B-12030, SEPTEMBER 7, 1940, 20 COMP. GEN. 133

B-12030, SEPTEMBER 7, 1940, 20 COMP. GEN. 133

LEAVES OF ABSENCE - JURY SERVICE - TEMPORARY AND SUBSTITUTE EMPLOYEES TEMPORARY AND SUBSTITUTE EMPLOYEES ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY FOR JURY DUTY UNDER THE ACT OF JUNE 29, 1940, PUBLIC, NO. 676, 54 STAT. 689.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL SEPTEMBER 7, 1940:

I HAVE YOUR LETTER OF AUGUST 26, 1940, AS FOLLOWS:

THE ACT OF CONGRESS APPROVED JUNE 29, 1940, PROVIDING FOR LEAVE OF ABSENCE WITH PAY FOR GOVERNMENT EMPLOYEES CALLED UPON FOR JURY SERVICE ( PUBLIC, 676, 76TH CONGRESS) INCLUDED WITHIN THE SCOPE OF THE ACT "* * * ANY EMPLOYEE OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA, WHO MAY BE CALLED UPON FOR JURY SERVICE IN ANY STATE COURT OR COURT OF THE UNITED STATES * * *.'

QUESTION HAS BEEN RAISED WHETHER SUBSTITUTES IN THE POSTAL SERVICE WOULD BE ENTITLED TO LEAVE WITH PAY FOR JURY DUTY; ALSO WHETHER TEMPORARY EMPLOYEES SUCH AS TEMPORARY CLEANERS, TEMPORARY SUBSTITUTE CLERKS, TEMPORARY SUBSTITUTE CARRIERS, AND TEMPORARY SUBSTITUTE LABORERS WOULD BE INCLUDED WITHIN THE PROVISIONS OF THE ACT.

YOUR DECISION ON THIS POINT IS REQUESTED. IN THE EVENT YOU CONSTRUE THE ACT AS INCLUDING SUBSTITUTE AND TEMPORARY EMPLOYEES WITHIN ITS PROVISIONS, IT IS REQUESTED THAT YOU ADVISE UPON WHAT BASIS SUCH EMPLOYEES WOULD BE PAID INASMUCH AS THEY DO NOT HAVE REGULAR SCHEDULES OF HOURS OF EMPLOYMENT.

THE ACT OF JUNE 29, 1940, PUBLIC, NO. 676, 54 STAT. 689, PROVIDES AS FOLLOWS:

THAT THE COMPENSATION OF ANY EMPLOYEE OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA, WHO MAY BE CALLED UPON FOR JURY SERVICE IN ANY STATE COURT OR COURT OF THE UNITED STATES SHALL NOT BE DIMINISHED DURING THE TERM OF SUCH JURY SERVICE BY REASON OF SUCH ABSENCE, EXCEPT AS PROVIDED IN SECTION 3, NOR SHALL SUCH PERIOD OF SERVICE BE DEDUCTED FROM THE TIME ALLOWED FOR ANY LEAVE OF ABSENCE AUTHORIZED BY LAW.

SEC. 2. ANY EMPLOYEE SPECIFIED IN SECTION 1 WHO MAY BE CALLED UPON FOR JURY SERVICE IN ANY COURT OF THE UNITED STATES SHALL NOT RECEIVE ANY COMPENSATION FOR SUCH SERVICE.

SEC. 3. THERE SHALL BE CREDITED AGAINST THE AMOUNT OF COMPENSATION PAYABLE BY THE UNITED STATES TO ANY EMPLOYEE SPECIFIED IN SECTION 1 FOR ANY PERIOD AS SUCH EMPLOYEE MAY BE ABSENT ON ACCOUNT OF JURY SERVICE IN THE COURT OF ANY STATE ANY AMOUNTS WHICH SUCH EMPLOYEE MAY RECEIVE FROM SUCH STATE ON ACCOUNT OF SUCH JURY SERVICE.

IT HAS BEEN CONSISTENTLY HELD FOR MANY YEARS THAT IN THE ABSENCE OF AN EXPRESS PROVISION BY LAW AUTHORIZING THE GRANTING OF LEAVE OF ABSENCE WITH PAY TO SUBSTITUTE, TEMPORARY AND "WHEN ACTUALLY EMPLOYED" PERSONNEL, THE RIGHT OR PRIVILEGE TO BE ABSENT FROM DUTY WITH PAY IS LIMITED TO PERMANENT EMPLOYEES. AS TO ANNUAL LEAVE, SEE 3 COMP. GEN. 382; 4 ID. 17; ID. 511; ID. 552; ID. 575; ID. 650; 5 ID. 903; 6 ID. 266; COURT OR WITNESS LEAVE, 4 COMP. GEN. 748; MILITARY LEAVE, 3 COMP. GEN. 112; 6 ID. 178; ID. 275; 9 ID. 119; 14 ID. 28; ID. 336; 16 ID. 105; ID. 119; 18 ID. 403; 19 ID. 177. IN DECISION OF MARCH 11, 1925, 4 COMP. GEN. 748, HOLDING THAT A TEMPORARY RURAL LETTER CARRIER IS NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY WHILE ABSENT FROM DUTY TESTIFYING AS A WITNESS FOR THE GOVERNMENT BEFORE A GRAND JURY IT WAS STATED:

* * * THE AUTHORITY TO EMPLOY A SUBSTITUTE OR TEMPORARY CARRIER IS, THEREFORE, THE ABSENCE OF THE REGULAR CARRIER. THERE EXISTS NO AUTHORITY TO EMPLOY A TEMPORARY CARRIER BECAUSE OF THE ABSENCE OF ANOTHER TEMPORARY CARRIER SUBPOENAED TO TESTIFY IN BEHALF OF THE GOVERNMENT OR ABSENT FOR ANY OTHER REASON. THE EMPLOYMENT OF THE SECOND TEMPORARY CARRIER, DURING HIS ABSENCE FOR ANY CAUSE, IS NOT AVAILABLE FOR EMPLOYMENT IN THE CAPACITY OF A TEMPORARY CARRIER AND THEREFORE CEASES TO BE "A CLERK OR OTHER OFFICER OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 850, REVISED STATUTES, 25 COMP. DEC. 546. NOR WOULD THE TEMPORARY CARRIERS BE ENTITLED TO LEAVE OF ABSENCE WITH PAY UNDER SECTION 734, POSTAL LAWS AND REGULATIONS.

ANNUAL AND SICK LEAVE OF ABSENCE WITH PAY IS NOW EXPRESSLY AUTHORIZED BY LAW AND REGULATION FOR TEMPORARY, SUBSTITUTE, AND, UNDER CERTAIN CIRCUMSTANCES, FOR "WHEN ACTUALLY EMPLOYED" PERSONNEL. HOWEVER, THERE IS NO EXPRESS PROVISION OF LAW AUTHORIZING THE GRANTING OF MILITARY LEAVE TO SUCH PERSONNEL, AND IN THE ABSENCE THEREOF THE DECISIONS, INCLUDING A NUMBER RENDERED SUBSEQUENT TO THE STATUTES AUTHORIZING ANNUAL AND SICK LEAVE FOR SUCH EMPLOYEES, DENYING MILITARY LEAVE TO THESE EMPLOYEES, HAVE BEEN AFFIRMED BY DECISION OF SEPTEMBER 4, 1940, B-11963, OVERRULING 2 COMP. GEN. 247.

IN LINE WITH SAID CONSISTENT RULE, AND AS THE ACT OF JUNE 29, 1940, ABOVE QUOTED, DOES NOT EXPRESSLY INCLUDE TEMPORARY OR SUBSTITUTE EMPLOYEES, IT IS CONCLUDED THAT THE CLASSES OF EMPLOYEES MENTIONED IN THE SECOND PARAGRAPH OF YOUR LETTER, ALL OF WHOM ARE TEMPORARILY EMPLOYED EITHER AS SUBSTITUTES IN THE ABSENCE OF REGULAR EMPLOYEES OR FOR TEMPORARY NEED, DO NOT COME WITHIN THE PURVIEW OF SAID ACT AND ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY FOR JURY DUTY.