B-52064, SEPTEMBER 25, 1945, 25 COMP. GEN. 290

B-52064: Sep 25, 1945

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DO NOT CONTINUE TO EARN LEAVE DURING PERIODS OF SHORT DURATION WHEN THEY ARE ASSIGNED TO CONSTRUCTION WORK. 1945: I HAVE YOUR LETTER OF AUGUST 25. AS FOLLOWS: REFERENCE IS MADE TO DECISIONS 24 COMP. QUESTION ARISES AS TO WHETHER THE CONCLUSION THAT SUCH LUMP-SUM PAYMENT "MAY" BE MADE IS TO BE CONSTRUED AS MEANING THAT SUCH PAYMENTS MUST BE MADE. WHICH WHEN AT HOURLY RATES IS EXCLUDED FROM LEAVE PRIVILEGES BOTH BY THE ACTS AND THE REGULATIONS. DECISION IS DESIRED AS TO THE FOLLOWING: (1) WHERE SUCH ASSIGNMENT IS OF SHORT DURATION IS IT NECESSARY THAT HE BE PAID IN A LUMP SUM UPON ASSIGNMENT TO THE CONSTRUCTION JOB? (A) MAY THE LEAVE ACCRUED ON THE REGULAR WORK BE CARRIED FORWARD TO THE NEXT PERIOD OF REGULAR WORK OR (B) MAY LEAVE ACCRUAL CONTINUE OVER THE INTERVENING PERIOD OF CONSTRUCTION WORK? (2) IF REQUIRED THAT LUMP-SUM PAYMENT FOR ANNUAL LEAVE BE MADE AND BEFORE THE PERIOD COVERED BY SUCH LEAVE IS EXHAUSTED THE EMPLOYEE IS RETURNED TO WORK UNDER THE ACT.

B-52064, SEPTEMBER 25, 1945, 25 COMP. GEN. 290

LEAVES OF ABSENCE - ANNUAL - LUMP-SUM PAYMENTS, ETC. - EFFECT OF TRANSFERS OF SHORT DURATION TO EMPLOYMENT NOT SUBJECT TO ANY LEAVE SYSTEM UPON THE TRANSFER OR ASSIGNMENT, FOR SHORT DURATION, OF A TEMPORARY EMPLOYEE FROM EMPLOYMENT SUBJECT TO THE ANNUAL LEAVE ACT OF MARCH 14, 1936, TO OTHER EMPLOYMENT NOT WITHIN THE PURVIEW OF ANY LEAVE SYSTEM, A LUMP-SUM PAYMENT FOR LEAVE UNDER THE ACT OF DECEMBER 21, 1944, NEED NOT BE MADE--- THE ACCRUED ANNUAL LEAVE TO BE CARRIED OVER SUCH SHORT PERIOD TO THE NEXT PERIOD OF EMPLOYMENT SUBJECT TO THE 1936 ACT. 24 COMP. GEN. 522, AMPLIFIED. TEMPORARY EMPLOYEES COMPENSATED AT HOURLY RATES, OTHERWISE ENTITLED TO EARN ANNUAL LEAVE UNDER THE ACT OF MARCH 14, 1936, AND REGULATIONS PURSUANT THERETO, WHEN ENGAGED UPON THEIR REGULAR EMPLOYMENT, DO NOT CONTINUE TO EARN LEAVE DURING PERIODS OF SHORT DURATION WHEN THEY ARE ASSIGNED TO CONSTRUCTION WORK, TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES BEING SPECIFICALLY EXCLUDED FROM THE OPERATION OF SAID ACT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, SEPTEMBER 25, 1945:

I HAVE YOUR LETTER OF AUGUST 25, 1945, AS FOLLOWS:

REFERENCE IS MADE TO DECISIONS 24 COMP. GEN. 522 AND 526 STATING THAT UNDER SECTION 3 OF THE ACT OF DECEMBER 21, 1944 ( PUBLIC LAW 525) A PERSON MAY BE PAID IN A LUMP SUM FOR ANNUAL LEAVE TO HIS CREDIT UPON TRANSFER FROM A POSITION SUBJECT TO THE LEAVE ACTS TO ANOTHER POSITION IN THE SAME AGENCY NOT SUBJECT THERETO. QUESTION ARISES AS TO WHETHER THE CONCLUSION THAT SUCH LUMP-SUM PAYMENT "MAY" BE MADE IS TO BE CONSTRUED AS MEANING THAT SUCH PAYMENTS MUST BE MADE.

IN SOME INSTANCES A PERSON EMPLOYED TEMPORARILY AT HOURLY RATE ON WORK SUBJECT TO THE LEAVE ACTS MAY BE TRANSFERRED AT THE SAME RATE TO CONSTRUCTION WORK, WHICH WHEN AT HOURLY RATES IS EXCLUDED FROM LEAVE PRIVILEGES BOTH BY THE ACTS AND THE REGULATIONS. SPECIFICALLY, AN EMPLOYEE HIRED AT HOURLY RATE PRIMARILY FOR MAINTENANCE WORK DURING THE FIELD SEASON (FOR EXAMPLE, 7 MONTHS) MAY BE ASSIGNED FOR A WEEK OR TWO TO A CONSTRUCTION JOB. DECISION IS DESIRED AS TO THE FOLLOWING:

(1) WHERE SUCH ASSIGNMENT IS OF SHORT DURATION IS IT NECESSARY THAT HE BE PAID IN A LUMP SUM UPON ASSIGNMENT TO THE CONSTRUCTION JOB? IF NOT,(A) MAY THE LEAVE ACCRUED ON THE REGULAR WORK BE CARRIED FORWARD TO THE NEXT PERIOD OF REGULAR WORK OR (B) MAY LEAVE ACCRUAL CONTINUE OVER THE INTERVENING PERIOD OF CONSTRUCTION WORK?

(2) IF REQUIRED THAT LUMP-SUM PAYMENT FOR ANNUAL LEAVE BE MADE AND BEFORE THE PERIOD COVERED BY SUCH LEAVE IS EXHAUSTED THE EMPLOYEE IS RETURNED TO WORK UNDER THE ACT, IS IT REQUIRED THAT HE REFUND THE UNEXHAUSTED PORTION? AS AN ILLUSTRATION: AN EMPLOYEE AT HOURLY RATE AFTER HAVING WORKED 6 MONTHS ON MAINTENANCE AND HAVING 15 DAYS UNUSED LEAVE MAY BE ASSIGNED FOR A FEW DAYS TO A CONSTRUCTION JOB. WHEN HE IS RETURNED TO THE MAINTENANCE JOB, IN WHICH POSITION HE EARNS LEAVE, IS IT NECESSARY THAT HE REFUND SO MUCH OF THE LUMP-SUM PAYMENT AS REPRESENTS THE UNEXPIRED PERIOD COVERED BY PAYMENT ON ACCOUNT OF THE 15 DAYS' ANNUAL LEAVE?

THE ABOVE RELATES TO ACTUAL INSTANCES THAT HAVE OCCURRED, BUT IT IS CONCEIVABLE THAT A PERMANENT EMPLOYEE WITH A LARGE LEAVE ACCUMULATION MAY BE TRANSFERRED TO A POSITION NOT SUBJECT TO THE LEAVE ACTS. IF PAID IN A LUMP SUM FOR LEAVE COVERING THREE MONTHS AND AT THE CLOSE OF ONE MONTH HE IS RESTORED TO A POSITION UNDER THE LEAVE ACTS, IS REFUND FOR THE UNEXPIRED PORTION OF THE LEAVE PERIOD REQUIRED OR MAY THE LEAVE PAYMENT BE ALLOWED TO STAND DESPITE THE FACT THAT DURING PART OF THE PERIOD REPRESENTED BY SUCH PAYMENT THE EMPLOYEE IS AGAIN EARNING LEAVE?

SECTION 3 APPARENTLY REQUIRES LUMP-SUM PAYMENT UPON TRANSFER TO AN AGENCY UNDER A DIFFERENT LEAVE SYSTEM BUT IT IS NOT CLEAR WHETHER THAT SECTION AS INTERPRETED BY THE TWO DECISIONS CITED REQUIRES, OR MERELY PERMITS, SUCH LUMP-SUM PAYMENT UPON TRANSFER TO A POSITION NOT SUBJECT TO THE LEAVE ACTS WITHIN THE SAME AGENCY. WHERE AN HOURLY-RATE EMPLOYEE IS SHIFTED TO CONSTRUCTION WORK FOR ONE OR MORE SHORT PERIODS IT APPEARS UNREASONABLE TO MAKE A LUMP-SUM LEAVE PAYMENT UPON SUCH ASSIGNMENT (KNOWN TO BE OF SHORT DURATION) AND REQUIRE A REFUND WHEN RETURNED TO THE LEAVE-EARNING JOB PRIOR TO EXHAUSTION OF THE PERIOD COVERED BY THE LUMP-SUM PAYMENT. ON THE OTHER HAND, IT SEEMS QUESTIONABLE WHETHER LEAVE SHOULD BE EARNED DURING A PERIOD THAT HAS BEEN COVERED BY A LUMP-SUM LEAVE PAYMENT BUT THE FACT THAT REFUND IS SPECIFICALLY REQUIRED BY SECTION 1 AND IS NOT MENTIONED IN SECTION 3 CREATES A DOUBT AS TO THE REFUND REQUIREMENT WITH RESPECT TO SECTION 3.

QUESTION AND ANSWER 7 IN DECISION OF JANUARY 13, 1945, 24 COMP. GEN. 522, 525, TO WHICH YOU REFER IN THE FIRST PARAGRAPH OF YOUR LETTER, ARE AS FOLLOWS:

(7) IT IS OFTEN NECESSARY TO TRANSFER EMPLOYEES WITHIN THE DEPARTMENT FROM POSITIONS WHICH ARE SUBJECT TO THE ACT OF 14 MARCH 1936 (49 STAT. 1161) TO POSITIONS WHICH ARE EXCLUDED FROM THE PURVIEW OF THE ACT BY THE PROVISIONS OF SECTION 6.1 (C) AND 6.1 (E) OF EXECUTIVE ORDER 9414, JANUARY 13, 1944. MAY THE ACCUMULATED AND ACCRUED ANNUAL LEAVE TO THE CREDIT OF SUCH EMPLOYEES BE LIQUIDATED BY A LUMP-SUM PAYMENT AT THE TIME OF TRANSFER?

SECTION 3 OF THE STATUTE PROVIDES:

"THAT ALL ACCUMULATED AND CURRENT ACCRUED LEAVE BE LIQUIDATED BY A LUMP- SUM PAYMENT TO ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IN CASES INVOLVING TRANSFER TO AGENCIES UNDER DIFFERENT LEAVE SYSTEMS. SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE NOT BEEN TRANSFERRED UNTIL THE EXPIRATION OF THE PERIOD OF SUCH LEAVE: PROVIDED, THAT THE LUMP-SUM PAYMENT HEREIN AUTHORIZED SHALL NOT BE REGARDED, EXCEPT FOR PURPOSES OF TAXATION, AS SALARY OR COMPENSATION AND SHALL NOT BE SUBJECT TO RETIREMENT DEDUCTIONS.'

SECTIONS 6.1, 6.1 (C,) AND 6.1 (E) OF THE LEAVE REGULATIONS ( EXECUTIVE ORDER 9414 OF JANUARY 13, 1944, REVISED EFFECTIVE JANUARY 1, 1945, BY THE CIVIL SERVICE COMMISSION) PROVIDE:

"THESE REGULATIONS SHALL NOT APPLY TO:

"/C) TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES.

"/E) EMPLOYEES NOT REQUIRED TO BE CONTINUOUSLY EMPLOYED DURING REGULAR TOUR OF DUTY, SUCH AS (1) PER DIEM OR PER HOUR EMPLOYEES ENGAGED IN AN EMERGENCY WHO MAY BE EMPLOYED FOR MORE THAN ONE 7- OR 8 HOUR SHIFT WITHIN 24 HOURS DURING THE EMERGENCY; (2) PART-TIME OR INTERMITTENT EMPLOYEES; (3) PERSONS ENGAGED UNDER CONTRACT; (4) EMPLOYEES ENGAGED TEMPORARILY FOR LESS THAN A MONTH ON A PIECE-PRICE BASIS; (5) EMPLOYEES WHO ARE PAID AT HOURLY RATES BUT WHO ARE NOT ENGAGED ON CONSTRUCTION WORK, SUCH AS MECHANICS, SKILLED LABORERS, AND OTHERS ENGAGED IN VARIOUS SERVICES ON MAINTENANCE, REPAIR, CLEAN-UP WORK, ETC., WHERE EMPLOYMENT IS MORE OR LESS INTERMITTENT AND NOT ON A REGULAR AND CONTINUOUS BASIS; (6) CONSULTANTS EMPLOYED AND PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED; " AND (7) EMPLOYEES PAID ON A FEE BASIS, SUCH AS PHYSICIANS, SURGEONS, AND OTHER CONSULTANTS.'

THIS QUESTION INVOLVES THE PROPOSITION OF WHETHER, UNDER SECTION 1 OR SECTION 3 OF THE STATUTE OR UNDER BOTH SECTIONS WHEN READ TOGETHER, AN EMPLOYEE UPON TRANSFER OR REAPPOINTMENT TO A FEDERAL POSITION OR EMPLOYMENT WITH SALARY ATTACHED AND NOT UNDER ANY LEAVE SYSTEM MAY BE PAID A LUMP-SUM PAYMENT FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE DUE AT THE TIME. AS NO PROVISION OTHERWISE HAS BEEN MADE BY LAW OR REGULATION FOR TRANSFERRING ACCUMULATED AND CURRENT ACCRUED LEAVE OF AN EMPLOYEE TO A POSITION OR EMPLOYMENT NOT UNDER ANY LEAVE SYSTEM, AND AS THE ACT OF DECEMBER 21, 1944, PROTECTS THE RIGHT OF ALL EMPLOYEES TO ANNUAL OR VACATION LEAVE ACCRUED BUT NOT TAKEN PRIOR TO SEPARATION FROM A POSITION IN WHICH THE LEAVE WAS EARNED AND WHICH IS NOT TRANSFERABLE, THE CONCLUSION APPEARS JUSTIFIED THAT A LUMP SUM PAYMENT FOR LEAVE MAY BE MADE TO THE EMPLOYEES WHOSE CASES ARE REPRESENTED BY THIS QUESTION--- THE DUAL COMPENSATION STATUTES ARE NOT BEING INVOLVED BECAUSE SUCH LUMP-SUM PAYMENTS ARE NOT TO BE REGARDED AS SALARY OR COMPENSATION EXCEPT FOR THE PURPOSES OF TAXATION. ACCORDINGLY, QUESTION (7) IS ANSWERED IN THE AFFIRMATIVE.

THAT DECISION WAS RENDERED TO CARRY OUT THE EVIDENT PURPOSE AND INTENT OF THE 1944 STATUTE, NAMELY, TO PROTECT THE LEAVE BENEFITS OF EMPLOYEES WHO ARE TRANSFERRED FROM A POSITION UNDER THE LEAVE SYSTEM TO EMPLOYMENT--- FOR WHAT APPEARED TO BE OF INDEFINITE DURATION--- NOT UNDER ANY LEAVE SYSTEM. THERE WAS NO INTENTION BY SAID DECISION TO REQUIRE APPLICATION OF THE RULE TO A SET OF FACTS SUCH AS THAT STATED IN QUESTION 1, WHERE THE LEAVE BENEFITS OF THE EMPLOYEES WOULD BE EQUALLY PROTECTED BY CARRYING THE LEAVE OVER A SHORT PERIOD OF EMPLOYMENT DURING WHICH AN EMPLOYEE IS NOT ENTITLED TO EARN LEAVE. THEREFORE, QUESTION 1 (A) IS ANSWERED IN THE AFFIRMATIVE. SEE 17 COMP. GEN. 362.

QUESTION 1 (B) IS REQUIRED TO BE ANSWERED IN THE NEGATIVE BECAUSE TEMPORARY EMPLOYEES ARE NOT ENTITLED BY THE LEAVE LAW AND REGULATIONS TO ACCRUE LEAVE WHILE THEY ARE ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES. IN ADDITION TO THE REGULATION QUOTED IN THE DECISION OF JANUARY 13, 1945, SUPRA, SEE SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161.