B-69310, OCTOBER 10, 1952, 32 COMP. GEN. 177

B-69310, OCTOBER 10, 1952, 32 COMP. GEN. 177

HOLIDAY COMPENSATION - EMPLOYEE HOLIDAY PAY ACT OF JUNE 29, 1938 - EMPLOYEE STATUS DETERMINATIONS UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, THERE IS NO DISTINCTION BETWEEN PERMANENT AND TEMPORARY EMPLOYEES FOR LEAVE PURPOSES SO THAT LEAVE REGULATIONS MAY NO LONGER BE USED IN DETERMINING "REGULAR EMPLOYEES" FOR PURPOSES OF THE HOLIDAY PAY ACT OF JUNE 29, 1938; HOWEVER, IN VIEW OF THE CIVIL SERVICE REGULATIONS WHICH RECOGNIZE AS TEMPORARY ALL APPOINTMENTS MADE FOR A PERIOD NOT TO EXCEED ONE YEAR, EMPLOYEES HOLDING INDEFINITE APPOINTMENTS NOT LIMITED TO ONE YEAR OR LESS MAY BE CONSIDERED AS "REGULAR EMPLOYEES" UNDER THE 1938 ACT AND ENTITLED TO REGULAR COMPENSATION WHEN PREVENTED FROM WORKING ON HOLIDAYS, HOWEVER EMPLOYEES APPOINTED FOR LIMITED PERIODS OF NOT TO EXCEED ONE YEAR ARE CONSIDERED AS TEMPORARY EMPLOYEES AND ARE NOT ENTITLED TO THE BENEFITS OF THE 1938 ACT.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS AFFAIRS, OCTOBER 10, 1952:

REFERENCE IS MADE TO THE LETTER OF AUGUST 12, 1952 FROM THE DEPUTY ADMINISTRATOR, REQUESTING DECISION WHETHER EMPLOYEES OF THE VETERANS CANTEEN SERVICE ARE CONSIDERED REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WITHIN THE PURVIEW OF THE HOLIDAY ACT OF 1938. YOU STATE THAT THE EMPLOYEES HOLD APPOINTMENTS IN THE FOLLOWING CATEGORIES:

A. INDIVIDUALS EMPLOYED FULL-TIME UNDER AN EXCEPTED APPOINTMENT.

B. INDIVIDUALS EMPLOYED FULL-TIME UNDER AN EXCEPTED APPOINTMENT, INDEFINITE.

C. INDIVIDUALS EMPLOYED FULL-TIME UNDER AN EXCEPTED APPOINTMENT NOT TO EXCEED A PERIOD OF MORE THAN ONE YEAR.

D. INDIVIDUALS EMPLOYED PART-TIME UNDER AN EXCEPTED APPOINTMENT WHO HAVE A REGULAR TOUR OF DUTY ON THE SAME DAY OR DAYS DURING EACH ADMINISTRATIVE WORK WEEK.

PUBLIC RESOLUTION 127 OF JUNE 29, 1938, 52 STAT. 1246-1247, PROVIDES:

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.

IN DECISION OF SEPTEMBER 24, 1947, B-69310, TO THE THEN ADMINISTRATOR OF VETERANS AFFAIRS, IT WAS STATED, IN PERTINENT PART, AS FOLLOWS:

AS HAS BEEN STATED IN THE MORE RECENT DECISIONS CITED IN YOUR LETTER THE LEAVE REGULATIONS HAVE BEEN USED AS A GENERAL GUIDE IN DETERMINING WHETHER AN EMPLOYEE QUALIFIES AS A "REGULAR EMPLOYEE" WITHIN THE PROVISIONS OF THE HOLIDAY PAY STATUTE OF JUNE 29, 1938, 52 STAT. 1246. IN OTHER WORDS, IF AN EMPLOYEE IS TEMPORARY FOR LEAVE PURPOSES HE IS NOT TO BE REGARDED AS HAVING ATTAINED THAT DEGREE OF PERMANENCY TO CONSTITUTE HIM A "REGULAR EMPLOYEE OF THE FEDERAL GOVERNMENT" WITHIN THE MEANING OF THAT LANGUAGE APPEARING IN THE HOLIDAY PAY STATUTE. ON THE OTHER HAND, IF HE EARNS LEAVE AS A PERMANENT EMPLOYEE HE IS REGARDED AS HAVING SATISFIED THE REQUIREMENTS OF THE STATUTE IN RESPECT THEREOF.

IN LINE WITH THAT STATEMENT IT WAS HELD IN THE DECISION THAT EMPLOYEES OF THE VETERANS CANTEEN SERVICE WHO WERE GIVEN SIX MONTH APPOINTMENTS WERE TEMPORARY AND NOT REGULAR EMPLOYEES WITHIN THE PURVIEW OF THE HOLIDAY STATUTE.

YOUR DIFFICULTY IN THE PRESENT APPLICATION OF THAT DECISION ARISES FROM THE FACT THAT UNDER THE ANNUAL AND SICK LEAVE ACT OF OCTOBER 30, 1951, 65 STAT. 679, NO DISTINCTION NOW IS MADE BETWEEN PERMANENT AND TEMPORARY EMPLOYEES FOR LEAVE PURPOSES IN VIEW OF WHICH THE REGULATIONS ISSUED THEREUNDER NOW AFFORD NO BASIS FOR DETERMINING THE APPLICATION OF THE 1938 HOLIDAY STATUTE.

IN 25 COMP. GEN. 715, IT WAS STATED THAT RECOURSE TO THE LEAVE REGULATIONS AS A GUIDE FOR DETERMINING WHO MAY QUALIFY AS "REGULAR EMPLOYEES, WAS RECOGNIZED AS NOT FREE FROM OBJECTION AND IN THAT DECISION FURTHER REFERENCE WAS MADE TO THE CIVIL SERVICE REGULATION GOVERNING WAR SERVICE APPOINTMENTS AND IT WAS THEREIN STATED THAT EMPLOYEES GIVEN INDEFINITE APPOINTMENTS, FOR THE DURATION OF THE WAR AND SIX MONTHS THEREAFTER, WOULD BE CONSIDERED REGULAR EMPLOYEES FOR PURPOSES OF APPLYING THE BENEFITS OF THE 1938 HOLIDAY ACT.

THE CIVIL SERVICE REGULATION THEREIN CONSIDERED DESIGNATED APPOINTMENTS LIMITED TO ONE YEAR OR LESS AS "TEMPORARY.' THE PRESENT CIVIL SERVICE REGULATIONS PERSONNEL MANUAL Z1-215, 216, SECTION 2.114 (B) RECOGNIZES AS TEMPORARY ALL APPOINTMENTS MADE FOR A PERIOD NOT TO EXCEED ONE YEAR.

ACCORDINGLY, SINCE SOME SIGNIFICANCE MUST ATTACH TO THE TERM "REGULAR EMPLOYEES," AS USED IN THE STATUTE, THERE APPEARS JUSTIFIED THE CONCLUSION, IN THE ABSENCE OF ANY STATUTORY DEFINITION OF SAID TERM, THAT PERSONS HOLDING INDEFINITE APPOINTMENTS, NOT LIMITED TO ONE YEAR OR LESS, MAY BE CONSIDERED REGULAR EMPLOYEES FOR PURPOSES OF THE 1938 STATUTE, BUT THAT EMPLOYEES APPOINTED FOR LIMITED PERIODS OF NOT TO EXCEED ONE YEAR--- WHO ARE CONSIDERED TO BE TEMPORARY EMPLOYEES--- MAY NOT QUALIFY AS REGULAR EMPLOYEES UNDER SAID STATUTE. THEREFORE, OF THE EXAMPLES INCLUDED IN YOUR SUBMISSION, EMPLOYEES COVERED BY CATEGORIES A, B, AND D IN THAT PART OF THE LETTER ABOVE QUOTED WILL BE ENTITLED TO THEIR REGULAR COMPENSATION WHEN PREVENTED FROM WORKING ON HOLIDAYS, BUT THAT EMPLOYEES IN CATEGORY C- -- BEING TEMPORARY--- WILL NOT BE ENTITLED TO SUCH BENEFITS.