B-64672, APRIL 8, 1947, 26 COMP. GEN. 762

B-64672: Apr 8, 1947

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AN EMPLOYEE PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS UNDER AN APPOINTMENT FOR A DEFINITE PERIOD OF TIME NOT EXCEEDING 1 YEAR IS TO BE REGARDED AS A "TEMPORARY" EMPLOYEE WITHIN THE DEFINITION OF THAT TERM IN SECTION 1.1 (C) OF THE CURRENT ANNUAL AND SICK LEAVE REGULATIONS. DOES NOT ACCRUE LEAVE FOR A MONTH DURING WHICH HE IS AVAILABLE FOR DUTY BUT DOES NOT RENDER CONTINUOUS SERVICE FOR SUCH PERIOD. IT IS PRESENTED HEREWITH. SECTION 1.1 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS IN QUOTED AS FOLLOWS: "/B) "PERMANENT EMPLOYEES" ARE THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE OR FOR DEFINITE PERIODS IN EXCESS OF ONE YEAR. ARE CONTINUOUSLY EMPLOYED OR REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN ONE MONTH.

B-64672, APRIL 8, 1947, 26 COMP. GEN. 762

LEAVES OF ABSENCE - "WHEN ACTUALLY EMPLOYED" EMPLOYEES THE ELIMINATION IN THE CURRENT ANNUAL AND SICK LEAVE REGULATIONS, EFFECTIVE JULY 1, 1946, OF THE SEPARATE DEFINITION OF "INDEFINITE EMPLOYEES," WHICH APPEARED IN PRIOR LEAVE REGULATIONS, AND THE INCORPORATION THEREOF INTO THE DEFINITION OF "PERMANENT EMPLOYEES," AS CONTAINED IN SAID CURRENT REGULATIONS, IN NOWISE AFFECTS THE BASIS UPON WHICH EMPLOYEES COMING WITHIN THE FORMER DEFINITION OF "INDEFINITE EMPLOYEES" NOW WOULD BE ENTITLED TO LEAVE. AN EMPLOYEE PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS UNDER AN APPOINTMENT FOR A DEFINITE PERIOD OF TIME NOT EXCEEDING 1 YEAR IS TO BE REGARDED AS A "TEMPORARY" EMPLOYEE WITHIN THE DEFINITION OF THAT TERM IN SECTION 1.1 (C) OF THE CURRENT ANNUAL AND SICK LEAVE REGULATIONS, RATHER THAN AS A ,PERMANENT" EMPLOYEE AS DEFINED IN SECTION 1.1 (B) OF SAID REGULATIONS, AND, IF OTHERWISE ENTITLED THERETO, ACCRUES ANNUAL LEAVE AT THE RATE OF 2 1/2 DAYS FOR EACH MONTH OF SERVICE. A "WHEN ACTUALLY EMPLOYED" EMPLOYEE ACCRUES LEAVE UNDER THE CURRENT ANNUAL AND SICK LEAVE REGULATIONS AS A "PERMANENT" OR "TEMPORARY" EMPLOYEE, AS THE CASE MAY BE, ONLY FOR PERIODS OF CONTINUOUS SERVICE OF 1 MONTH OR MORE, AND DOES NOT ACCRUE LEAVE FOR A MONTH DURING WHICH HE IS AVAILABLE FOR DUTY BUT DOES NOT RENDER CONTINUOUS SERVICE FOR SUCH PERIOD. A "WHEN ACTUALLY EMPLOYED" EMPLOYEE, WHO HAS ESTABLISHED HIS RIGHT TO ANNUAL LEAVE EITHER AS A ,PERMANENT" OR "TEMPORARY" EMPLOYEE UNDER THE CURRENT ANNUAL AND SICK LEAVE REGULATIONS, MAY, TO THE EXTENT OF HIS ACCRUED ANNUAL LEAVE, BE CARRIED IN A LEAVE-WITH-PAY STATUS ON DAYS WHEN HE DOES NOT WORK; HOWEVER, THE EMPLOYEE MAY NOT BE CARRIED IN A LEAVE- WITHOUT-PAY STATUS FOR SUCH DAYS SO AS TO REQUIRE A DEDUCTION FROM HIS PREVIOUSLY EARNED LEAVE CREDITS--- THE EFFECT OF A BREAK IN THE CONTINUITY OF SERVICE BEING TO PREVENT ACCRUAL OF LEAVE FOR THE MONTH IN WHICH IT OCCURS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, APRIL 8, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 17, 1947, AS FOLLOWS:

A PROBLEM HAS ARISEN IN THE ADMINISTRATION OF THE ANNUAL AND SICK LEAVE REGULATIONS WHICH APPEARS TO REQUIRE CONSIDERATION BY YOUR OFFICE. IT IS PRESENTED HEREWITH, WITH SPECIFIC QUESTIONS FOR YOUR DECISION.

SECTION 1.1 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS IN QUOTED AS FOLLOWS:

"/B) "PERMANENT EMPLOYEES" ARE THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE OR FOR DEFINITE PERIODS IN EXCESS OF ONE YEAR, 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.'

IN THE WAR DEPARTMENT THERE ARE MANY TYPES OF POSITIONS WHICH ARE FILLED ON A "WHEN ACTUALLY EMPLOYED" BASIS AND THE PERSONS OCCUPYING THOSE POSITION MAY BE APPOINTED UNDER ANY REGULATION PERTAINING TO FULL-TIME GRADED EMPLOYEES. THEY MAY OCCUPY GRADED OR UNGRADED POSITIONS; AT PER ANNUM, HOURLY, PER DIEM OR PIECE-WORK RATES; UNDER LIMITED OR UNLIMITED APPOINTMENTS; ON A REGULARLY SCHEDULED TOUR OF DUTY OF 40 HOURS PER WEEK, ANY PORTION THEREOF OR ON AN UNSCHEDULED BASIS. THE PROVISIONS OF SECTION 1.1 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS, QUOTED ABOVE, DO NOT SEEM TO RECOGNIZE THAT "WHEN ACTUALLY EMPLOYED" EMPLOYEES COULD BE APPOINTED ON A ,TEMPORARY" (FOR LEAVE PURPOSES) BASIS, BUT MANY SUCH EMPLOYEES DO HAVE APPOINTMENTS FOR SPECIFIED PERIODS OF TIME RANGING FROM 30 DAYS TO 12 MONTHS. THE REGULATIONS AND DECISIONS ARE ENTIRELY CLEAR REGARDING THE LEAVE RIGHTS OF "WHEN ACTUALLY EMPLOYED" EMPLOYEES WHO OCCUPY POSITIONS ON A FULL TIME BASIS UNDER UNLIMITED OR INDEFINITE APPOINTMENTS. HOWEVER, YOUR DECISIONS ARE SOLICITED ON THE FOLLOWING QUESTIONS.

1. DO " WAE" EMPLOYEES OCCUPYING FULL-TIME POSITIONS WHOSE APPOINTMENTS ARE LIMITED TO PERIODS OF LESS THAN ONE YEAR EARN LEAVE ON A "PERMANENT" OR "TEMPORARY" BASIS?

2. MAY A " WAE" EMPLOYEE, WHO HAS ESTABLISHED HIS RIGHT TO LEAVE, BE CARRIED IN A LEAVE-WITH-PAY STATUS ON ANY DAY ON WHICH HE DOES NOT WORK OR MUST THOSE DAYS ON WHICH HIS SERVICES ARE NOT REQUIRED BE CONSIDERED AS NON-PAY DAYS (ABSENCE WITHOUT PAY) AND SUBSEQUENT REDUCTIONS OF LEAVE CREDITS COMPUTED?

A SPECIFIC CASE IS CITED AS AN EXAMPLE OF THE PROBLEMS ENCOUNTERED:

COLD STORAGE WAREHOUSEMAN, 72 CENTS PER HOUR, APPOINTED EFFECTIVE AUGUST 1, 1946, UNDER SECTION 4, TEMPORARY CIVIL SERVICE REGULATION NO. VIII," WAE," NOT TO EXCEED 6 MONTHS. ALTHOUGH HE WAS AVAILABLE FOR DUTY, HIS SERVICES WERE UTILIZED ONLY AS FOLLOWS:

" AUGUST 1--- 8 HOURS.

" AUGUST 5 THROUGH AUGUST 9--- 8 HOURS PER DAY.

" AUGUST 12 THROUGH AUGUST 16--- 6 HOURS PER DAY.

" AUGUST 19 THROUGH AUGUST 23--- 4 HOURS PER DAY.

" AUGUST 26 THROUGH AUGUST 30--- 8 HOURS PER DAY.'

3. HOW MUCH, IF ANY, ANNUAL AND SICK LEAVE DID THIS EMPLOYEE EARN FOR AUGUST, 1946?

4. IF THIS EMPLOYEE HELD AN UNLIMITED APPOINTMENT ON A FULL-TIME BASIS, WHAT WOULD BE THE ANSWER TO QUESTION NO, 3?

YOUR EARLY DECISION ON THESE QUESTIONS WILL BE GREATLY APPRECIATED.

IN ADDITION TO THE PROVISIONS OF SECTION 1.1 (B) OF THE CURRENT CIVIL SERVICE LEAVE REGULATIONS (CH. Z1, P. 451, FEDERAL PERSONNEL MANUAL), QUOTED IN YOUR LETTER, SECTION 1.1 (C) OF THOSE REGULATIONS PROVIDES:

"TEMPORARY EMPLOYEES" ARE THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING ONE YEAR.

BEFORE ANSWERING SPECIFICALLY THE QUESTIONS PRESENTED IN YOUR SUBMISSION, IT IS DEEMED APPROPRIATE TO REFER BRIEFLY TO THE PERTINENT PROVISIONS OF THE LEAVE REGULATIONS IN EFFECT BEFORE THE ISSUANCE OF THE CURRENT REGULATIONS AND TO CONSIDER THE EFFECT GIVEN THERETO IN PRIOR DECISIONS OF THIS OFFICE. IN THAT CONNECTION, IT WILL BE NOTED THAT SO MUCH OF THE DEFINITION OF "PERMANENT EMPLOYEES" IN THE CURRENT REGULATIONS AS EXPRESSLY REFERS TO EMPLOYEES PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS FORMERLY WAS CONTAINED, INTER ALIA, IN THE DEFINITION OF "INDEFINITE EMPLOYEES" APPEARING IN THE IMMEDIATELY PRECEDING REGULATION (REVISED EFFECTIVE JANUARY 1, 1945), WHICH PROVIDED:

SECTION 1.1 AS USED IN THESE REGULATIONS:

(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 THAN 1 MONTH, AS DISTINGUISHED FROM PART-TIME OR INTERMITTENT EMPLOYEES.

THAT DEFINITION OF "INDEFINITE EMPLOYEES" FIRST APPEARED IN SECTION 1 (E), PART 1, OF EXECUTIVE ORDER NO. 7845, MARCH 21, 1938, EFFECTIVE JANUARY 1, 1948, AND, WITH RESPECT THERETO, IT WAS STATED IN DECISION OF MAY 27, 1938, 17 COMP. GEN. 1017, AT PAGE 1020, AS FOLLOWS:

* * * THE PHRASE IN THE DEFINITION OF INDEFINITE EMPLOYEES "REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN 1 MONTH" SHOULD BE READ IN CONNECTION WITH THE PRECEDING WORDS ,CONTINUOUSLY EMPLOYED," AND SIMPLY MEANS THAT TO BE CLASSED AS AN INDEFINITE EMPLOYEE THE MINIMUM PERIOD THE EMPLOYEE SERVES OR IS ON CALL FOR DUTY WHEN NEEDED MUST NOT BE LESS THAN 1 MONTH, BUT THE PHRASE DOES NOT MEAN THAT ANNUAL OR SICK LEAVE MAY BE CREDITED TO AN EMPLOYEE FOR LAYOFF OR FURLOUGH PERIODS WITHOUT PAY OR FOR PERIODS OF CONTINUOUS SERVICE OF LESS THAN 1 MONTH. THE DEFINITION STANDING ALONE DOES NOT GRANT LEAVE BUT MUST BE CONSIDERED IN CONNECTION WITH THE STATUTES AND THE OTHER SECTIONS OF THE REGULATIONS. ANNUAL AND SICK LEAVE MAY BE CREDITED TO INDEFINITE EMPLOYEES ONLY FOR PERIODS OF CONTINUOUS SERVICE OF 1 MONTH OR MORE WHICH MAY BE CARRIED OVER FROM ONE SUCH PERIOD OF CONTINUOUS SERVICE TO ANOTHER. * * *

ALSO, IN DECISION OF NOVEMBER 17, 1938, 18 COMP. GEN. 457, IT WAS STATED:

WHEN AN EMPLOYEE IS GIVEN AN APPOINTMENT FOR AN INDEFINITE PERIOD WITH COMPENSATION AT PER DIEM RATES WHEN ACTUALLY EMPLOYED, IT IS TO BE PRESUMED THAT HE WILL BE AVAILABLE FOR DUTY WHENEVER CALLED ALTHOUGH PERFORMANCE EACH TIME CALLED MAY NOT BE COMPULSORY. SUCH AN APPOINTMENT ENTITLES THE EMPLOYEE TO ANNUAL LEAVE AT THE RATE OF 2 1/6 DAYS PER MONTH IF AND WHEN THE PERIOD OF SERVICE RENDERED IS SUFFICIENT IN ACCORDANCE WITH 17 COMP. GEN. 1017. IF THE APPOINTMENT IS LIMITED TO A DEFINITE PERIOD OF LESS THAN 6 MONTHS, WITH COMPENSATION ON A PER DIEM BASIS WHEN ACTUALLY EMPLOYED, THE EMPLOYEE IS ENTITLED TO LEAVE AT THE RATE OF 2 1/2 DAYS' LEAVE FOR EACH MONTH OF CONTINUOUS SERVICE, ALSO IN ACCORDANCE WITH 17 COMP. GEN. 1017. SEE ALSO IN THIS CONNECTION DECISION OF OCTOBER 31, 1938, A-98734, 18 COMP. GEN. 400.

THE ELIMINATION OF THE SEPARATE DEFINITION OF "INDEFINITE EMPLOYEES" AND THE INCORPORATION THEREOF INTO THE DEFINITION OF "PERMANENT EMPLOYEES" AS CONTAINED IN THE CURRENT LEAVE REGULATIONS, IN NOWISE AFFECTS THE BASIS UPON WHICH EMPLOYEES COMING WITHIN THE FORMER DEFINITION OF "INDEFINITE EMPLOYEE" NOW WOULD BE ENTITLED TO LEAVE. CONSEQUENTLY, APPLYING THE PRINCIPLES ENUNCIATED IN THE QUOTED DECISIONS TO THAT PART OF THE DEFINITION OF "PERMANENT EMPLOYEES" APPEARING IN THE CURRENT LEAVE REGULATION WHICH REFERS TO EMPLOYEES PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS, IT IS CONCLUDED THAT AN EMPLOYEE PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS UNDER AN APPOINTMENT FOR A DEFINITE PERIOD OF TIME NOT EXCEEDING ONE YEAR, IF OTHERWISE ENTITLED THERETO, EARNS LEAVE AS A ,TEMPORARY" EMPLOYEE, THAT IS ON THE BASIS OF 2 1/2 DAYS' ANNUAL LEAVE FOR EACH MONTH OF SERVICE. FURTHER, A "WHEN ACTUALLY EMPLOYED EMPLOYEE," WHETHER SERVING UNDER AN INDEFINITE APPOINTMENT OR UNDER AN APPOINTMENT FOR A DEFINITE PERIOD OF TIME NOT EXCEEDING ONE YEAR, IS ENTITLED TO LEAVE ONLY FOR PERIODS OF CONTINUOUS SERVICE OF ONE MONTH OR MORE ON THE BASIS EITHER OF A "PERMANENT" EMPLOYEE OR A "TEMPORARY" EMPLOYEE DEPENDING UPON THE TERMS OF HIS APPOINTMENT.

IN THE LIGHT OF THE FOREGOING, YOU ARE ADVISED IN ANSWER TO QUESTION 1 THAT THE EMPLOYEE WOULD EARN LEAVE AS A "TEMPORARY EMPLOYEE.' WITH RESPECT TO QUESTION 2, IT MAY BE STATED THAT AFTER THE EMPLOYEE HAS ESTABLISHED HIS RIGHT TO LEAVE HE THEREAFTER PROPERLY COULD BE CARRIED IN A LEAVE-WITH-PAY STATUS ON THE DAYS WHEN HE DOES NOT WORK TO THE EXTENT OF HIS ACCUMULATED LEAVE; BUT THERE IS NO AUTHORITY TO CARRY SUCH AN EMPLOYEE IN A LEAVE-WITHOUT-PAY STATUS FOR ANY DAY ON WHICH HE IS NOT REQUIRED TO WORK SO AS TO REQUIRE A DEDUCTION FROM THE LEAVE CREDIT PREVIOUSLY EARNED BY HIM. RATHER, SINCE ANY BREAK IN THE CONTINUITY OF THE EMPLOYEE'S SERVICE WOULD DEFEAT HIS RIGHT TO ACCRUE LEAVE FOR THE MONTH OF SERVICE IN WHICH THE BREAK OCCURRED, HE SIMPLY WOULD RECEIVE NO LEAVE CREDIT FOR THAT PARTICULAR SERVICE MONTH. QUESTIONS 3 AND 4 ARE ANSWERED BY SAYING THAT, IN THE EXAMPLE GIVEN, THE EMPLOYEE WOULD EARN NO LEAVE FOR AUGUST, 1946, REGARDLESS OF WHETHER HIS APPOINTMENT WAS FOR AN INDEFINITE PERIOD OR FOR A DEFINITE PERIOD NOT TO EXCEED 1 YEAR.