B-48289, MARCH 24, 1945, 24 COMP. GEN. 702

B-48289: Mar 24, 1945

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WHERE A LIMITATION OF "NOT TO EXCEED ONE YEAR" IS INCLUDED. THE EMPLOYEES ARE TO BE REGARDED AS "TEMPORARY" WITHIN THE MEANING OF SECTION 1.1 (C) OF THE ANNUAL AND SICK LEAVE REGULATIONS. REQUIRING LUMP-SUM LEAVE PAYMENTS TO "ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT" UPON SEPARATION FROM SERVICE ARE APPLICABLE TO EMPLOYEES ENTITLED TO LEAVE REGARDLESS OF THE TENURE OF APPOINTMENT. THE DEFINITION OF "TEMPORARY EMPLOYEES" (THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEED 1 YEAR) APPEARING IN SECTION 1.1 (C) OF THE ANNUAL AND SICK LEAVE REGULATIONS IS DETERMINATIVE. OF WHETHER EMPLOYEES ARE TO BE CLASSED AS "TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES" WITHIN THE MEANING OF SECTION 1 OF THE ANNUAL LEAVE STATUTE OF MARCH 14.

B-48289, MARCH 24, 1945, 24 COMP. GEN. 702

LEAVES OF ABSENCE; LUMP-SUM LEAVE PAYMENTS - TEMPORARY EMPLOYEES EVEN THOUGHT THE EXACT DATE OF TERMINATION BE NOT STATED IN EMPLOYEES' APPOINTMENTS, WHERE A LIMITATION OF "NOT TO EXCEED ONE YEAR" IS INCLUDED, THE EMPLOYEES ARE TO BE REGARDED AS "TEMPORARY" WITHIN THE MEANING OF SECTION 1.1 (C) OF THE ANNUAL AND SICK LEAVE REGULATIONS, WHICH DEFINES ,TEMPORARY EMPLOYEES" AS THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 1 YEAR. THE PROVISIONS OF SECTION 1 OF THE ACT OF DECEMBER 21, 1944, REQUIRING LUMP-SUM LEAVE PAYMENTS TO "ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT" UPON SEPARATION FROM SERVICE ARE APPLICABLE TO EMPLOYEES ENTITLED TO LEAVE REGARDLESS OF THE TENURE OF APPOINTMENT, INCLUDING TEMPORARY EMPLOYEES. IN VIEW OF THE REQUIREMENTS OF SECTION 1 OF THE ACT OF DECEMBER 21, 1944, RESPECTING LUMP-SUM PAYMENTS FOR LEAVE UPON SEPARATION FROM SERVICE, A TEMPORARY EMPLOYEE APPOINTED FOR A PERIOD OF TWO MONTHS MAY NO LONGER BE GRANTED TERMINAL ANNUAL LEAVE OF FIVE DAYS IMMEDIATELY PRIOR TO THE END OF THE SECOND MONTH OF SERVICE, AS AUTHORIZED BY PRIOR DECISIONS; RATHER, IN ORDER TO RECEIVE CREDIT FOR FIVE DAYS' ANNUAL LEAVE UNDER SECTION 2.1 (B) OF THE ANNUAL LEAVE REGULATIONS, THE EMPLOYEE MUST RENDER A FULL TWO-MONTH PERIOD OF SERVICE, UPON COMPLETION OF WHICH A LUMP-SUM PAYMENT FOR HIS ACCRUED LEAVE BECOMES PAYABLE. CF. 23 COMP. GEN. 732. THE DEFINITION OF "TEMPORARY EMPLOYEES" (THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEED 1 YEAR) APPEARING IN SECTION 1.1 (C) OF THE ANNUAL AND SICK LEAVE REGULATIONS IS DETERMINATIVE, ALSO, OF WHETHER EMPLOYEES ARE TO BE CLASSED AS "TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES" WITHIN THE MEANING OF SECTION 1 OF THE ANNUAL LEAVE STATUTE OF MARCH 14, 1936, WHICH EXCLUDES SUCH EMPLOYEES FROM THE LEAVE BENEFITS PROVIDED THEREBY, AND, THEREFORE, HOURLY RATE CONSTRUCTION EMPLOYEES APPOINTED FOR THE SEASON OR DURATION OF THE JOB ARE OR ARE NOT ENTITLED TO LEAVE DEPENDING UPON WHETHER THEIR APPOINTMENTS ARE WITHOUT LIMITATION OR ARE LIMITED TO NOT TO EXCEED ONE YEAR.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, MARCH 24, 1945:

I HAVE YOUR LETTER OF MARCH 3, 1945, AS FOLLOWS:

REFERENCE IS MADE TO DECISION 16 COMP. GEN. 934 HOLDING THAT THE "TEMPORARY" CLASSIFICATION FOR LEAVE PURPOSES WOULD INCLUDE EMPLOYEES WHOSE APPOINTMENTS WERE FOR A PERIOD "NOT TO EXCEED SIX MONTHS" EVEN THOUGH THE EXACT DATE OF TERMINATION IS NOT STATED. AT THAT TIME THERE WERE ONLY TWO CLASSES UNDER THE LEAVE REGULATIONS, PERMANENT AND TEMPORARY, AND THE REGULATIONS DEFINED AS ,TEMPORARY" PERSONS APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING SIX MONTHS.

THE REGULATIONS LATER WERE AMENDED BY ADDITION OF AN "INDEFINITE" CLASS, WHICH INCLUDES THOSE EMPLOYED FOR THE "DURATION OF THE JOB.' DECISION 23 COMP. GEN. 732 HELD THAT THE LAST FIVE DAYS OF A SIXTY-DAY APPOINTMENT COULD BE COVERED BY LEAVE, AND STATED THAT THE PROHIBITION AGAINST EARNING OF LEAVE DURING A TERMINAL LEAVE PERIOD APPLIES TO EMPLOYEES WHOSE TENURE OF SERVICE IS INDEFINITE AND "WHOSE TERMINATION OF SERVICE MUST BE FIXED AFTER SERVICE HAS BEEN RENDERED.' APPARENTLY THE CONCLUSION WAS BASED ON THE PREMISE THAT TEMPORARY EMPLOYEES, AS DEFINED BY THE LEAVE REGULATIONS, ARE THOSE EMPLOYED FOR DEFINITE, PREDETERMINED PERIODS, THE TERMINATION DATE BEING FIXED AT TIME OF APPOINTMENT. THIS WOULD INDICATE THAT EMPLOYEES COULD NOT NOW BE CLASSED AS "TEMPORARY" FOR LEAVE PURPOSES UNDER APPOINTMENT FIXING A PERIOD "NOT TO EXCEED ONE YEAR," BUT INDEFINITE AS TO THE ACTUAL PERIOD. I SHOULD APPRECIATE YOUR DECISION AS TO WHETHER THE TERM ,TEMPORARY EMPLOYEES" NOW IS TO BE CONSIDERED AS INCLUDING ONLY THOSE EMPLOYED FOR A DEFINITELY STATED PERIOD AND EXCLUDING THOSE APPOINTED FOR A PERIOD "NOT TO EXCEED ONE YEAR" WHOSE TERMINATION OF SERVICE MUST BE FIXED AFTER THE SERVICE HAS BEEN RENDERED.

DECISION IS DESIRED ALSO AS TO THE EFFECT, IF ANY, OF THE ACT OF DECEMBER 21, 1944 ( PUBLIC 525) ON LEAVE EARNED BY PERSONS APPOINTED FOR A DEFINITE PERIOD OF ONE YEAR OR LESS. SPECIFICALLY, COULD A PERSON EMPLOYED FOR A PERIOD OF TWO MONTHS WHO TAKES NO LEAVE DURING HIS ACTIVE SERVICE BE SEPARATED AT THE CLOSE OF ONE MONTH AND TWENTY FIVE DAYS AND THEN BE PAID A LUMP-SUM FOR THE EQUIVALENT OF FIVE DAYS' LEAVE?

AN INDICATION OF THE TYPES OF EMPLOYEES AFFECTED MAY CLARIFY SOMEWHAT THE REASONS FOR THE ABOVE QUESTIONS. MANY SEASONAL EMPLOYEES ARE ENGAGED EACH YEAR FOR WORK THAT CONTINUES FOR SEVERAL MONTHS, BUT FOR WHICH THE ACTUAL PERIOD CANNOT BE PREDETERMINED, DEPENDING LARGELY UPON THE WEATHER OR OTHER CONDITIONS. IT MAY BE KNOWN THAT A PARTICULAR EMPLOYMENT WILL NOT EXTEND BEYOND SIX MONTHS, NINE MONTHS, OR ONE YEAR, BUT AN APPOINTMENT FOR "NOT TO EXCEED NINE MONTHS," FOR EXAMPLE, MAY BE TERMINATED AT THE EXPIRATION OF 6, 7 OR 8 MONTHS BECAUSE OF WEATHER CONDITIONS OR OTHER CIRCUMSTANCES RENDERING FURTHER EMPLOYMENT UNNECESSARY.

BOTH THE LAW AND THE REGULATIONS EXCLUDE "TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES.' MANY CONSTRUCTION EMPLOYEES ARE TEMPORARY IN THAT THEY ARE EMPLOYED ONLY FOR THE FIELD SEASON OR FOR A JOB THAT WILL BE COMPLETED WITHIN A FEW MONTHS. THE EMPLOYMENT CONTRACT MAY OR MAY NOT CONTAIN THE LIMITATION "NOT TO EXCEED ONE YEAR," OR A SHORTER PERIOD. DECISION IS DESIRED AS TO WHETHER THE WORD "TEMPORARY" WITH RESPECT TO HOURLY RATE CONSTRUCTION EMPLOYEES HAS THE SAME DEFINITION AS FOR OTHER PURPOSES UNDER THE LEAVE ACT; THAT IS, "THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING ONE YEARS.' WOULD THESE EMPLOYEES BE ENTITLED TO LEAVE AS ,INDEFINITE" EMPLOYEES IF APPOINTED FOR THE DURATION OF THE JOB (A) WITH A LIMITATION "NOT TO EXCEED ONE YEAR" OR (B) WITHOUT A LIMITATION?

IT MAY BE WELL TO MENTION ALSO THAT IF APPOINTMENTS FIXING THE PERIOD OF EMPLOYMENT AT NOT TO EXCEED ONE YEAR, WITHOUT FIXING THE EXACT PERIOD OR DATE OF TERMINATION, MAY BE CONSIDERED AS ,TEMPORARY" ALL SEASONAL EMPLOYEES COULD BE SO CLASSIFIED FOR LEAVE PURPOSES BY INCLUDING A ONE YEAR LIMITATION IN THE APPOINTMENT OR EMPLOYMENT CONTRACT, LEAVING THE FINAL TERMINATION DATE TO BE FIXED LATER WHEN THE WORK IS COMPLETED OR IS DISCONTINUED BECAUSE OF WEATHER OR OTHER CONDITIONS. IN SOME LINES OF WORK AND THROUGHOUT SOME BUREAUS THIS WOULD RESULT IN ONLY TWO CLASSES FOR LEAVE PURPOSES, PERMANENT AND TEMPORARY. IT WOULD REMOVE ANY CONFUSION CAUSED BY THE "TEMPORARY" AND "INDEFINITE" CLASSIFICATIONS, BUT WOULD DEPRIVE HOURLY RATE CONSTRUCTION EMPLOYEES OF ALL LEAVE PRIVILEGES IF IN ANSWERING THE FIFTH PARAGRAPH HEREOF IT IS HELD THAT SUCH EMPLOYEES ARE ENTITLED TO LEAVE AS BEING "INDEFINITE" RATHER THAN "TEMPORARY.'

SECTION 1.1 OF THE CURRENT LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1945, CONTAIN DEFINITIONS AS FOLLOWS:

(B) "PERMANENT EMPLOYEES" ARE THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE OR FOR DEFINITE PERIODS IN EXCESS OF 1 YEAR, OR FOR THE DURATION OF THE PRESENT WAR AND FOR 6 MONTHS THEREAFTER.

(C) "TEMPORARY EMPLOYEES" ARE THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 1 YEAR.

(D) "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 THAT 1 MONTH, AS DISTINGUISHED FROM PART-TIME OR INTERMITTENT EMPLOYEES.

ANY EMPLOYEE WHO IS APPOINTED FOR A PERIOD "NOT TO EXCEED ONE YEAR," WHOSE TERMINATION OF SERVICE MUST BE FIXED AFTER THE SERVICE HAS BEEN RENDERED, IS NOT A "PERMANENT" EMPLOYEE FOR LEAVE PURPOSES FOR THE REASON THAT THE APPOINTMENT IS LIMITED TO A PERIOD OF ONE YEAR. THERE IS NOTHING IN THE DEFINITION, SUPRA, OF THE TERM "INDEFINITE EMPLOYEES, THAT MAY BE REGARDED AS APPLICABLE IN THE INSTANT CASE IF A MAXIMUM PERIOD OF "NOT TO EXCEED ONE YEAR" APPEARS IN THE APPOINTMENT. THAT IS TO SAY, SERVICE UNDER SUCH AN APPOINTMENT COULD NOT, IN ANY EVENT, EXTEND BEYOND ONE YEAR FOR THE REASON THAT REAPPOINTMENT WOULD BE REQUIRED AT THE END OF ONE YEAR OF SERVICE IF SERVICE BEYOND THAT TIME WERE REQUIRED. 20 COMP. GEN. 332. HENCE, IT IS CONCLUDED THAT AN EMPLOYEE SERVING UNDER AN APPOINTMENT INCLUDING A LIMITATION THEREIN OF "NOT TO EXCEED ONE YEAR"--- IS A TEMPORARY EMPLOYEE FOR LEAVE PURPOSES. THE QUESTION PRESENTED I THE SECOND PARAGRAPH OF YOUR LETTER IS ANSWERED ACCORDINGLY.

SECTION 1 OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, PUBLIC LAW 525, AUTHORIZING PAYMENT OF A LUMP SUM FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE, IS APPLICABLE TO "ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT," WHICH CLASS OF EMPLOYEES WOULD INCLUDE ANY EMPLOYEE WHO IS ENTITLED TO LEAVE REGARDLESS OF THE TENURE OF HIS APPOINTMENT, INCLUDING TEMPORARY EMPLOYEES. HENCE, AN EMPLOYEE WHO IS APPOINTED FOR A PERIOD OF TWO MONTHS COULD NO LONGER BE GRANTED TERMINAL ANNUAL LEAVE OF FIVE DAYS IMMEDIATELY PRIOR TO THE END OF THE SECOND MONTH OF SERVICE, AS AUTHORIZED IN PRIOR DECISIONS, BUT THE EMPLOYEE MUST CONTINUE TO WORK THE FULL TWO MONTHS IN ORDER TO RECEIVE CREDIT FOR FIVE DAYS ANNUAL LEAVE (SECTION 2.1 (B) OF THE LEAVE REGULATIONS), AND SUCH AN EMPLOYEE WOULD BE ENTITLED TO RECEIVE A LUMP-SUM PAYMENT COMPUTED OVER A MAXIMUM PERIOD OF FIVE DAYS ANNUAL LEAVE ACCRUED AT THE END OF THE SECOND MONTH OF SERVICE. ACCORDINGLY, THE QUESTION IN THE THIRD PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.

SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, CONTAINS THE FOLLOWING SENTENCE:

* * * TEMPORARY EMPLOYEES, EXCEPT TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES SHALL BE ENTITLED TO TWO AND ONE-HALF DAYS LEAVE FOR EACH MONTH OF SERVICE. * * *

IN DECISION OF OCTOBER 29, 1940, 20 COMP. GEN. 223, IT WAS HELD THAT THE DEFINITION OF ,TEMPORARY EMPLOYEES" APPEARING IN THE LEAVE REGULATIONS THEN CURRENT WAS DETERMINATIVE, ALSO, OF WHETHER EMPLOYEES ARE TO BE CLASSED AS "TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES" (QUOTING FROM THE STATUTE, SUPRA). THE SAME WOULD BE TRUE REGARDING THE DEFINITIONS APPEARING IN THE LEAVE REGULATIONS NOW CURRENT. ACCORDINGLY, QUESTION (A) IN THE FIFTH PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE FOR THE REASON THAT THE EMPLOYEES ARE "TEMPORARY" (SEE ANSWER TO THE FIRST QUESTION SUPRA), AND QUESTION (B) IS ANSWERED IN THE AFFIRMATIVE FOR THE REASON THAT THE EMPLOYEES ARE "PERMANENT" (SEE DEFINITION OF "PERMANENT EMPLOYEES" QUOTED ABOVE FROM THE REGULATIONS).