B-236228, Dec 22, 1989

B-236228: Dec 22, 1989

Additional Materials:

Contact:

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

 

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

CIVILIAN PERSONNEL - Leaves Of Absence - Annual leave - Eligibility - Intermittent employment DIGEST: This summary letter decision addresses well established rules which have been discussed in previous Comptroller General decisions. Appeals our Claims Group settlement denying his claim for leave benefits while he was employed with the U.S. Thompson was intermittently employed as a Deputy U.S. Thompson claims that he worked a regular tour of duty and thus is entitled to part-time leave benefits. Part time employees for whom a regular tour of duty during each administrative workweek has not been established in advance are excluded from leave coverage. We have consistently held that this provision requires that the intermittent employee be scheduled in advance to report at a definite and certain time within each workweek.

B-236228, Dec 22, 1989

CIVILIAN PERSONNEL - Leaves Of Absence - Annual leave - Eligibility - Intermittent employment DIGEST: This summary letter decision addresses well established rules which have been discussed in previous Comptroller General decisions. To locate substantive decisions addressing this issue, refer to decisions indexed under the above listed index entry.

Maynard W. Thompson:

Mr. Maynard W. Thompson, through his attorney, appeals our Claims Group settlement denying his claim for leave benefits while he was employed with the U.S. Marshals Service. /1/ Mr. Thompson was intermittently employed as a Deputy U.S. Marshal from August 4, 1970, to June 15, 1984. Notwithstanding the designation of his position as intermittent, Mr. Thompson claims that he worked a regular tour of duty and thus is entitled to part-time leave benefits. Our Claims Group denied his claim for retroactive leave benefits on the grounds that he set his own hours and thus did not work a regular tour of duty scheduled in advance which would enable him to claim leave benefits.

Under the provisions of the Federal Personnel Manual (FPM), part time employees for whom a regular tour of duty during each administrative workweek has not been established in advance are excluded from leave coverage. FPM, ch. 630, Sec. 2-1b(2). See also FPM Supp. No. 990-2, bk. 630, S2-1a(4) (Inst. 13, June 23, 1965). In order to convert from intermittent to part-time employment, it must be shown that the agency has scheduled an intermittent employee, in advance of the pay period, to work at some time during each administrative week for more than two consecutive pay periods. FPM, ch. 340, Sec. 4-1c (Inst. 321, April 3, 1985).

We have consistently held that this provision requires that the intermittent employee be scheduled in advance to report at a definite and certain time within each workweek. Frank J. Rogichau, Jr., B-230740, Nov. 29, 1988. The mere designation of an employee's appointment as "intermittent" is not conclusive of the question of his entitlement to annual leave benefits, and we will look to the nature of he actual work performed and not the official job description in determining whether an employee has a regular tour of duty. Helen M. Jew, B-230840, Aug. 18, 1988, 67 Comp.Gen. 570.

The record before us does not clearly establish that Mr. Thompson served a regular tour of duty scheduled in advance under which he was required to perform duty at a definite time during each administrative week for more than two consecutive pay periods. The agency's report indicates that, although Mr. Thompson often worked during regular hours, he did so on his office on certain days or at specified times. Mr. Thompson worked almost exclusively on the service of process and, according to the agency, there are no special hours during which process can or should be served.

Accordingly, we affirm the denial of his claim.

/1/ Z-2865680, Aug. 25, 1988.