A-80997, JANUARY 26, 1937, 16 COMP. GEN. 678

A-80997, JANUARY 26, 1937, 16 COMP. GEN. 678

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - TEMPORARY, INTERMITTENT, AND WHEN ACTUALLY EMPLOYED EMPLOYEES A TEMPORARY EMPLOYEE--- FOR LEAVE PURPOSES, ONE WHOSE APPOINTMENT IS FOR ONE OR MORE DEFINITE PERIODS NOT EXCEEDING 6 MONTHS--- WHOSE FULL TIME SERVICE FOR ANY PERIOD EQUALS AS MUCH AS ONE MONTH, IS, UNDER THE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND THE UNIFORM ANNUAL LEAVE REGULATIONS OF JULY 9, 1936, ENTITLED TO ANNUAL LEAVE AT THE RATE OF 2 1/2 DAYS PER MONTH FOR SUCH PERIOD OF SERVICE, BUT LEAVE EARNED UNDER ONE TEMPORARY APPOINTMENT MAY NOT BE CREDITED UNDER A SUBSEQUENT APPOINTMENT. EMPLOYEES APPOINTED FOR INDEFINITE PERIODS--- THOSE WHOSE EMPLOYMENT TERMINATION IS NOT FIXED IN ADVANCE AND STATED IN THE APPOINTMENT--- ARE NOT TEMPORARY EMPLOYEES WITHIN THE MEANING OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND THE UNIFORM ANNUAL LEAVE REGULATIONS OF JULY 9, 1936, AND ARE THEREFORE NOT ENTITLED TO LEAVE AS TEMPORARY EMPLOYEES. EMPLOYEES APPOINTED FOR INDEFINITE PERIODS--- THOSE WHOSE EMPLOYMENT TERMINATION IS NOT FIXED IN ADVANCE AND STATED IN THE APPOINTMENT--- IF "INTERMITTENT EMPLOYEES" WITHIN THE MEANING OF SECTION 19 (F) (3) OF THE UNIFORM ANNUAL LEAVE REGULATIONS OF JULY 9, 1936, ARE NOT ENTITLED TO ANNUAL LEAVE, BUT, IF APPOINTED ON A FULL-TIME BASIS AND REQUIRED TO WORK CONTINUOUSLY DURING REGULAR TOURS OF DUTY OF ONE MONTH OR MORE EVEN THOUGH SEPARATED BY PERIODS OF LAY-OFF OR FURLOUGH WITHOUT PAY DUE TO LACK OF WORK, ETC., THEY MAY BE REGARDED AS PERMANENT EMPLOYEES AND CREDITED WITH LEAVE AS SUCH. 16 COMP. GEN. 442 AMPLIFIED. THE RULE THAT EMPLOYEES APPOINTED FOR INDEFINITE PERIODS, IF APPOINTED ON A FULL-TIME BASIS AND REQUIRED TO WORK CONTINUOUSLY DURING REGULAR TOURS OF DUTY OF ONE MONTH OR MORE, EVEN THOUGH SEPARATED BY PERIODS OF UNEMPLOYMENT DUE TO LACK OF WORK, ETC., ARE PERMANENT EMPLOYEES WITHIN THE MEANING OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND THE UNIFORM ANNUAL LEAVE REGULATIONS OF JULY 9, 1936, AND ENTITLED TO LEAVE AS SUCH, IS NOT FOR APPLICATION TO EMPLOYEES WHO ARE TO BE PAID ONLY WHEN ACTUALLY EMPLOYED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, JANUARY 26, 1937:

YOUR LETTER OF DECEMBER 2, 1936, IS AS FOLLOWS:

FURTHER CONSIDERATION IS REQUESTED OF YOUR DECISION (A-80997) OF OCTOBER 26, 1936, WHICH FOR LEAVE PURPOSES PLACES EMPLOYEES WHO ARE HIRED FROM TIME TO TIME FOR TEMPORARY PERIODS IN THE ,INTERMITTENT" GROUP, REGARDLESS OF THE TIME UNDER A PARTICULAR EMPLOYMENT. THE FULL EFFECT OF YOUR DECISION IS TO DISCRIMINATE BETWEEN THE TEMPORARY EMPLOYEE WHO, ALTHOUGH HE WORKS BUT ONE MONTH, EARNS 2 1/2 DAYS' LEAVE (SEC. 14, EXECUTIVE ORDER NO. 7409, JULY 9, 1926) (1936), AND THE ,INTERMITTENT" EMPLOYEE WHO, ALTHOUGH HE MAY WORK FOR FIVE MONTHS UNDER A SINGLE EMPLOYMENT, ACCUMULATES NO LEAVE MERELY BECAUSE HE HAS BEEN EMPLOYED PERIODICALLY.

IT IS THEREFORE SUBMITTED THAT A DISTINCTION SHOULD BE DRAWN BETWEEN THOSE CASES WHERE AN EMPLOYEE WORKS FROM TIME TO TIME UNDER SEPARATE EMPLOYMENTS, NONE OF WHICH TOTALS A MONTH, WHICH SHOULD BE REGARDED AS "INTERMITTENT" AND NOT ENTITLED TO LEAVE, AND THOSE CASES WHERE AN EMPLOYEE, THOUGH EMPLOYED FROM TIME TO TIME, WORKS ON A SINGLE EMPLOYMENT FOR ONE MONTH OR MORE WHO, FOR LEAVE RIGHTS UNDER THAT PARTICULAR EMPLOYMENT, SHOULD BE REGARDED AS A "TEMPORARY" EMPLOYEE.

THE EFFECT OF SUCH A DISTINCTION IN THE CASE OF MR. HARRY A. POWELL, WHOSE SERVICE IS DESCRIBED IN YOUR DECISION OF OCTOBER 26, 1936, SUPRA, WOULD BE TO DENY HIM LEAVE RIGHTS FOR THE PERIOD BEFORE APRIL 29, 1936, ON THE GROUND THAT (1) MOST OF THE EMPLOYMENTS FROM JUNE 30, 1933, TO APRIL 29, 1936, WERE FOR PERIODS OF LESS THAN ONE MONTH; (2) LEAVE EARNED UNDER ONE TEMPORARY EMPLOYMENT CANNOT BE ADDED TO A LEAVE EARNED UNDER A SUBSEQUENT TEMPORARY EMPLOYMENT, BUT MUST BE TAKEN WITHIN THE PERIOD OF TEMPORARY EMPLOYMENT, (PAR. II, CIR. NO. 75, W.D., NOV. 14, 1936, QUOTING FROM RULING OF CIVIL SERVICE COMMISSION); BUT TO ALLOW HIM TO ACCUMULATE LEAVE FOR THE PERIOD SINCE APRIL 29, 1936, WHILE ENGAGED UNDER THAT EMPLOYMENT, ON THE SAME BASIS THAT ANY OTHER TEMPORARY EMPLOYEE WOULD BE ENTITLED TO LEAVE RIGHTS.

THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, EFFECTIVE JANUARY 1, 1936, CONTAINS A PROVISION AS FOLLOWS:

* * * TEMPORARY EMPLOYEES, EXCEPT TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES, SHALL BE ENTITLED TO TWO AND ONE HALF DAYS LEAVE FOR EACH MONTH OF SERVICE. * * *

SECTIONS 14 AND 19 (F) OF THE UNIFORM ANNUAL LEAVE REGULATIONS PROVIDE AS FOLLOWS:

SEC. 14. TEMPORARY EMPLOYEES SHALL BE GRANTED 2 1/2 DAYS LEAVE FOR EACH MONTH OF SERVICE BEGINNING JANUARY 1, 1936. FOR LEAVE PURPOSES, PERSONS WHO ARE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS SHALL BE CONSIDERED TEMPORARY EMPLOYEES.

SEC. 19. THESE REGULATIONS SHALL NOT APPLY TO:

(F) EMPLOYEES NOT REQUIRED TO BE CONTINUOUSLY EMPLOYED DURING REGULAR TOUR OF DUTY, SUCH AS (1) EMPLOYEES WHO ARE PAID ONLY WHEN ACTUALLY EMPLOYED; (2) PER DIEM OR PER HOUR EMPLOYEES ENGAGED IN AN EMERGENCY WHO MAY BE EMPLOYED FOR MORE THAN ONE 7 OR 8-HOUR SHIFT WITHIN 24 HOURS DURING THE EMERGENCY; (3) PART-TIME OR INTERMITTENT EMPLOYEES; (4) PERSONS ENGAGED UNDER CONTRACT; (5) EMPLOYEES ENGAGED TEMPORARILY FOR LESS THAN A MONTH ON A PIECE-PRICE BASIS; (6) EMPLOYEES WHO ARE PAID AT HOURLY RATES BUT WHO ARE NOT ENGAGED ON CONSTRUCTION WORK, SUCH AS MECHANICS, SKILLED LABORERS, AND OTHERS ENGAGED IN VARIOUS SERVICES ON MAINTENANCE, REPAIR, CLEAN-UP WORK, ETC., WHERE EMPLOYMENT IS MORE OR LESS INTERMITTENT AND NOT ON A REGULAR AND CONTINUOUS BASIS; AND (7) EMPLOYEES PAID ON A FEE BASIS, SUCH AS PHYSICIANS, SURGEONS, AND OTHER CONSULTANTS.

UNDER THE STATUTE AND SECTION 14 OF THE REGULATIONS IF ANY PERIOD OF FULL -TIME SERVICE OF A TEMPORARY EMPLOYEE (THAT IS, ONE WHOSE APPOINTMENT IS FOR ONE OR MORE DEFINITE PERIODS NOT EXCEEDING 6 MONTHS) EQUALS AS MUCH AS 1 MONTH, LEAVE IS AUTHORIZED TO BE GRANTED AT THE RATE OF 2 1/2 DAYS PER MONTH FOR SUCH PERIOD OF SERVICE. 16 COMP. GEN. 264, 266. THERE IS NO AUTHORITY TO CREDIT LEAVE EARNED UNDER ONE TEMPORARY APPOINTMENT TO AN EMPLOYEE SERVING UNDER A SUBSEQUENT APPOINTMENT.

FROM THE STATEMENTS MADE IN YOUR LETTER OF OCTOBER 7, 1936, ON THE BASIS OF WHICH THE DECISION OF OCTOBER 26, 1936, 16 COMP. GEN. 442, WAS RENDERED, AND IN YOUR PRESENT LETTER, IT IS UNDERSTOOD THAT HARRY A. POWELL WAS APPOINTED FOR INDEFINITE RATHER THAN DEFINITE PERIODS; THAT IS, THAT THE TERMINATION OF HIS EMPLOYMENT WAS NOT FIXED IN ADVANCE AND STATED IN THE APPOINTMENT. EMPLOYEES SO APPOINTED MAY NOT PROPERLY BE CLASSED AS TEMPORARY EMPLOYEES WITHIN THE MEANING OF THE LEAVE ACTS AND REGULATIONS. HENCE, THEY ARE NOT ENTITLED TO ANNUAL LEAVE AT THE RATE OF 2 1/2 DAYS PER MONTH, AND IF THEY MUST BE CLASSED AS "INTERMITTENT EMPLOYEES" WITHIN THE MEANING OF SECTION 19 (F) (3) OF THE REGULATIONS, SUPRA, THEY ARE NOT ENTITLED TO ANY ANNUAL LEAVE.

THE PROVISION IN THE QUOTED REGULATIONS THAT "INTERMITTENT EMPLOYEES" ARE NOT ENTITLED TO LEAVE IS LIMITED TO THOSE WHO ARE "NOT REQUIRED TO BE CONTINUOUSLY EMPLOYED DURING REGULAR TOUR OF TY.' HENCE, EMPLOYEES WHO ARE APPOINTED ON A FULL-TIME BASIS FOR AN INDEFINITE PERIOD BUT WHOSE WORK THEREUNDER IS PERFORMED PERIODICALLY BY BEING REQUIRED TO SERVE CONTINUOUSLY DURING REGULAR TOURS OF DUTY OF 1 MONTH OR MORE SEPARATED BY PERIODS OF LAY-OFF OR FURLOUGH WITHOUT PAY DUE TO LACK OF WORK, NONAVAILABILITY OF FUNDS, ETC., ARE TO BE REGARDED FOR LEAVE PURPOSES NOT AS INTERMITTENT EMPLOYEES BUT AS PERMANENT EMPLOYEES. ACCORDINGLY, IF SUCH ARE THE CONDITIONS OF EMPLOYMENT OF MR. POWELL AND OTHERS REFERRED TO IN YOUR LETTER THEY MAY BE CREDITED WITH LEAVE WITH PAY AT THE RATE OF 2 1/6 DAYS FOR EACH FULL MONTH OF SERVICE. THIS, OF COURSE, DOES NOT APPLY TO EMPLOYEES WHO ARE TO BE PAID ONLY WHEN ACTUALLY EMPLOYED.