A-98989, NOVEMBER 17, 1938, 18 COMP. GEN. 457

A-98989: Nov 17, 1938

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

EFFECT OF APPOINTMENT WORDING ON LEAVE RIGHTS THE WORDING OF AN EMPLOYEE'S APPOINTMENT IS NOT NECESSARILY DETERMINATIVE OF HIS RIGHT TO ANNUAL AND SICK LEAVE UNDER THE ACTS OF MARCH 14. - WHETHER OR NOT IT IS ADMINISTRATIVE POLICY AND NOT TO CONSIDER THESE EMPLOYEES AS "REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN 1 MONTH". - IS PRESUMED TO BE AVAILABLE FOR DUTY WHENEVER CALLED. SUCH EMPLOYEE IS AN INDEFINITE EMPLOYEE AND ENTITLED TO ANNUAL AND SICK LEAVE UNDER THE ACTS OF MARCH 14. A STATEMENT IN THE APPOINTMENT THAT THE APPOINTEE IS NOT REQUIRED TO BE AVAILABLE FOR DUTY AT ANY TIME WOULD NOT REMOVE HIM FROM THE CLASS OF INDEFINITE EMPLOYEES. IF THE APPOINTMENT IS LIMITED TO A DEFINITE PERIOD OF LESS THAN 6 MONTHS THE EMPLOYEE IS A TEMPORARY EMPLOYEE.

A-98989, NOVEMBER 17, 1938, 18 COMP. GEN. 457

LEAVES OF ABSENCE - ANNUAL AND SICK - ACTS, MARCH 14, 1936 - INTERMITTENT, PART-TIME, AND INDEFINITE EMPLOYEES, AND EFFECT OF APPOINTMENT WORDING ON LEAVE RIGHTS THE WORDING OF AN EMPLOYEE'S APPOINTMENT IS NOT NECESSARILY DETERMINATIVE OF HIS RIGHT TO ANNUAL AND SICK LEAVE UNDER THE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, RESPECTIVELY, AND THE APPLICABLE REGULATIONS ISSUED THEREUNDER IF HIS ACTUAL SERVICE DIFFERS FROM THAT INDICATED IN THE APPOINTMENT. 16 COMP. GEN. 442. AN EMPLOYEE GIVEN AN APPOINTMENT FOR AN INDEFINITE PERIOD WITH COMPENSATION AT PER DIEM RATES WHEN ACTUALLY EMPLOYED--- WHETHER OR NOT IT IS ADMINISTRATIVE POLICY AND NOT TO CONSIDER THESE EMPLOYEES AS "REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN 1 MONTH"--- IS PRESUMED TO BE AVAILABLE FOR DUTY WHENEVER CALLED, ALTHOUGH PERFORMANCE EACH TIME CALLED MAY NOT BE COMPULSORY, AND SUCH EMPLOYEE IS AN INDEFINITE EMPLOYEE AND ENTITLED TO ANNUAL AND SICK LEAVE UNDER THE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, RESPECTIVELY, AND THE LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, WHEN A SUFFICIENT CONTINUOUS PERIOD OF SERVICE HAS BEEN RENDERED, AND A STATEMENT IN THE APPOINTMENT THAT THE APPOINTEE IS NOT REQUIRED TO BE AVAILABLE FOR DUTY AT ANY TIME WOULD NOT REMOVE HIM FROM THE CLASS OF INDEFINITE EMPLOYEES, BUT IF THE APPOINTMENT IS LIMITED TO A DEFINITE PERIOD OF LESS THAN 6 MONTHS THE EMPLOYEE IS A TEMPORARY EMPLOYEE, AND AS SUCH ENTITLED TO ANNUAL AND SICK LEAVE WHEN A SUFFICIENT PERIOD OF SERVICE HAS BEEN RENDERED. SEE 17 COMP. GEN. 1017; 18 ID. 400. EMPLOYEES APPOINTED FOR SERVICE LIMITED TO DEFINITE PORTIONS OF EACH DAY, WEEK, OR MONTH, WHO PERFORM SERVICE IN ACCORDANCE WITH SUCH APPOINTMENTS, ARE TO BE CONSIDERED PART-TIME EMPLOYEES UNDER THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, AND NOT ENTITLED TO LEAVE UNDER THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, RESPECTIVELY. INTERMITTENT EMPLOYEES WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, ARE THOSE RENDERING SERVICES UNDER REPEATED APPOINTMENTS OR EMPLOYMENTS FOR SHORT PERIODS NONE OF WHICH EXTENDS FOR A FULL CALENDAR MONTH, BUT SHOULD THE SERVICES UNDER SUCH INTERMITTENT APPOINTMENTS COVER A CONTINUOUS PERIOD OF 1 MONTH THE EMPLOYEE WOULD BECOME ENTITLED TO LEAVE AS A TEMPORARY EMPLOYEE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR, FEDERAL HOUSING ADMINISTRATION, NOVEMBER 17, 1938:

YOUR LETTER OF OCTOBER 26, 1938, IS AS FOLLOWS:

NUMEROUS QUESTIONS HAVE ARISEN IN THIS ADMINISTRATION WITH REFERENCE TO THE DEFINITION OF ,INDEFINITE EMPLOYEES, AS CONTAINED IN EXECUTIVE ORDERS NOS. 7845 AND 7846 PRESCRIBING ANNUAL AND SICK LEAVE REGULATIONS, RESPECTIVELY. SUBSECTION 1 (E) OF THE ANNUAL LEAVE REGULATIONS IS AS FOLLOWS:

"/E) "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 BR 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.

THIS OFFICE HAS ON ITS PAY ROLLS A SUBSTANTIAL NUMBER OF EMPLOYEES WHO ARE APPOINTED FOR AN INDEFINITE PERIOD OF TIME AT SO MUCH PER DIEM "WHEN ACTUALLY EMPLOYED.' THESE EMPLOYEES, FOR THE MOST PART, ARE ENGAGED IN APPRAISAL WORK IN THE FIELD OFFICES. DURING A GIVEN WORK DAY THE SAME EMPLOYEE MAY BE ASSIGNED ONE OR MORE CASES, INVOLVING ONE OR MORE APPRAISALS OF SEPARATE AND DISTINCT PROPERTIES HAVING NO RELATION TO EACH OTHER. WHILE NO REFERENCE IS MADE IN THE APPOINTMENT AS TO WHETHER OR NOT THEY ARE REQUIRED TO BE AVAILABLE FOR DUTY AT ALL TIMES, IT IS THE ADMINISTRATIVE PRACTICE IN THE FIELD OFFICES TO CONSIDER SUCH EMPLOYEES AS NOT BEING REQUIRED TO HOLD THEMSELVES IN READINESS FOR SERVICE. FOR EXAMPLE, A FIELD OFFICE MAY HAVE AS MANY AS TEN SUCH EMPLOYEES AND IF THAT PARTICULAR OFFICE CALLS ON ONE CERTAIN PERSON FOR WORK THAT DAY AND SUCH PERSON IS NOT AVAILABLE, HE MAY CALL ON OTHERS DESIGNATED TO DO THIS WORK UNTIL HE OBTAINS SOMEONE WHO IS AVAILABLE FOR DUTY. THE FACT THAT SUCH AN EMPLOYEE MAY NOT BE AVAILABLE ON A PARTICULAR DAY IS CONSIDERED NO CAUSE FOR NOT USING HIS SERVICES ON ANOTHER OCCASION. IT SHOULD ALSO BE POINTED OUT THAT A NUMBER OF THESE EMPLOYEES DO ACTUALLY RENDER SERVICE FOR CONTINUOUS PERIODS OF 30 DAYS.

IN THE LIGHT OF THE ABOVE DEFINITION OF "INDEFINITE EMPLOYEES" YOUR DECISION ON THE FOLLOWING QUESTIONS IS RESPECTFULLY REQUESTED:

(1) WHERE AN EMPLOYEE IS GIVEN AN APPOINTMENT WHICH STATES THAT IT IS FOR AN INDEFINITE PERIOD AT SO MUCH PER DIEM "WHEN ACTUALLY EMPLOYED" BUT CONTAINS NO REQUIREMENT THAT THE EMPLOYEE IS REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN ONE MONTH OR FOR ANY PERIOD, IS HE AN "INDEFINITE EMPLOYEE" WITHIN THE MEANING OF THE LEAVE REGULATIONS, AND ENTITLED TO ANNUAL LEAVE AS PROVIDED IN SECTION 5 OF THE ANNUAL LEAVE REGULATIONS, IN SECTION 3 OF THE SICK-LEAVE REGULATIONS, OR IS HE A "PART- TIME" OR "INTERMITTENT" EMPLOYEE AND NOT ENTITLED TO ANY LEAVE PRIVILEGES?

(2) ASSUMING THE SAME SET OF FACTS AS IN QUESTION (1), CAN IT BE SAID THAT SUCH AN EMPLOYEE IS NOT AN "INDEFINITE EMPLOYEE" WHERE IT IS THE ADMINISTRATIVE POLICY NOT TO CONSIDER THESE EMPLOYEES AS "REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN ONE MONTH" EVEN THOUGH SUCH EMPLOYEE MAY WORK CONTINUOUSLY FOR ONE MONTH OR MORE?

(3) IF THE ANSWER TO QUESTION (1) IS THAT A PERSON EMPLOYED FOR AN INDEFINITE PERIOD AT SO MUCH PER DIEM "WHEN ACTUALLY EMPLOYED" IS ENTITLED TO LEAVE, WOULD A DEFINITE STATEMENT IN THE APPOINTMENT TO THE EFFECT THAT THE APPOINTEE IS NOT REQUIRED TO BE AVAILABLE FOR DUTY AT ANY TIME BE SUFFICIENT TO TAKE HIM OUT OF THE CLASSIFICATION OF AN "INDEFINITE EMPLOYEE EVEN THOUGH HE MAY RENDER SERVICE FOR CONTINUOUS PERIODS OF ONE MONTH OR MORE?

(4) WHERE AN EMPLOYEE IS GIVEN AN APPOINTMENT FOR ANY DEFINITE PERIOD OF LESS THAN SIX MONTHS TO BE PAID AT SO MUCH PER DIEM ONLY "WHEN ACTUALLY EMPLOYED," IS HE (A) AN INDEFINITE EMPLOYEE AND ENTITLED TO LEAVE, OR (B) A TEMPORARY EMPLOYEE AND LIKEWISE ENTITLED TO LEAVE, OR (C) AN EMPLOYEE NOT ENTITLED TO ANY LEAVE PRIVILEGES UNDER THE NEW ANNUAL- AND SICK-LEAVE REGULATIONS FOR THE REASON THAT HE CANNOT BE CLASSIFIED EITHER AS INDEFINITE BECAUSE APPOINTED FOR A DEFINITE PERIOD OF TIME, EVEN THOUGH PAID "WHEN ACTUALLY EMPLOYED," OR AS TEMPORARY BECAUSE PAID ONLY "WHEN ACTUALLY EMPLOYED.'

IN YOUR DECISION A-95110 DATED MAY 27, 1938 (17 COMP. GEN. 1017) IN SPEAKING OF THE INTERPRETATION OF THE TERM "INDEFINITE EMPLOYEE" YOU SAID IN PART AS FOLLOWS:

"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.'

FOLLOWING THIS STATEMENT IS A QUOTATION FROM YOUR DECISION APPEARING IN 16 COMP. GEN. 678 AT PAGE 680, IN WHICH IT IS INDICATED THAT AN EMPLOYEE TO BE CLASSIFIED AS "INDEFINITE" MUST BE APPOINTED ON A FULL TIME BASIS FOR AN INDEFINITE PERIOD. THIS OFFICE IS IN DOUBT AS TO THE APPLICATION OF THIS DEFINITION TO THE CLASS OF EMPLOYEES DISCUSSED IN THIS LETTER.

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

THE WORDING OF AN EMPLOYEE'S APPOINTMENT DOES NOT NECESSARILY DETERMINE HIS RIGHT TO SICK AND ANNUAL LEAVE IF HIS ACTUAL SERVICE DIFFERS FROM THAT INDICATED IN THE APPOINTMENT, 16 COMP. GEN. 442, EXCEPT TO THE EXTENT THAT AN APPOINTMENT PROPERLY WORDED AS A PERMANENT APPOINTMENT WILL ENTITLED THE EMPLOYEE TO LEAVE AT THE RATE OF 2 1/6 DAYS PER MONTH, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, WHILE A TEMPORARY APPOINTMENT ENTITLES HIM TO LEAVE AT THE RATE OF 2 1/2 DAYS PER MONTH, NOT EXCLUDING SUNDAYS AND HOLIDAYS.

WHEN AN EMPLOYEE IS GIVEN AN APPOINTMENT FOR AN INDEFINITE PERIOD WITH COMPENSATION AT PER DIEM RATES WHEN ACTUALLY EMPLOYED, IT IS TO BE PRESUMED THAT HE WILL BE AVAILABLE FOR DUTY WHENEVER CALLED ALTHOUGH PERFORMANCE EACH TIME CALLED MAY NOT BE COMPULSORY. SUCH AN APPOINTMENT ENTITLED THE EMPLOYEE TO ANNUAL LEAVE AT THE RATE OF 2 1/6 DAYS PER MONTH IF AND WHEN THE PERIOD OF SERVICE RENDERED IS SUFFICIENT IN ACCORDANCE WITH 17 COMP. GEN. 1017. IF THE APPOINTMENT IS LIMITED TO A DEFINITE PERIOD OF LESS THAN 6 MONTHS, WITH COMPENSATION ON A PER DIEM BASIS WHEN ACTUALLY EMPLOYED, THE EMPLOYEE IS ENTITLED TO LEAVE AT THE RATE OF 2 1/2 DAYS' LEAVE FOR EACH MONTH OF CONTINUOUS SERVICE, ALSO IN ACCORDANCE WITH 17 COMP. GEN. 1017. SEE ALSO IN THIS CONNECTION DECISION OF OCTOBER 31, 1938, A-98734, 18 COMP. GEN. 400.

APPOINTMENTS FOR SERVICE LIMITED TO DEFINITE PORTIONS OF EACH DAY, WEEK, OR MONTH, FOLLOWED BY SERVICE IN ACCORDANCE WITH SUCH APPOINTMENTS, ARE TO BE CONSIDERED PART-TIME EMPLOYEES ENTITLED TO NO LEAVE. INTERMITTENT EMPLOYMENTS CONSIST OF SERVICES UNDER REPEATED APPOINTMENTS OR EMPLOYMENTS FOR SHORT PERIODS NONE OF WHICH EXTEND FOR A FULL CALENDAR MONTH. SHOULD SERVICE UNDER SUCH AN APPOINTMENT COVER A CONTINUOUS PERIOD OF 1 MONTH, THE EMPLOYEE WOULD BECOME ENTITLED TO LEAVE AS A TEMPORARY EMPLOYEE.

ANSWERING YOUR QUESTIONS SPECIFICALLY, THE EMPLOYEE IN QUESTIONS (1) AND (2) WOULD BE CONSIDERED AN INDEFINITE EMPLOYEE AND AS SUCH ENTITLED TO LEAVE WHEN A SUFFICIENT CONTINUOUS PERIOD OF SERVICE HAS BEEN RENDERED. QUESTION (3) IS ANSWERED IN THE NEGATIVE. THE EMPLOYEE IN QUESTION (4) WOULD BE CONSIDERED A TEMPORARY EMPLOYEE AND AS SUCH ENTITLED TO LEAVE WHEN HE SHOULD HAVE RENDERED A SUFFICIENT PERIOD OF CONTINUOUS SERVICE.