A-84992, APRIL 16, 1937, 16 COMP. GEN. 934

A-84992, APRIL 16, 1937, 16 COMP. GEN. 934

LEAVES OF ABSENCE - ANNUAL AND SICK - ACTS, MARCH 14, 1936 - DETERMINATIONS WHETHER TEMPORARY OR PERMANENT EMPLOYEES FOR ANNUAL AND SICK LEAVE OF ABSENCE PURPOSES UNDER THE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, AND REGULATIONS ISSUED THEREUNDER, EMPLOYEES ARE EITHER PERMANENT OR TEMPORARY, DEPENDING UPON THE TERMS OF THEIR APPOINTMENT. IF THE TERMINATION OF THEIR EMPLOYMENT IS NOT FIXED IN ADVANCE, AND STATED IN THE APPOINTMENT OR CONTRACT OF EMPLOYMENT, THE EMPLOYEES ARE PERMANENT FOR LEAVE PURPOSES WHETHER THEIR ACTUAL SERVICE IS MORE OR LESS THAN SIX MONTHS AND THEY ARE ENTITLED TO 2 1/6 DAYS' ANNUAL LEAVE, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, FOR EACH FULL MONTH OF SERVICE, BUT IF THE TERMINATION OF THE EMPLOYMENT IS FIXED IN ADVANCE AT A DATE NOT EXCEEDING SIX MONTHS FROM EFFECTIVE DATE OF APPOINTMENT, AND STATED IN THE APPOINTMENT OR CONTRACT OF EMPLOYMENT, THE EMPLOYEES ARE TEMPORARY FOR LEAVE PURPOSES AND ARE ENTITLED TO 2 1/2 DAYS' ANNUAL LEAVE, INCLUSIVE OF SUNDAYS AND HOLIDAYS, FOR EACH FULL MONTH OF SERVICE. WHERE, NOTWITHSTANDING IT IS KNOWN IN ADVANCE THAT SHORT-TERM EMPLOYEES WILL NOT SERVE SIX MONTHS, THE TERMINATION DATE OF EMPLOYMENT IS UNCERTAIN AND IS NOT FIXED AND STATED IN THE APPOINTMENT, SUCH EMPLOYEES MUST BE REGARDED PERMANENT FOR LEAVE PURPOSES, BUT IF THE APPOINTMENTS OR CONTRACTS OF EMPLOYMENT FIX A PERIOD OF EMPLOYMENT "NOT TO EXCEED 6 MONTHS," EVEN THOUGH THE EXACT DATE OF TERMINATION IS NOT STATED, SUCH EMPLOYEES MUST BE REGARDED AS TEMPORARY FOR LEAVE PURPOSES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, APRIL 16, 1937:

YOUR LETTER OF APRIL 1, 1937, IS AS FOLLOWS:

REFERENCE IS MADE TO DECISION 16 COMP. GEN. 678 HOLDING, WITH RESPECT TO ANNUAL AND SICK LEAVE, THAT EMPLOYEES APPOINTED FOR INDEFINITE PERIODS ARE TO BE CLASSED AS PERMANENT.

IT IS NOT CLEAR WHETHER THIS INTERPRETATION IS INTENDED TO APPLY ALSO TO PERSONS EMPLOYED FOR INDEFINITE PERIODS NOT EXCEEDING SIX MONTHS YEARLY. IN MANY PLACES IN THE FOREST SERVICE THE SHORT-TERM PROTECTION FORCE IS EMPLOYED FOR INDEFINITE PERIODS NORMALLY LESS THAN SIX MONTHS, THE EXACT DURATION, HOWEVER, DEPENDING UPON THE WEATHER AND FIRE-HAZARD CONDITIONS. IN SOME INSTANCES IT IS KNOWN IN ADVANCE THAT THE EMPLOYMENT WILL NOT CONTINUE FOR AS LONG AS SIX MONTHS. IN OTHERS, WHERE, FOR EXAMPLE, FIVE MONTHS EMPLOYMENT IS CONTEMPLATED, AN UNUSUALLY LONG DRY SEASON MAY RESULT IN CONTINUING THE EMPLOYMENT BEYOND SIX MONTHS. IN STILL OTHER CASES SHORT TERM EMPLOYMENTS FOR FIRE PROTECTION MAY EXTEND NORMALLY BEYOND SIX MONTHS, AND IT IS UNDERSTOOD THAT THESE CASES FOR LEAVE PURPOSES WOULD BE CLASSED AS PERMANENT APPOINTEES.

DECISION IS REQUESTED WHETHER THE SHORT-TERM EMPLOYEES SHOULD BE CLASSED AS TEMPORARY OR PERMANENT FOR LEAVE PURPOSES IN THE FOLLOWING CASES:

A. WHERE IT IS KNOWN IN ADVANCE THAT THE INDEFINITE PERIOD WILL NOT EXCEED SIX MONTHS.

B. WHERE THE EMPLOYMENT NORMALLY WILL NOT EXCEED SIX MONTHS, BUT WHERE AN UNUSUALLY LONG DRY SEASON MAY NECESSITATE EXTENSION BEYOND SIX MONTHS.

IF EITHER A OR B IS CLASSED AS TEMPORARY, YOUR FURTHER DECISION IS DESIRED AS TO THE LEAVE STATUS IN THE EVENT THE EMPLOYMENT SHOULD CONTINUE BEYOND SIX MONTHS:

1. WOULD THE EMPLOYEE BE ENTITLED TO LEAVE AT 2 1/2 DAYS A MONTH FOR THE FIRST SIX MONTHS AND 2 1/6 DAYS THEREAFTER, OR---

2. AFTER HAVING PASSED THE SIX MONTHS LIMIT WOULD IT BE NECESSARY TO CONVERT ALL LEAVE DURING THE EMPLOYMENT PERIOD TO A 2 1/6 DAYS BASIS?

IF, UNDER NUMBER 2 CONVERSION FOR THE FULL PERIOD TO A 2 1/6 DAYS BASIS IS REQUIRED AND THE LEAVE ACTUALLY TAKEN AT THE RATE OF 2 1/2 DAYS A MONTH DURING THE FIRST SIX MONTHS EXCEEDS THE LEAVE EARNED FOR THE TOTAL EMPLOYMENT PERIOD AT 2 1/6 DAYS, WILL DEDUCTION OR REFUND OF THE EXCESS BE REQUIRED?

INSOFAR AS THE QUESTIONS HERE PRESENTED ARE CONCERNED, THE LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, RECOGNIZE ONLY TWO GENERAL CLASSES OF EMPLOYEES FOR LEAVE PURPOSES, NAMELY, PERMANENT AND TEMPORARY. LEAVE BENEFITS PROVIDED BY THE STATUTE FOR THE TWO CLASSES OF EMPLOYEES DIFFER. IN THE ABSENCE OF A DEFINITION IN THE STATUTE OF THE TERMS "PERMANENT" AND "TEMPORARY," IT WAS NECESSARY FOR THE PRESIDENT, UNDER THE AUTHORITY VESTED IN HIM BY THE STATUTE, TO DEFINE BY REGULATION WHAT CONSTITUTES A PERMANENT AND A TEMPORARY EMPLOYEE FOR LEAVE PURPOSES.

SECTION 14 OF THE UNIFORM ANNUAL LEAVE REGULATIONS PROVIDES AS FOLLOWS:

* * * FOR LEAVE PURPOSES, PERSONS WHO ARE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS SHALL BE CONSIDERED TEMPORARY EMPLOYEES.

SEE, ALSO, SECTION 17 OF THE UNIFORM SICK LEAVE REGULATIONS.

THESE REGULATIONS WERE PROMULGATED PURSUANT TO STATUTE AND HAVE THE FORCE AND EFFECT OF LAW. ALL EMPLOYEES NOT COMING WITHIN THE PURVIEW OF THE TERM "TEMPORARY," AS DEFINED BY THE REGULATIONS, AND OTHERWISE ENTITLED TO LEAVE OF ABSENCE WITH PAY, ARE, OF NECESSITY, TO BE DEEMED AS PERMANENT EMPLOYEES FOR LEAVE PURPOSES, EVEN THOUGH THEY MAY BE REGARDED AS TEMPORARY EMPLOYEES FOR OTHER PURPOSES. WHETHER EMPLOYEES ARE PERMANENT OR TEMPORARY MUST, OF NECESSITY, BE DETERMINED BY THE TERMS OF THEIR APPOINTMENTS OR CONTRACTS OF EMPLOYMENT. IF THE TERMINATION OF THE EMPLOYMENT IS NOT FIXED IN ADVANCE AND STATED IN THE APPOINTMENT OR CONTRACT OF EMPLOYMENT, OR IF FIXED IN ADVANCE AT A DATE EXCEEDING SIX MONTHS FROM EFFECTIVE DATE OF THE APPOINTMENT AND STATED IN THE APPOINTMENT OR CONTRACT OF EMPLOYMENT, THE EMPLOYEES ARE PERMANENT FOR LEAVE PURPOSES REGARDLESS OF WHETHER THEIR LENGTH OF ACTUAL SERVICE IS MORE OR LESS THAN SIX MONTHS. SUCH EMPLOYEES ARE ENTITLED TO 2 1/6 DAYS ANNUAL LEAVE, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, FOR EACH FULL MONTH OF SERVICE. ON THE OTHER HAND, IF THE TERMINATION OF THE EMPLOYMENT IS FIXED IN ADVANCE AT A DATE NOT EXCEEDING SIX MONTHS FROM EFFECTIVE DATE OF APPOINTMENT AND STATED IN THE APPOINTMENT OR CONTRACT OF EMPLOYMENT, THE EMPLOYEES ARE TEMPORARY FOR LEAVE PURPOSES. THESE EMPLOYEES ARE ENTITLED TO 2 1/2 DAYS ANNUAL LEAVE, INCLUSIVE OF SUNDAYS AND HOLIDAYS, FOR EACH FULL MONTH OF SERVICE.

IT IS UNDERSTOOD FROM THE STATEMENTS IN YOUR LETTER THAT WHILE IT IS SOMETIMES KNOWN IN ADVANCE THAT SHORT-TERM EMPLOYEES WILL NOT SERVE 6 MONTHS, THE TERMINATION DATE OF EMPLOYMENT IS UNCERTAIN AND IS NOT FIXED AND STATED IN THE APPOINTMENT. IF THESE ARE THE FACTS, ALL OF THE EMPLOYEES REFERRED TO MUST BE CLASSIFIED AS PERMANENT EMPLOYEES FOR LEAVE PURPOSES AND ARE ENTITLED TO 2 1/6 DAYS' ANNUAL LEAVE OF ABSENCE, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, FOR EACH FULL MONTH OF SERVICE, REGARDLESS OF THE ACTUAL LENGTH OF SERVICE. HOWEVER, IF THE APPOINTMENTS OR CONTRACTS OF EMPLOYMENT FIX A PERIOD OF EMPLOYMENT "NOT TO EXCEED 6 MONTHS," EVEN THOUGH THE EXACT DATE OF TERMINATION IS NOT STATED, THE EMPLOYEES SHOULD BE REGARDED AS TEMPORARY FOR LEAVE PURPOSES.