B-91558, JANUARY 19, 1950, 29 COMP. GEN. 305

B-91558: Jan 19, 1950

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IS REQUIRED. 1950: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 22. THE FACTS AS RELATED IN YOUR LETTER ARE THAT ONE EDWARD J. WHEN HIS EMPLOYMENT WAS CHANGED FROM FULL TIME TO PART TIME. THAT AS PART TIME EMPLOYEES WERE EXCLUDED AT THAT TIME FROM THE BENEFITS OF THE LEAVE ACTS HE WAS PAID IN A LUMP SUM FOR 56 HOURS OF LEAVE. WAS THE EMPLOYEE REEMPLOYED "UNDER THE SAME LEAVE SYSTEM PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY SUCH LEAVE PAYMENT" WITHIN THE MEANING OF THE STATUTE? 2. IF YOUR ANSWER TO QUESTIONS NO. 1 OR 2 IS IN THE AFFIRMATIVE. SUCH ACTS ARE HEREBY AMENDED ACCORDINGLY. IT MUST BE CONCLUDED THAT SUCH EMPLOYEES NOW ARE UNDER THE SAME LEAVE SYSTEM WITHIN THE MEANING OF THE FIRST PROVISO OF SECTION 1 OF THE LUMP-SUM LEAVE ACT OF DECEMBER 21.

B-91558, JANUARY 19, 1950, 29 COMP. GEN. 305

LUMP-SUM LEAVE PAYMENTS - REFUNDS UPON CHANGE IN EMPLOYMENT FROM FULL TIME TO PART TIME POSITION AN EMPLOYEE WHO RECEIVED A LUMP-SUM PAYMENT FOR ACCRUED LEAVE UPON CHANGE OF HIS FULL TIME POSITION TO A PART TIME POSITION PRIOR TO THE ACT OF OCTOBER 5, 1949, PLACING PART TIME EMPLOYEES UNDER THE SAME LEAVE SYSTEM AS FULL TIME EMPLOYEES, IS REQUIRED, UNDER SECTION 1 OF THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, TO REFUND SO MUCH OF THE LUMP-SUM PAYMENT AS COVERS ACCRUED LEAVE EXTENDING BEYOND THE DATE OF THE 1949 ACT, ACCRUED LEAVE BEING ABSORBED, DURING THE PERIOD BETWEEN THE DATE OF THE CHANGE IN POSITION AND THE DATE OF THE ACT, AT THE RATE OF EIGHT HOURS FOR EACH WORKDAY.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, FEDERAL SECURITY AGENCY, JANUARY 19, 1950:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 22, 1949, REQUESTING DECISION UPON CERTAIN QUESTIONS HEREINAFTER SET FORTH RELATIVE TO THE EFFECT OF THE PROVISIONS OF PUBLIC LAW 316, APPROVED OCTOBER 5, 1949, INFRA, UPON A LUMP-SUM PAYMENT THERETOFORE MADE UNDER THEN EXISTING LEAVE LAWS.

THE FACTS AS RELATED IN YOUR LETTER ARE THAT ONE EDWARD J. HUGHES HAD BEEN EMPLOYED FULL TIME IN A POSITION AS CLASSIFICATION CLERK IN THE PUBLIC HEALTH SERVICE UNTIL OCTOBER 3, 1949, WHEN HIS EMPLOYMENT WAS CHANGED FROM FULL TIME TO PART TIME--- WORKING FOUR HOURS EACH DAY, MONDAY THROUGH FRIDAY; THAT AS PART TIME EMPLOYEES WERE EXCLUDED AT THAT TIME FROM THE BENEFITS OF THE LEAVE ACTS HE WAS PAID IN A LUMP SUM FOR 56 HOURS OF LEAVE, WHICH REMAINED TO HIS CREDIT AT THE TIME OF THE CHANGE FROM FULL TIME TO PART TIME EMPLOYMENT; THAT UNDER PUBLIC LAW 316, APPROVED OCTOBER 5, 1949, HE BECAME ENTITLED TO THE BENEFITS PRO RATA OF THE LEAVE ACTS; AND THAT BY VIRTUE OF SAID PUBLIC LAW 316 IT RESULTS THAT THE LUMP-SUM PAYMENT MADE ACTUALLY COVERS A PERIOD DURING WHICH HE EARNED LEAVE AS A PART TIME EMPLOYEE--- ALL UNDER THE SAME LEAVE SYSTEM. UPON THOSE STATED FACTS YOU PRESENT FOR CONSIDERATION THE FOLLOWING QUESTIONS:

1. WAS THE EMPLOYEE REEMPLOYED "UNDER THE SAME LEAVE SYSTEM PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY SUCH LEAVE PAYMENT" WITHIN THE MEANING OF THE STATUTE?

2. SHOULD THE EMPLOYEE BE REQUIRED TO REFUND THE AMOUNT NECESSARY TO COVER THE UNEXPIRED PORTION OF THE LUMP-SUM LEAVE PERIOD IN WHICH HE EARNED LEAVE AS A PART-TIME EMPLOYEE?

3. IF YOUR ANSWER TO QUESTIONS NO. 1 OR 2 IS IN THE AFFIRMATIVE, SHOULD THE REFUND COVER 48 HOURS (DEDUCTING 8 HOURS FOR OCTOBER 3 AND 4) OR 40 HOURS (DEDUCTING 16 HOURS FOR OCTOBER 3 AND (?

THE REFERRED-TO ACT OF OCTOBER 5, 1949, PUBLIC LAW 316, 63 STAT. 703, PROVIDES:

THAT PART-TIME OFFICERS AND EMPLOYEES FOR WHOM THERE HAS BEEN ESTABLISHED A REGULAR TOUR OF DUTY COVERING NOT LESS THAN FIVE DAYS IN ANY ADMINISTRATIVE WORKWEEK SHALL, UNLESS OTHERWISE EXCEPTED, BE ENTITLED TO THE BENEFITS PRO RATA OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936 (49 STAT. 1161 AND 1162, RESPECTIVELY), AND SUCH ACTS ARE HEREBY AMENDED ACCORDINGLY.

AS SAID ACT GRANTS PART TIME EMPLOYEES PRO RATA ANNUAL AND SICK LEAVE BENEFITS UNDER THE LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161, 1162, IT MUST BE CONCLUDED THAT SUCH EMPLOYEES NOW ARE UNDER THE SAME LEAVE SYSTEM WITHIN THE MEANING OF THE FIRST PROVISO OF SECTION 1 OF THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, 58 STAT. 845. ACCORDINGLY, QUESTIONS 1 AND 2 ARE ANSWERED IN THE AFFIRMATIVE. 27 COMP. GEN. 472.

WITH RESPECT TO QUESTION 3, IT IS PRESUMED THAT THE LUMP-SUM PAYMENT UNDER THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, REPRESENTED COMPENSATION FOR 7 FULL WORKDAYS OF 8 HOURS, OR 56 HOURS, COMMENCING ON OCTOBER 3, 1949. SINCE, ON THE EFFECTIVE DATE OF PUBLIC LAW 316, NAMELY, OCTOBER 5, 1949, THE UNEXPIRED PORTION OF THE LUMP-SUM LEAVE PERIOD CONSISTED OF 5 FULL WORKDAYS OF 8 HOURS, THE AMOUNT FOR REFUNDING IN RESPECT OF SAID UNEXPIRED PERIOD WOULD REPRESENT COMPENSATION FOR 5 FULL WORKDAYS, OR 40 HOURS, AND, UPON MAKING SUCH REFUND, THE EMPLOYEE WOULD BE ENTITLED TO CREDIT, AS OF OCTOBER 5, OF ANNUAL LEAVE AMOUNTING TO 40 HOURS. ACCORDINGLY, THE SECOND ALTERNATE PART OF QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE.