B-61872, DECEMBER 19, 1946, 26 COMP. GEN. 421

B-61872: Dec 19, 1946

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WHEN ACTUALLY EMPLOYED BASIS CENSUS ENUMERATORS WHO ARE APPOINTED ON A PER HOUR OR PER DIEM. WHEN ACTUALLY-EMPLOYED BASIS FOR DEFINITE PERIODS OF TIME NOT TO EXCEED ONE YEAR OR FOR AN INDEFINITE PERIOD FOR THE DURATION OF THE WAR AND SIX MONTHS THEREAFTER AND WHO HAVE NO REGULAR TOUR OF DUTY ARE TO BE REGARDED AS "PART-TIME OR INTERMITTENT EMPLOYEES" WHO "ARE NOT REQUIRED TO BE CONTINUOUSLY EMPLOYED DURING REGULAR TOUR OF DUTY" WITHIN THE MEANING OF SECTION 6.1 (E) OF THE ANNUAL AND SICK LEAVE REGULATIONS. AS FOLLOWS: A QUESTION HAS ARISEN CONCERNING THE APPLICABILITY OF THE LEAVE REGULATIONS TO CERTAIN EMPLOYEES OF THE BUREAU OF THE CENSUS WHO ARE ENGAGED IN FIELD WORK. SOME OF THESE EMPLOYEES ARE APPOINTED FOR DEFINITE PERIODS NOT TO EXCEED ONE YEAR.

B-61872, DECEMBER 19, 1946, 26 COMP. GEN. 421

LEAVES OF ABSENCE - CENSUS ENUMERATORS EMPLOYED ON PER HOUR OR PER DIEM, WHEN ACTUALLY EMPLOYED BASIS CENSUS ENUMERATORS WHO ARE APPOINTED ON A PER HOUR OR PER DIEM, WHEN ACTUALLY-EMPLOYED BASIS FOR DEFINITE PERIODS OF TIME NOT TO EXCEED ONE YEAR OR FOR AN INDEFINITE PERIOD FOR THE DURATION OF THE WAR AND SIX MONTHS THEREAFTER AND WHO HAVE NO REGULAR TOUR OF DUTY ARE TO BE REGARDED AS "PART-TIME OR INTERMITTENT EMPLOYEES" WHO "ARE NOT REQUIRED TO BE CONTINUOUSLY EMPLOYED DURING REGULAR TOUR OF DUTY" WITHIN THE MEANING OF SECTION 6.1 (E) OF THE ANNUAL AND SICK LEAVE REGULATIONS, AND, AS SUCH, EXCLUDED FROM THE BENEFITS OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, DECEMBER 19, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 6, 1946, AS FOLLOWS:

A QUESTION HAS ARISEN CONCERNING THE APPLICABILITY OF THE LEAVE REGULATIONS TO CERTAIN EMPLOYEES OF THE BUREAU OF THE CENSUS WHO ARE ENGAGED IN FIELD WORK. UNDER AUTHORITY OF SCHEDULE A-11-13, THE BUREAU OF CENSUS APPOINTS ON A PER HOUR OR PER DIEM, WHEN-ACTUALLY 1EMPLOYED BASIS, ENUMERATORS WHO COLLECT BASIC STATISTICAL DATA. SOME OF THESE EMPLOYEES ARE APPOINTED FOR DEFINITE PERIODS NOT TO EXCEED ONE YEAR. OTHERS, UNDER AUTHORITY OF A LETTER FROM THE CIVIL SERVICE COMMISSION DATED SEPTEMBER 7, 1943, HAVE BEEN APPOINTED FOR "AN INDEFINITE PERIOD FOR THE DURATION OF THE WAR AND SIX MONTHS THEREAFTER.'

THE NATURE OF THE WORK OF THESE EMPLOYEES IS SUCH THAT THEY HAVE NO ESTABLISHED WORKING HOURS OR WORK WEEK. THEY ARE NOT GUARANTEED A SPECIFIED NUMBER OF HOURS OF WORK FOR ANY PERIOD OF TIME DURING THEIR EMPLOYMENT. THEY WORK AT WHATEVER TIME IS CONVENIENT TO THE RESPONDENTS WHOM THEY ARE REQUIRED TO INTERVIEW. IF A RESPONDENT SHOULD NOT BE AT HOME ON THE FIRST CALL, THE ENUMERATOR IS REQUIRED TO CALL BACK, AND MANY TIMES THE "CALL-BACK" WILL BE IN THE EVENING HOURS. UNDER THESE CONDITIONS, WHILE THE MAJORITY DO NOT WORK CONTINUOUSLY, AND MAY NEVER WORK 40 HOURS A WEEK, IT IS POSSIBLE FOR AN ENUMERATOR TO WORK DURING ANY WEEK---

A. 8 HOURS A DAY FOR 5 DAYS, DURING THE REGULAR ESTABLISHED HOURS OF THE OFFICE TO WHICH HE IS ASSIGNED;

B. 8 HOURS A DAY FOR 5 DAYS BUT ON A SPLIT-TIME ARRANGEMENT, E.G., 5 HOURS DURING THE DAY AND 3 HOURS AT NIGHT; OR

C. 40 HOURS DURING THE WEEK DISTRIBUTED OVER A TOTAL OF 3 OR 4 DAYS.

PART I, SECTION 1.1B, OF THE REVISED LEAVE REGULATIONS EFFECTIVE JULY 1, 1946, DEFINES ,PERMANENT EMPLOYEES" AS "THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE, OR FOR THE ,DURATION OF THE JOB," OR FOR THE DURATION OF THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER; 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 THAN ONE MONTH, AS DISTINGUISHED FROM PART-TIME OR INTERMITTENT EMPLOYEES.'

THERE ARE APPROXIMATELY 1200 ENUMERATORS ON THE ROLLS OF THE BUREAU. DURING THE PAY PERIOD ENDING OCTOBER 5, ABOUT 500 WERE ACTUALLY EMPLOYED. OF THIS NUMBER, ONLY 119 WORKED 40 HOURS EACH WEEK OF THE PAY PERIOD; 109 WORKED 40 HOURS IN ONE WEEK OF THE PAY PERIOD; AND THE REMAINING ENUMERATORS WORKED LESS THAN 40 HOURS IN EITHER WEEK.

IT WILL BE APPRECIATED IF YOU WILL GIVE US THE ANSWERS TO THE FOLLOWING QUESTIONS:

1. WILL PER HOUR WHEN-ACTUALLY-EMPLOYED ENUMERATORS EARN SICK AND ANNUAL LEAVE IF THEIR MONTH OF CONTINUOUS EMPLOYMENT OR AVAILABILITY FOR DUTY IS COMPLETED UNDER THE CONDITIONS CITED IN PARAGRAPH 2A OF THIS LETTER? PARAGRAPH 2B? AND PARAGRAPH 2C?

2. WILL PER DIEM WHEN-ACTUALLY-EMPLOYED ENUMERATORS EARN SICK AND ANNUAL LEAVE IF THEIR MONTH OF CONTINUOUS EMPLOYMENT OR AVAILABILITY FOR DUTY IS COMPLETED UNDER THE CONDITIONS CITED IN PARAGRAPH 2A OF THIS LETTER? PARAGRAPH 2B? AND PARAGRAPH 2C?

3. IF THE ANSWER IN ANY OR ALL CASES IS IN THE AFFIRMATIVE, ARE THOSE ENUMERATORS WHO HAVE BEEN APPOINTED FOR PERIODS LIMITED TO ONE YEAR OR LESS TO BE CREDITED WITH LEAVE AS "TEMPORARY" OR "PERMANENT" EMPLOYEES? PART I, SECTION 1.1B OF THE REVISED REGULATIONS QUOTED ABOVE MAKES NO REFERENCE TO WHEN-ACTUALLY-EMPLOYED PERSONS IN CONNECTION WITH THE DEFINITION OF " TEMPORARY.''

4. ASSUMING THAT ENUMERATORS REFERRED TO IN PARAGRAPH 2C OF THIS LETTER, DO EARN LEAVE AS ,TEMPORARY" EMPLOYEES, HOW WOULD A MONTH OF SERVICE BE DETERMINED? TWO BI-WEEKLY PAY PERIODS DO NOT CONSTITUTE A MONTH OF SERVICE. CERTAIN DAYS FROM ANOTHER PAY PERIOD WOULD BE INCLUDED TO ROUND OUT A MONTH OF SERVICE, AND IT MIGHT POSSIBLY BE THAT THE EMPLOYEE WOULD PERFORM NO DUTY ON THOSE DAYS.

5. AGAIN ASSUMING THAT ENUMERATORS REFERRED TO IN PARAGRAPH 2C OF THIS LETTER, EARN LEAVE AS ,TEMPORARY" EMPLOYEES, WHAT WOULD CONSTITUTE A "BREAK IN SERVICE" FOR THESE EMPLOYEES?

WE SHOULD APPRECIATE YOUR LETTING US HAVE THE ANSWERS TO THESE QUESTIONS AS SOON AS PRACTICABLE, IN ORDER THAT WE MAY ISSUE APPROPRIATE INSTRUCTIONS TO THE FIELD AND ADMINISTRATIVE SERVICE PERSONNEL OF THE BUREAU OF THE CENSUS.

THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161, AND 1162, APPLY TO "ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED," WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL. SECTIONS 7 OF THESE LEAVE STATUTES PROVIDE:

SEC. 7. THE LEAVE OF ABSENCE HEREIN PROVIDED FOR SHALL BE ADMINISTERED UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, SO AS TO OBTAIN, SO FAR AS IS PRACTICABLE, UNIFORMITY IN THE APPLICATION OF THIS ACT.

BY EXECUTIVE ORDER NO. 9414, JANUARY 13, 1944, THE CIVIL SERVICE COMMISSION WAS AUTHORIZED, FOR THE PERIOD OF THE WAR, TO PROMULGATE AMENDMENTS TO THE LEAVE REGULATIONS PRESCRIBED BY THE PRESIDENT. SECTION 6.1 OF THE CURRENT LEAVE REGULATIONS, EFFECTIVE JULY 1, 1946 ( PAGE Z1- 455, FEDERAL PERSONNEL MANUAL), PROVIDES:

SEC. 6.1. THESE REGULATIONS SHALL NOT APPLY TO:

(E) EMPLOYEES NOT REQUIRED TO BE CONTINUOUSLY EMPLOYED DURING REGULAR TOUR OF DUTY, SUCH AS * * * (2) PART-TIME OR INTERMITTENT EMPLOYEES * *

IT IS SETTLED THAT THE WORDING OF AN EMPLOYEE'S APPOINTMENT DOES NOT NECESSARILY DETERMINE HIS RIGHT TO SICK AND ANNUAL LEAVE IF THE ACTUAL CONDITIONS OF HIS EMPLOYMENT ARE SUCH AS WOULD TAKE HIM WITHOUT THE PURVIEW OF THE LEAVE STATUTES OR THE REGULATIONS ISSUED THEREUNDER. SEE 16 COMP. GEN. 442; 18 ID. 457; 25 ID. 808. HENCE, WHILE AS INDICATED IN THE THIRD PARAGRAPH OF YOUR LETTER, SUPRA, THE TENURE OF THE APPOINTMENTS OF THE CENSUS ENUMERATORS HERE INVOLVED IS SUCH AS MIGHT BRING THEM WITHIN THE SCOPE OF "PERMANENT" OR "TEMPORARY" EMPLOYEES AS THOSE TERMS ARE USED IN PART I, SECTION 1.1 (B) OF THE CURRENT LEAVE REGULATIONS, IT SEEMS CLEAR THAT THE ACTUAL CONDITIONS OF THEIR EMPLOYMENT, AS DESCRIBED IN THE SECOND PARAGRAPH OF YOUR LETTER, ARE SUCH AS TO CONSTITUTE THEM "PART-TIME OR INTERMITTENT EMPLOYEES" WHO "ARE NOT REQUIRED TO BE CONTINUOUSLY EMPLOYED DURING REGULAR TOUR OF DUTY.' CONSEQUENTLY, UNDER THE EXPRESS PROVISIONS OF SECTION 6.1 (E) OF THE CURRENT LEAVE REGULATIONS SUCH EMPLOYEES ARE EXCLUDED FROM THE BENEFITS PROVIDED BY THE SAID 1936 LEAVE STATUTES. COMPARE 25 COMP. GEN. 185. ACCORDINGLY, QUESTIONS 1 AND 2 ARE ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTIONS 3, 4, AND 5.