A-95110, MAY 27, 1938, 17 COMP. GEN. 1017

A-95110: May 27, 1938

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OR IS ON CALL FOR DUTY WHEN NEEDED. IS REQUIRED TO BE IN READINESS FOR CALL TO WORK AT ANY TIME. IS AN "INDEFINITE EMPLOYEE" WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1. WHO RENDER CONTINUOUS SERVICE FOR AT LEAST 1 MONTH AND ARE NOT THEREAFTER CONTINUOUSLY EMPLOYED BUT REQUIRED TO BE IN READINESS TO RENDER SERVICE WHEN NEEDED. ARE NOT ENTITLED TO ANNUAL OR SICK LEAVE FOR THE PERIOD WHEN NOT CONTINUOUSLY EMPLOYED. ARE EMPLOYED CONTINUOUSLY FOR AT LEAST 1 MONTH. ARE NOT ENTITLED TO ANNUAL OR SICK LEAVE FOR THE PERIOD WHEN NOT CONTINUOUSLY EMPLOYED. ARE NOT ENTITLED TO ANNUAL OR SICK LEAVE FOR SUCH SHORTER PERIODS. ARE NOT ENTITLED TO ANNUAL OR SICK LEAVE FOR SUCH SHORTER PERIODS.

A-95110, MAY 27, 1938, 17 COMP. GEN. 1017

LEAVES OF ABSENCE - ANNUAL AND SICK - ACTS, MARCH 14, 1936 - "INDEFINITE EMPLOYEES" THE PHRASE "REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN 1 MONTH" AS USED IN THE DEFINITION OF "INDEFINITE EMPLOYEES" IN THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, MEANS THE MINIMUM PERIOD THE EMPLOYEES SERVES, OR IS ON CALL FOR DUTY WHEN NEEDED, MUST NOT BE LESS THAN 1 MONTH, BUT THE PHRASE DOES NOT MEAN THAT ANNUAL OR SICK LEAVE MAY BE CREDITED TO AN EMPLOYEE FOR LAY OFF OR FURLOUGH PERIODS WITHOUT PAY OR FOR PERIODS OF CONTINUOUS SERVICE OF LESS THAN 1 MONTH. ANNUAL AND SICK LEAVE MAY BE CREDITED TO "INDEFINITE EMPLOYEES" ONLY FOR PERIODS OF CONTINUOUS SERVICE OF 1 MONTH OR MORE WHICH MAY BE CARRIED OVER FROM ONE SUCH PERIOD OF CONTINUOUS SERVICE TO ANOTHER. AN EMPLOYEE EMPLOYED ON A "WHEN ACTUALLY EMPLOYED" BASIS FOR A PERIOD OF 1 MONTH OR MORE, WHO, ALTHOUGH NOT CONTINUOUSLY EMPLOYED FOR A MONTH AT ANY TIME, IS REQUIRED TO BE IN READINESS FOR CALL TO WORK AT ANY TIME, IS AN "INDEFINITE EMPLOYEE" WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, BUT UNLESS HE SERVED CONTINUOUSLY FOR AT LEAST 1 MONTH AT SOME TIME HE WOULD NEVER ACCRUE ANY ANNUAL OR SICK LEAVE. "INDEFINITE EMPLOYEES" EMPLOYED ON A "WHEN ACTUALLY EMPLOYED" BASIS FOR MORE THAN 1 MONTH, WHO RENDER CONTINUOUS SERVICE FOR AT LEAST 1 MONTH AND ARE NOT THEREAFTER CONTINUOUSLY EMPLOYED BUT REQUIRED TO BE IN READINESS TO RENDER SERVICE WHEN NEEDED, ARE NOT ENTITLED TO ANNUAL OR SICK LEAVE FOR THE PERIOD WHEN NOT CONTINUOUSLY EMPLOYED. "INDEFINITE EMPLOYEES" EMPLOYED ON A "WHEN ACTUALLY EMPLOYED" BASIS FOR MORE THAN 1 MONTH, WHO, AFTER A TIME OF BEING REQUIRED TO BE IN READINESS FOR SERVICE, ALTHOUGH NOT CONTINUOUSLY EMPLOYED, ARE EMPLOYED CONTINUOUSLY FOR AT LEAST 1 MONTH, ARE NOT ENTITLED TO ANNUAL OR SICK LEAVE FOR THE PERIOD WHEN NOT CONTINUOUSLY EMPLOYED. "INDEFINITE EMPLOYEES" EMPLOYED ON A "WHEN ACTUALLY EMPLOYED" BASIS FOR MORE THAN 1 MONTH, WHO, AFTER RENDERING SERVICE CONTINUOUSLY FOR AT LEAST 1 MONTH, RENDER SERVICE AT INTERVALS FOR DEFINITE PERIODS OF LESS THAN 1 MONTH, ARE NOT ENTITLED TO ANNUAL OR SICK LEAVE FOR SUCH SHORTER PERIODS. "INDEFINITE EMPLOYEES" EMPLOYED ON A "WHEN ACTUALLY EMPLOYED" BASIS FOR MORE THAN 1 MONTH, WHO, AFTER RENDERING SERVICE AT INTERVALS FOR DEFINITE PERIODS OF LESS THAN 1 MONTH, THEREAFTER RENDER SERVICE CONTINUOUSLY FOR AT LEAST 1 MONTH, ARE NOT ENTITLED TO ANNUAL OR SICK LEAVE FOR SUCH SHORTER PERIODS.

ACTION COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, MAY 27, 1938:

YOUR LETTER OF MAY 21, 1938, IS AS FOLLOWS:

NUMEROUS QUESTIONS HAVE ARISEN IN THIS DEPARTMENT WITH REFERENCE TO THE DEFINITION OF ,INDEFINITE EMPLOYEES" AS CONTAINED IN EXECUTIVE ORDERS NOS. 7845 AND 7846, PRESCRIBING ANNUAL AND SICK LEAVE REGULATIONS, IS AS FOLLOWS:

SUBSECTION 1 (E) OF THE ANNUAL-LEAVE REGULATIONS IS AS FOLLOWS:

" "INDEFINITE EMPLOYEES" ARE THOSE APPOINTED FOR THE "DURATION OF THE JOB" AND THOSE WHO, ALTHOUGH PAID ONLY WHEN ACTUALLY EMPLOYED, ARE CONTINUOUSLY EMPLOYED OR REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN ONE MONTH, AS DISTINGUISHED FROM PART-TIME OR INTERMITTENT EMPLOYEES.'

SUBSECTION 1 (E) OF THE SICK-LEAVE REGULATIONS IS TO THE SAME EFFECT.

SECTION 5 OF THE ANNUAL-LEAVE REGULATIONS PROVIDES, IN PART:

"EMERGENCY AND INDEFINITE EMPLOYEES SHALL BE ENTITLED TO ANNUAL LEAVE WITH PAY ACCRUING AT THE RATE OF 2 1/6 DAYS PER MONTH FOR EACH MONTH OF SERVICE, AND MAY IN ADDITION THERETO BE GRANTED ACCUMULATED LEAVE.'

SECTION 3 OF THE SICK-LEAVE REGULATIONS PROVIDES, IN PART:

"EXCEPT AS PROVIDED IN SECTION 4 HEREOF, EMPLOYEES SHALL BE ENTITLED TO SICK LEAVE AT THE RATE OF 1 1/4 DAYS A MONTH, AND IF SUCH LEAVE IS NOT USED IT SHALL ACCUMULATE: * * *"

IN THE LIGHT OF THESE REGULATIONS, YOUR DECISION ON THE FOLLOWING QUESTIONS IS REQUESTED:

(1) WHAT IS THE MEANING OF THE PHRASE "REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN ONE MONTH," AS USED IN THE DEFINITION OF "INDEFINITE EMPLOYEES," QUOTED ABOVE?

(2) WHERE AN EMPLOYEE IS EMPLOYED ON A "WHEN ACTUALLY EMPLOYED" BASIS FOR A PERIOD OF ONE MONTH OR MORE, AND, ALTHOUGH NOT CONTINUOUSLY EMPLOYED FOR A MONTH AT ANY TIME, IS REQUIRED TO BE IN READINESS FOR CALL TO WORK AT ANY TIME, IS HE AN "INDEFINITE EMPLOYEE" WITHIN THE MEANING OF THE LEAVE REGULATIONS?

(3) IF THE ANSWER TO QUESTION (2) IS IN THE AFFIRMATIVE, IS THE EMPLOYEE TO RECEIVE THE MONTHLY QUOTA OF LEAVE FOR EACH MONTH OF HIS AVAILABILITY FOR DUTY, OR IS A MONTHLY QUOTA OF LEAVE TO ACCRUE ONLY AS A COMPLETE MONTH OF SERVICE IS RENDERED, ALTHOUGH MORE THAN ONE MONTH IS REQUIRED FOR THE RENDERING OF SUCH SERVICES?

(4) WHERE AN EMPLOYEE IS EMPLOYED ON A "WHEN ACTUALLY EMPLOYED" BASIS FOR MORE THAN ONE MONTH AND, AFTER RENDERING SERVICE CONTINUOUSLY FOR AT LEAST ONE MONTH, IS NOT THEREAFTER CONTINUOUSLY EMPLOYED, BUT IS REQUIRED TO BE IN READINESS TO RENDER SERVICE WHEN NEEDED, IS HE ENTITLED TO LEAVE FOR THE PERIOD WHEN NOT CONTINUOUSLY EMPLOYED?

(5) WHERE AN EMPLOYEE IS EMPLOYED ON A "WHEN ACTUALLY EMPLOYED" BASIS FOR MORE THAN ONE MONTH AND, AFTER A TIME OF BEING REQUIRED TO BE IN READINESS FOR SERVICE, ALTHOUGH NOT CONTINUOUSLY EMPLOYED, IS EMPLOYED CONTINUOUSLY FOR AT LEAST ONE MONTH, IS HE ENTITLED TO ANY LEAVE FOR THE PERIOD WHEN NOT CONTINUOUSLY EMPLOYED?

(7) WHERE AN EMPLOYEE IS EMPLOYED ON A "WHEN ACTUALLY EMPLOYED" BASIS FOR MORE THAN ONE MONTH AND, AFTER RENDERING SERVICE CONTINUOUSLY FOR AT LEAST ONE MONTH, THEREAFTER RENDERS SERVICE AT INTERVALS FOR DEFINITE PERIODS OF LESS THAN ONE MONTH, IS HE ENTITLED TO LEAVE FOR SUCH SHORTER PERIODS?

(7)WHERE AN EMPLOYEE IS EMPLOYED ON A "WHEN ACTUALLY EMPLOYED" BASIS FOR MORE THAN ONE MONTH AND, AFTER RENDERING SERVICE AT INTERVALS FOR DEFINITE PERIODS OF LESS THAN ONE MONTH, THEREAFTER RENDERS SERVICE CONTINUOUSLY FOR AT LEAST ONE MONTH, IS HE ENTITLED TO LEAVE FOR SUCH SHORTER PERIODS?

(8) IF THE ANSWER TO ANY ONE OR ALL OF QUESTIONS (4), (5), (6), OR (7) IS IN THE AFFIRMATIVE, HOW IS LEAVE FOR THE PERIOD IN WHICH THE EMPLOYEE IS NOT CONTINUOUSLY EMPLOYED FOR AT LEAST ONE MONTH TO BE CALCULATED IN EACH CASE?

INASMUCH AS URGENT REQUESTS ARE BEING RECEIVED FROM FIELD OFFICES OF THE DEPARTMENT FOR A CLARIFICATION OF THESE MATTERS, IT IS REQUESTED THAT YOUR REPLY BE EXPEDITED.

THE ANNUAL AND SICK-LEAVE REGULATIONS IN FORCE PRIOR TO JANUARY 1, 1938, EXCLUDED FROM THE BENEFITS OF LEAVE "EMPLOYEES WHO ARE PAID ONLY WHEN ACTUALLY EMPLOYED," AND "PART-TIME OR INTERMITTENT EMPLOYEES.' SEE SECTION 19 (F) (1) AND (3) OF THE ANNUAL LEAVE REGULATIONS AND SECTION 22 (G) (1) AND (3) OF THE SICK-LEAVE REGULATIONS. SECTION 4 OF THE SAME ANNUAL-LEAVE REGULATIONS RECOGNIZED A CLASS OF "EMPLOYEES APPOINTED FOR AN INDEFINITE PERIOD" TO INCLUDE "THOSE IN THE FIELD SERVICE EMPLOYED IN MANUFACTURING AND REPAIR ESTABLISHMENTS, SUCH AS NAVY YARDS, GUN FACTORIES, NAVAL STATIONS, ARSENALS, ETC.' APPLICATION OF THOSE REGULATIONS EXCLUDED FROM THE BENEFITS OF LEAVE SOME EMPLOYEES WHO COULD HAVE BEEN GRANTED LEAVE UNDER THE TERMS OF THE CONTROLLING STATUTE, THAT IS, THOSE WHO ARE EMPLOYED FOR THE DURATION OF A JOB THE TERMINATION OF WHICH IS UNCERTAIN, PAID ON THE BASIS OF "ONLY WHEN ACTUALLY EMPLOYED," OR OTHERS APPOINTED FOR INDEFINITE PERIODS, PAID ON THE BASIS OF "ONLY WHEN ACTUALLY EMPLOYED," WHO ARE SUBJECT TO LAY-OFFS OR FURLOUGHS WITHOUT PAY DUE TO LACK OF WORK, WEATHER CONDITIONS, NONAVAILABILITY OF FUNDS, OR OTHER REASONS INHERENT IN THE WORK, THE EMPLOYEES BEING REQUIRED TO KEEP THEMSELVES AVAILABLE FOR DUTY IF NEEDED DURING THE LAY-OFF PERIODS.

THE NEW ANNUAL AND SICK-LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, DO NOT EXCLUDE EMPLOYEES WHO ARE PAID ON THE BASIS OF "ONLY WHEN ACTUALLY EMPLOYED" BUT DO EXCLUDE PART-TIME OR INTERMITTENT EMPLOYEES. SEE SECTION 19 (F) (2) OF THE ANNUAL-LEAVE REGULATIONS AND SECTION 23 (G) (2) OF THE SICK-LEAVE REGULATIONS.

REFERRING TO QUESTION (1) THE APPARENT PURPOSE OF THE DEFINITION OF INDEFINITE EMPLOYEES WAS PRIMARILY TO DISTINGUISH BETWEEN EMPLOYEES WHO ARE REQUIRED TO BE AVAILABLE FOR DUTY DURING THE PERIOD OF THEIR INDEFINITE APPOINTMENTS ALTHOUGH PAID "ONLY WHEN ACTUALLY EMPLOYED," AND PART-TIME OR INTERMITTENT EMPLOYEES WHO ARE NOT REQUIRED TO BE AVAILABLE FOR DUTY EXCEPT DURING THE TIME THEY ACTUALLY WORK. THE FOLLOWING IS QUOTED FROM 16 COMP. GEN. 678, 680---

* * * 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. * * *

UNDER THE DEFINITION IN QUESTION IN THE NEW LEAVE REGULATIONS THIS CLASS OF EMPLOYEES IS NOW DESIGNATED AS "INDEFINITE" RATHER THAN "PERMANENT.' THE PHRASE IN THE DEFINITION OF INDEFINITE EMPLOYEES "REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN 1 MONTH" SHOULD BE READ IN CONNECTION WITH THE PRECEDING WORDS "CONTINUOUSLY EMPLOYED," AND SIMPLY MEANS THAT TO BE CLASSED AS AN INDEFINITE EMPLOYEE THE MINIMUM PERIOD THE EMPLOYEE SERVES OR IS ON CALL FOR DUTY WHEN NEEDED MUST NOT BE LESS THAN 1 MONTH, BUT THE PHRASE DOES NOT MEAN THAT ANNUAL OR SICK LEAVE MAY BE CREDITED TO AN EMPLOYEE FOR LAY-OFF OR FURLOUGH PERIODS WITHOUT PAY OR FOR PERIODS OF CONTINUOUS SERVICE OF LESS THAN 1 MONTH. THE DEFINITION STANDING ALONE DOES NOT GRANT LEAVE BUT MUST BE CONSIDERED IN CONNECTION WITH THE STATUTES AND THE OTHER SECTIONS OF THE REGULATIONS. ANNUAL AND SICK LEAVE MAY BE CREDITED TO INDEFINITE EMPLOYEES ONLY FOR PERIODS OF CONTINUOUS SERVICE OF 1 MONTH OR MORE WHICH MAY BE CARRIED OVER FROM ONE SUCH PERIOD OF CONTINUOUS SERVICE TO ANOTHER. SEE THE DECISION, SUPRA, AND SECTIONS 5 AND 3 OF THE NEW ANNUAL AND SICK-LEAVE REGULATIONS, RESPECTIVELY, QUOTED IN YOUR LETTER.

THE EMPLOYEE DESCRIBED IN QUESTIONS (2) AND (3) MIGHT BE CLASSED AS AN INDEFINITE EMPLOYEE, BUT UNLESS HE SERVED CONTINUOUSLY FOR AT LEAST 1 MONTH AT SOME TIME HE WOULD NEVER ACCRUE ANY ANNUAL OR SICK LEAVE. LEAVE MAY NOT BE CREDITED TO INDEFINITE EMPLOYEES FOR LESS THAN 1 MONTH OF CONTINUOUS SERVICE.

QUESTIONS (4), (5), (6), AND (7) ARE ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTION (8).