE REGULATIONS--- "THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS-- " ARE NOT "REGULAR EMPLOYEES" WITHIN THE MEANING OF THE PER DIEM, ETC., EMPLOYEE HOLIDAY PAY STATUTE OF JUNE 29, 1938, 52 STAT. 1246, AND THUS ARE EXCLUDED FROM ITS PROVISIONS, AND SUCH A TEMPORARY EMPLOYEE ON A 5 DAY, 40 -HOUR WEEK BASIS, IS NOT ENTITLED TO PAY FOR A HOLIDAY EVEN THOUGH IT OCCURS ON A DAY WHICH IS A PART OF HIS 40-HOUR WORK WEEK, AND EVEN THOUGH HE IS IN A DUTY OR LEAVE WITH PAY STATUS THROUGHOUT THE WORK WEEK.

COMPTROLLER GENERAL BROWN TO THE ACTING SECRETARY OF THE NAVY, NOVEMBER 21, 1939:

I HAVE YOUR LETTER OF OCTOBER 17, 1939, AS FOLLOWS:

A RECENT INQUIRY HAS DIRECTED THE ATTENTION OF THE NAVY DEPARTMENT TO YOUR DECISION OF NOVEMBER 26, 1938, TO THE SECRETARY OF THE INTERIOR (18 COMP. GEN., 481). IT IS NOTED THAT THIS DECISION, IN REFERRING TO TEMPORARY PER DIEM EMPLOYEES WHO WORKED ON BOTH THE DAY PRECEDING AND THE DAY FOLLOWING A HOLIDAY, STATES IN PART, THAT:

"EMPLOYEES WHO ARE EMPLOYED FOR DEFINITE PERIODS OF LESS THAN SIX MONTHS ORDINARILY SHOULD NOT BE GRANTED PAY FOR HOLIDAYS ON WHICH NO WORK IS PERFORMED.'

INFORMATION IS REQUESTED AS TO WHETHER THE DECISION, SUPRA, MODIFIES YOUR DECISION OF OCTOBER 25, 1938 (18 COMP. GEN., 378), TO THE SECRETARY OF WAR, IN WHICH, IN RESPONSE TO THE FOLLOWING QUESTION:

"/1) ARE TEMPORARY PER DIEM EMPLOYEES WORKING ON A 5-DAY, 40-HOUR WEEK BASIS ( MONDAY THROUGH FRIDAY) ENTITLED TO 1 DAY'S REGULAR PAY FOR A HOLIDAY FALLING ON A DAY OF THEIR REGULAR TOUR OF DUTY WHEN SUCH A DAY OCCURS WITHIN A PERIOD OF LEAVE WITH PAY WHETHER THE LEAVE BE ANNUAL OR SICK (NOT AS PAY FOR THE HOLIDAY AS SUCH, BUT AS PAY FOR A DAY OF LEAVE/? " YOU SAID

"QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE, PROVIDED THE TERMS AND TENURE OF EMPLOYMENT OF THE TEMPORARY EMPLOYEES REFERRED TO ARE SUCH AS WOULD ENTITLE THEM TO A FULL WEEK'S PAY FOR THE WEEK IN WHICH THE HOLIDAY OCCURRED IF THEY HAD REMAINED IN A DUTY STATUS AND HAD BEEN PREVENTED OR RELIEVED FROM WORKING ON THE HOLIDAY. BUT IF THE TERMS AND TENURE OF EMPLOYMENT ARE SUCH THAT HAD THEY BEEN ON A DUTY STATUS DURING THE WEEK IN WHICH THE HOLIDAY OCCURRED THEY WOULD HAVE WORKED ONLY 4 DAYS (32 HOURS), AND HAVE BEEN PAID ONLY 32/40 OF A FULL WEEK'S PAY, THEN WHEN ON LEAVE WITH PAY DURING THE ENTIRE WEEK IN WHICH A HOLIDAY OCCURS THEY WOULD BE ENTITLED LIKEWISE TO ONLY 32/40 OF A FULL WEEK'S PAY FOR SUCH WEEK.'

IT WOULD APPEAR FROM THE TWO DECISIONS, CITED ABOVE, THAT A TEMPORARY PER DIEM EMPLOYEE, WORKING ON BOTH THE DAY PRECEDING AND THE DAY FOLLOWING A HOLIDAY SHOULD BE DENIED PAY FOR THE HOLIDAY, WHEREAS IF THE SAME EMPLOYEE WERE ON ANNUAL LEAVE WITH PAY ON THE DAYS ON EACH SIDE OF THE HOLIDAY THAT HE WOULD BE ENTITLED TO PAY FOR THE HOLIDAY. THE DEPARTMENT IS UNABLE TO RECONCILE THE EQUITIES IN THE TWO CASES AND IN ORDER THAT A DEFINITE AUTHORITATIVE RULE MAY BE PUBLISHED FOR THE GUIDANCE OF ACCOUNTING OFFICERS, THE FOLLOWING QUESTION IS SUBMITTED:

IS A TEMPORARY PER DIEM EMPLOYEE, AS DEFINED IN SECTION 1 (C) OF THE LEAVE REGULATIONS, WHO IS EMPLOYED ON A 5-DAY, 40-HOUR WEEK BASIS ENTITLED TO PAY FOR A HOLIDAY OCCURRING WITHIN HIS REGULAR TOUR OF DUTY, PROVIDED HE IS RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE HOLIDAY, REGARDLESS OF THE DAY OF THE WEEK THE HOLIDAY COMES ON, PROVIDED, OF COURSE, THAT DAY IS A PART OF THE EMPLOYEE'S 40-HOUR WORK WEEK? IN OTHER WORDS, SHOULD A TEMPORARY PER DIEM EMPLOYEE WHO IS EMPLOYED ON A 5-DAY, 40 -HOUR WEEK BASIS BE PAID FOR 40 HOURS IN ANY GIVEN WEEK IN WHICH A HOLIDAY OCCURS ON A DAY THAT IS A PART OF THE EMPLOYEE'S 40-HOUR WEEK, AND THE EMPLOYEE IS IN DUTY OR LEAVE WITH PAY STATUS THROUGHOUT THE WORK WEEK*.

YOUR DECISION IN THE PREMISES WILL BE APPRECIATED.

PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938, 52 STAT. 1246, COMMONLY KNOWN AS THE HOLIDAY PAY STATUTE, 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.

SECTION 1 (C) OF THE UNIFORM ANNUAL LEAVE REGULATIONS, EXECUTIVE ORDER NO. 7845, DATED MARCH 21, 1938, DEFINES THE WORDS "TEMPORARY EMPLOYEES," AS FOLLOWS:

"TEMPORARY EMPLOYEES" ARE THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING SIX MONTHS.

IT WILL BE OBSERVED THAT THE FIRST REQUISITE OF A CLAIM ON THE PART OF A PER DIEM EMPLOYEE TO HOLIDAY PAY UNDER THAT STATUTE IS THAT HE BE A "REGULAR EMPLOYEE OF THE FEDERAL GOVERNMENT.' IT WAS HELD IN THE DECISION FROM WHICH YOU FIRST QUOTE, 18 COMP. GEN. 481, THAT PERSONS APPOINTED FOR DEFINITE PERIODS OF LESS THAN 6 MONTHS ORDINARILY DO NOT HAVE THE STATUS OF "REGULAR EMPLOYEES" FOR PURPOSES OF THE HOLIDAY PAY STATUTE, AND THIS POSITION WAS REITERATED IN MY RECENT DECISION OF OCTOBER 9, 1939, B-4677, 19 COMP. GEN. 426.

THE EARLIER DECISION, 18 COMP. GEN. 378, QUOTED IN YOUR LETTER, IS NOT AT VARIANCE WITH THAT RULE. IT DOES NOT HOLD, AS APPEARS TO BE YOUR OPINION, THAT A TEMPORARY PER DIEM EMPLOYEE ON LEAVE WITH PAY DURING A PERIOD IN WHICH HOLIDAY OCCURS IS ABSOLUTELY ENTITLED TO PAY FOR THE HOLIDAY; RATHER, THE PARAGRAPH OF THE DECISION YOU QUOTE SPECIFICALLY RECOGNIZES THAT THE RIGHT TO HOLIDAY PAY--- WHETHER DURING A PERIOD OF LEAVE OR NOT-- - EXISTS ONLY "PROVIDED THE TERMS AND TENURE OF EMPLOYMENT OF THE TEMPORARY EMPLOYEES REFERRED TO ARE SUCH AS WOULD ENTITLE THEM TO A FULL WEEK'S PAY FOR THE WEEK IN WHICH THE HOLIDAY OCCURRED IF THEY HAD REMAINED IN A DUTY STATUS AND HAD BEEN PREVENTED OR RELIEVED FROM WORKING ON THE HOLIDAY.' THAT IS TO SAY, SAID DECISION RELATED TO LEAVE STATUS OF "TEMPORARY EMPLOYEES" IN THE BROAD SENSE AND NOT TO "TEMPORARY EMPLOYEES" AS DEFINED IN THE LEAVE REGULATIONS. IT DOES NOT FOLLOW THAT BECAUSE TEMPORARY EMPLOYEES, AS DEFINED IN THE LEAVE REGULATIONS, HAVE A RIGHT TO LEAVE WITH PAY UNDER THE LEAVE STATUTE AND REGULATIONS CONSTITUTES THEM "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT" FOR PURPOSES OF THE HOLIDAY STATUTE.

THE RIGHT TO HOLIDAY PAY DEPENDS AS MUCH UPON (1) THE INDIVIDUAL'S STATUS AS A "REGULAR MPLOYEE" AS UPON (2) THE ESTABLISHMENT OF THE FACT THAT SUCH EMPLOYEE WAS "RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY," ETC. THE LATER DECISION AFFECTS THE EARLIER ONE ONLY WITH RESPECT TO POINTING OUT THAT TEMPORARY EMPLOYEES WHO ARE APPOINTED FOR DEFINITE PERIODS OF LESS THAN SIX MONTHS HAVE NOT THE STATUS OF "REGULAR EMPLOYEES" FOR PURPOSES OF THE HOLIDAY STATUTE. THUS, TEMPORARY EMPLOYEES, SO DEFINED, ARE, BY THEIR "TERMS AND TENURE OF EMPLOYMENT" (THE QUALIFYING PHRASE USED IN THE EARLIER DECISION) EXCLUDED FROM HOLIDAY PAY AS NOT BEING REGULAR EMPLOYEES.

TO SUMMARIZE, IT IS NOT THE FACT OF BEING ON LEAVE OR ON DUTY BEFORE AND AFTER THE HOLIDAY WHICH DETERMINES THE RIGHT TO PAY FOR THE HOLIDAY, BUT IT IS, PRIMARILY, THE FACT OF BEING OR NOT BEING A REGULAR EMPLOYEE OF THE GOVERNMENT; AND FOR THIS PURPOSE, WHILE THERE MAY WELL BE SOME "TEMPORARY EMPLOYEES" IN THE BROADEST SENSE WHO FAIRLY MAY BE THOUGHT TO HAVE SUCH STATUS, AS TO TEMPORARY EMPLOYEES AS DEFINED IN THE UNIFORM LEAVE REGULATIONS ("THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING SIX MONTHS") IT IS THE RULE THAT THEY ARE NOT TO BE REGARDED AS "REGULAR EMPLOYEES" FOR THE PURPOSE OF THE HOLIDAY STATUTE. NOR IS IT NECESSARILY ANOMALOUS THAT SUCH PERSONS ARE ENTITLED TO LEAVE WITH PAY BUT NOT TO HOLIDAY PAY. THE HOLIDAY PAY STATUTE, AS STATED, COVERS ONLY "REGULAR EMPLOYEES," BUT IN CONTRAST, THE ANNUAL LEAVE ACT (49 STAT. 1161) APPLIES TO ,ALL CIVILIAN OFFICERS AND EMPLOYEES * * * REGARDLESS OF THEIR TENURE" AND SPECIFICALLY GRANTS LEAVE TO TEMPORARY EMPLOYEES.