A-98734, OCTOBER 31, 1938, 18 COMP. GEN. 400

A-98734: Oct 31, 1938

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IS NOT ENTITLED TO CREDIT OF 2 1/6 DAYS OF ANNUAL LEAVE. ANNUAL LEAVE MAY NOT BE GRANTED IN ADVANCE OF ITS ACCRUAL TO INDEFINITE PER DIEM "WHEN ACTUALLY EMPLOYED" EMPLOYEES WHO HAVE COMPLETED ONE OR MORE MONTHS OF CONTINUOUS SERVICE WITH OR WITHOUT A BREAK IN SERVICE IN VIEW OF THE LAST SENTENCE OF SECTION 5 OF THE ANNUAL LEAVE REGULATIONS EFFECTIVE JANUARY 1. WHO WAS IN A NON-DUTY OR NON-PAY STATUS ON MARCH 16. ASSUMING THAT NO OTHER LEAVE WAS TAKEN DURING THE PERIOD INVOLVED. IS AS FOLLOWS: MANY QUESTIONS HAVE ARISEN IN THIS OFFICE WITH REGARD TO LEAVE OR INDEFINITE EMPLOYEES APPOINTED AT A PER DIEM RATE WHEN ACTUALLY EMPLOYED. WE ARE REFERRING THESE QUESTIONS TO YOU FOR DECISION. 1. IT IS NOTED THAT SECTION 6 OF THE CURRENT ANNUAL LEAVE REGULATIONS AND SECTION 9 OF THE CURRENT SICK LEAVE REGULATIONS CONTAIN THE FOLLOWING STATEMENT: "BREAK IN SERVICE" MEANS SEPARATION FROM THE SERVICE FOR A PERIOD OF ONE OR MORE WORK DAYS.'.

A-98734, OCTOBER 31, 1938, 18 COMP. GEN. 400

LEAVES OF ABSENCE - ANNUAL AND SICK - ACTS, MARCH 14, 1936 - INDEFINITE PER DIEM EMPLOYEES - BREAK IN SERVICE, ADVANCES, AND SUBSTITUTION FOR ABSENCE IN NON-PAY STATUS AN INDEFINITE EMPLOYEE PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS, WHO HAS BEEN CONTINUOUSLY EMPLOYED FOR ONE MONTH (FEBRUARY 6 TO MARCH 5, INCLUSIVE), BUT HAS WORKED AND BEEN PAID FOR ONLY PART OF A DAY ON ONE OR MORE WORK DAYS IN THAT PERIOD, IS NOT ENTITLED TO CREDIT OF 2 1/6 DAYS OF ANNUAL LEAVE, AS FOR A MONTH'S CONTINUOUS SERVICE, ON THE BASIS THAT HE HAS WORKED ALL OR A PART OF EVERY REGULAR WORK DAY DURING THE PERIOD, AND THE TERM "BREAK IN SERVICE" AS USED IN THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, HAS NO APPLICATION TO SUCH CASES. ANNUAL LEAVE MAY NOT BE GRANTED IN ADVANCE OF ITS ACCRUAL TO INDEFINITE PER DIEM "WHEN ACTUALLY EMPLOYED" EMPLOYEES WHO HAVE COMPLETED ONE OR MORE MONTHS OF CONTINUOUS SERVICE WITH OR WITHOUT A BREAK IN SERVICE IN VIEW OF THE LAST SENTENCE OF SECTION 5 OF THE ANNUAL LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, BUT, AS SECTION 4 OF THE SICK LEAVE REGULATIONS EFFECTIVE THAT DATE, PROHIBITS THE ADVANCE OF SICK LEAVE TO TEMPORARY EMPLOYEES ONLY, SICK LEAVE MAY BE ADVANCED TO INDEFINITE EMPLOYEES WITHIN THE LIMITATIONS AND SUBJECT TO THE TERMS AND CONDITIONS OF THE SAID REGULATIONS. AS INDEFINITE PER DIEM "WHEN ACTUALLY EMPLOYED" EMPLOYEE, WITHOUT OTHER LEAVE TO HIS CREDIT, WHO HAS BEEN CONTINUOUSLY EMPLOYED FOR 27 5/6 DAYS OF A 30-DAY MONTH, MAY BE GRANTED, AS IN ANTICIPATION OF ONE MONTH'S CONTINUOUS SERVICE, NOT TO EXCEED 2 1/6 DAYS ANNUAL LEAVE AT THE LAST OF THE MONTH--- FOR EXAMPLE, 1/6 OF A DAY ON JUNE 28 AND FULL DAYS FOR JUNE 29 AND 30--- THE LEAVE REGULATIONS AUTHORIZING LEAVE ACCRUAL WHILE IN A LEAVE-WITH-PAY STATUS. AN INDEFINITE PER DIEM "WHEN ACTUALLY EMPLOYED" EMPLOYEE CONTINUOUSLY EMPLOYED ON ALL WORK DAYS FROM FEBRUARY 1, 1938 TO MARCH 15, 1938, INCLUSIVE, WHO WAS IN A NON-DUTY OR NON-PAY STATUS ON MARCH 16, 1938, AND, THEREAFTER CONTINUOUSLY EMPLOYED TO THE CLOSE OF BUSINESS ON MARCH 31, 1938, MAY BE GRANTED ANNUAL LEAVE, EITHER BEFORE OR AFTER MARCH 16, 1938, TO COVER THE PERIOD OF ABSENCE ON THAT DATE IF THE EMPLOYEE HAD REMAINING TO HIS CREDIT ON MARCH 15 EARNED ANNUAL LEAVE TO THE AMOUNT OF ONE DAY OR MORE, BUT AS THE ONE DAY'S LEAVE GRANTED FOR MARCH 16 WOULD BE CHARGED AGAINST THE 4 1/3 DAYS' LEAVE WHICH ACCRUED FOR THE TWO MONTHS, THERE WOULD REMAIN, ASSUMING THAT NO OTHER LEAVE WAS TAKEN DURING THE PERIOD INVOLVED, A NET LEAVE CREDIT FOR THE TWO MONTHS OF ONLY 3 1/3 DAYS--- NOT 4 1/3 DAYS AS ADMINISTRATIVELY STATED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE GOVERNOR, FARM CREDIT ADMINISTRATION, OCTOBER 31, 938:

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

MANY QUESTIONS HAVE ARISEN IN THIS OFFICE WITH REGARD TO LEAVE OR INDEFINITE EMPLOYEES APPOINTED AT A PER DIEM RATE WHEN ACTUALLY EMPLOYED. WE ARE REFERRING THESE QUESTIONS TO YOU FOR DECISION.

1. IF SUCH AN INDEFINITE PER DIEM EMPLOYEE HAD BEEN CONTINUOUSLY EMPLOYED FOR ONE MONTH (AS FOR EXAMPLE, ON ALL THE WORK DAYS FROM FEBRUARY 6 TO MARCH 5, INCLUSIVE) BUT HAD WORKED AND BEEN PAID FOR ONLY PART OF A DAY ON ONE OR MORE REGULAR WORK DAYS IN THAT PERIOD (AS FOR EXAMPLE, 1/2 DAY ON THURSDAY, FEBRUARY 21), WOULD HE BE ENTITLED TO CREDITS OF 2 1/6 DAYS OF ANNUAL LEAVE ON THE BASIS THAT HE HAD WORKED ALL OR A PART OF EVERY REGULAR WORK DAY DURING THE PERIOD? IN THIS CONNECTION, IT IS NOTED THAT SECTION 6 OF THE CURRENT ANNUAL LEAVE REGULATIONS AND SECTION 9 OF THE CURRENT SICK LEAVE REGULATIONS CONTAIN THE FOLLOWING STATEMENT: "BREAK IN SERVICE" MEANS SEPARATION FROM THE SERVICE FOR A PERIOD OF ONE OR MORE WORK DAYS.' IN SUCH SECTIONS OF THE REGULATIONS, THE TERM "BREAK IN SERVICE" RELATES TO THE CONTINUITY OF EMPLOYMENT WHERE THE POINT AT ISSUE IS THE TRANSFER OF LEAVE. IT IS NOT CLEAR TO US WHETHER, BY EXTENTION, THE TERM "BREAK IN SERVICE ON WHICH LEAVE FOR INDEFINITE PER DIEM EMPLOYEES IS COMPUTED" SHOULD BE CONSTRUED TO MEAN A BREAK OF ONE OR MORE WHOLE WORK DAYS.

2. IF QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE, WOULD SECTION 10 OF THE CURRENT ANNUAL LEAVE REGULATIONS AND SECTION 10 OF THE CURRENT SICK LEAVE REGULATIONS OPERATE SO THAT, WHEN PARTIAL DAY ABSENCES WITHOUT PAY AMOUNTED IN THE AGGREGATE TO 30 DAYS OR MORE, THE ACCUMULATION OF LEAVE WOULD BE AFFECTED AS PROVIDED IN SUCH SECTIONS?

3. MAY ANNUAL OR SICK LEAVE BE GRANTED IN ADVANCE OF ITS ACCRUAL TO SUCH AN INDEFINITE PER DIEM EMPLOYEE, WHO HAS COMPLETED ONE OR MORE MONTHS OF CONTINUOUS SERVICE WITH OR WITHOUT A BREAK IN SERVICE?

4. IF SUCH AN INDEFINITE PER DIEM EMPLOYEE WITHOUT OTHER LEAVE TO HIS CREDIT, HAD BEEN CONTINUOUSLY EMPLOYED FOR 27 5/6 DAYS OF A 30-DAY MONTH (AS FOR EXAMPLE, FROM JUNE 1 TO 5/6 OF A DAY ON JUNE 28 INCLUSIVE), COULD THE ANNUAL LEAVE TO WHICH HE WOULD BE ENTITLED FOR ONE MONTH'S CONTINUOUS SERVICE BE ANTICIPATED BY GRANTING HIM NOT TO EXCEED 2 1/6 DAYS' ANNUAL LEAVE AT THE LAST OF THE MONTH (AS FOR EXAMPLE, ANNUAL LEAVE FOR 1/6 OF A DAY ON JUNE 28 AND FOR JUNE 29, AND JUNE 30), WITH THE RESULT THAT HE WOULD THEN HAVE BEEN IN A PAY STATUS FOR A CONTINUOUS PERIOD OF ONE MONTH AND THUS ENTITLED TO 2 1/6 DAYS OF ANNUAL LEAVE? IN THIS CONNECTION, YOUR ATTENTION IS CALLED TO THE PRACTICE, WHICH IS BELIEVED TO BE COMMON TO ALL GOVERNMENT OFFICES, OF GRANTING TO TEMPORARY EMPLOYEES WHOSE APPOINTMENTS ARE LIMITED TO ONE MONTH (AND WHO, UNDER THE LEAVE REGULATIONS, ARE ENTITLED TO 2 1/2 DAYS' ANNUAL LEAVE ONLY AFTER THEY HAVE COMPLETED A MONTH OF SERVICE) ANNUAL LEAVE ON THE LAST 2 1/2 DAYS OF THEIR EMPLOYMENT.

5. IF SUCH AN INDEFINITE PER DIEM EMPLOYEE HAD BEEN CONTINUOUSLY EMPLOYED ON ALL THE WORK DAYS FROM FEBRUARY 1, 1938, TO MARCH 15, 1938, INCLUSIVE AND WAS IN A NON-DUTY AND NON-PAY STATUS ON MARCH 16, 1938,AND WAS, THEREAFTER, CONTINUOUSLY EMPLOYED TO THE CLOSE OF BUSINESS ON MARCH 31, 1938, WOULD IT BE PERMITTED AT SOME LATER DATE, PROVIDED HE IS STILL CARRIED ON THE ROLLS AS AN INDEFINITE EMPLOYEE, TO GRANT HIM ANNUAL LEAVE FOR MARCH 16, 1938, FROM LEAVE EARNED DURING THE MONTH OF FEBRUARY 1938 AND THUS BRIDGE THE TWO PERIODS OF CONTINUOUS SERVICE, WITH THE RESULT THAT PAY WOULD THEN HAVE BEEN CONTINUOUS FROM FEBRUARY 1 TO THE CLOSE OF BUSINESS ON MARCH 31, AND THE EMPLOYEE WOULD THUS BE ENTITLED TO 2 TIMES 2 1/6 OR 4 1/3 DAYS OF ANNUAL LEAVE INSTEAD OF 1 1/2 TIMES 2 1/6 OR 3 1/4 DAYS OF ANNUAL LEAVE FOR THAT PERIOD? IN THIS CONNECTION, YOUR ATTENTION IS CALLED TO THE FOLLOWING DECISIONS: 19 COMP. DEC. 536, 537; 7 COMP. GEN. 732; AND 16 COMP. GEN. 818.

THE ANSWERS TO SOME OF THESE QUESTIONS WILL HAVE A BEARING ON THE LEAVE AND PAY RECORDS OF A NUMBER OF EMPLOYEES WHOSE APPOINTMENTS WILL SHORTLY BE TERMINATED. YOUR EARLY CONSIDERATION OF THESE MATTERS WOULD, THEREFORE, BE APPRECIATED.

IN DECISION OF MAY 27, 1938, 17 COMP. GEN. 1017, WHEREIN WAS CONSIDERED THE LEAVE RIGHTS OF INDEFINITE EMPLOYEES PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED," IT WAS SPECIFICALLY HELD THAT ANNUAL AND SICK LEAVE MAY BE CREDITED TO SUCH EMPLOYEES ONLY FOR PERIODS OF CONTINUOUS SERVICE OF ONE MONTH OR MORE AND THAT LEAVE MAY NOT BE CREDITED FOR LESS THAN ONE MONTH OF CONTINUOUS SERVICE. IN APPLYING THIS RULE CONTINUOUS SERVICE OF SUCH EMPLOYEES MEANS AN ACTUAL PAY OR DUTY STATUS DURING THE ENTIRE DAILY TOUR OF DUTY ON EVERY WORK DAY OF THE MONTH. THE DEFINITION OF THE TERM "BREAK IN SERVICE" APPEARING IN SECTION 6 OF THE ANNUAL LEAVE REGULATIONS AND SECTION 9 OF THE SICK LEAVE REGULATIONS HAS NO APPLICATION IN COMPUTING CONTINUOUS SERVICE OF INDEFINITE EMPLOYEES IN THE SAME POSITION. WHILE IN THE EXAMPLE GIVEN IN YOUR FIRST QUESTION THE INDEFINITE EMPLOYEE LOST ONLY ONE HALF DAY DURING THE MONTH, SUCH A RULE AS YOU SUGGEST OF CREDITING 2 1/6 DAYS' LEAVE TO INDEFINITE EMPLOYEES WHO WORK A PART OF EACH WORK DAY DURING THE MONTH MIGHT RESULT IN THE ALLOWANCE OF 2 1/6 DAYS' LEAVE WITH PAY TO AN INDEFINITE EMPLOYEE PAID ON THE BASIS OF ,WHEN ACTUALLY EMPLOYED" WHO HAD WORKED ONLY ONE HOUR ON EACH OF THE 26 OR LESS REGULAR WORKING DAYS DURING A MONTH, OR A TOTAL OF 26 HOURS OR LESS OF ACTUAL SERVICE. THIS IS NOT AUTHORIZED BY THE ANNUAL LEAVE LAW AND THE REGULATIONS. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTION 2.

AS TO ANNUAL LEAVE, QUESTION 3 IS ANSWERED IN THE NEGATIVE. SEE THE LAST SENTENCE OF SECTION 5 OF THE ANNUAL LEAVE REGULATIONS. AS THE SICK LEAVE REGULATIONS (SECTION 4) PROHIBITS THE ADVANCE OF SICK LEAVE TO TEMPORARY EMPLOYEES ONLY, SICK LEAVE MAY BE ADVANCED TO INDEFINITE EMPLOYEES WITHIN THE LIMITATIONS AND SUBJECT TO THE TERMS AND CONDITIONS OF THE SICK LEAVE REGULATIONS.

QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE, IT BEING NOTED THAT UNDER THE LEAVE REGULATIONS ANNUAL AND SICK LEAVE ACCRUE WHILE IN LEAVE-WITH PAY STATUS.

WITH REFERENCE TO QUESTION 5, SINCE DECISIONS OF THIS OFFICE HAVE RECOGNIZED THE RIGHT OF AN ADMINISTRATIVE OFFICE, IN ITS DISCRETION, TO GRANT RETROACTIVELY ANNUAL LEAVE WITH PAY TO THE CREDIT OF AN EMPLOYEE TO COVER A PERIOD OF ABSENCE ON LEAVE OR FURLOUGH WITHOUT PAY, I HAVE TO ADVISE THAT IF IN THE SITUATION SET FORTH IN SAID QUESTION 5, THE EMPLOYEE HAD REMAINING TO HIS CREDIT ON MARCH 15 EARNED ANNUAL LEAVE TO THE AMOUNT OF ONE DAY OR MORE, IT WOULD BE WITHIN ADMINISTRATIVE DISCRETION TO GRANT- -- EITHER BEFORE OR AFTER MARCH 16--- LEAVE WITH PAY TO COVER MARCH 16, THUS MAKING HIS SERVICE CONTINUOUS FOR LEAVE ACCRUAL PURPOSES FROM FEBRUARY 1 TO MARCH 31. HOWEVER, IF ONE DAY'S LEAVE WHICH HAD PREVIOUSLY BEEN EARNED WAS SUBSTITUTED FOR MARCH 16 WHEN THE EMPLOYEE WAS IN A NONPAY STATUS, THERE WOULD BE REMAINING (ASSUMING THAT NO OTHER LEAVE WAS TAKEN DURING THE PERIOD INVOLVED) A NET LEAVE CREDIT FOR THE TWO MONTHS OF FEBRUARY AND MARCH OF ONLY 3 1/2 DAYS--- NOT 4 1/3 DAYS AS YOU STATE. THAT IS TO SAY, THE ONE DAY'S LEAVE GRANTED FOR MARCH 16 WOULD BE CHARGED AGAINST THE 4 1/3 DAYS' LEAVE WHICH ACCRUED FOR THE TWO MONTHS. WITH THIS MODIFICATION, QUESTION 5 IS ANSWERED IN THE AFFIRMATIVE.