B-13910, DECEMBER 21, 1940, 20 COMP. GEN. 332

B-13910: Dec 21, 1940

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1936 - TEMPORARY EMPLOYEES EMPLOYEES ORIGINALLY APPOINTED FOR DEFINITE PERIODS NOT EXCEEDING 6 MONTHS WHOSE APPOINTMENTS ARE EXTENDED AT THE END OF 6 MONTHS. OR WHO ARE GIVEN NEW TEMPORARY APPOINTMENTS AT SUCH TIME. ARE TO BE REGARDED AS TEMPORARY EMPLOYEES FOR LEAVE PURPOSES REGARDLESS OF THE AGGREGATE LENGTH OF SERVICE. SUCH A SERIES OF APPOINTMENTS OR EXTENSIONS IS TO BE CONSIDERED AS ONE TEMPORARY APPOINTMENT FOR THE PURPOSE OF TRANSFERRING ACCRUED LEAVE CREDIT FROM ONE PERIOD OF THE TEMPORARY APPOINTMENT TO ANOTHER. 1940: I HAVE YOUR LETTER OF DECEMBER 9. AS FOLLOWS: THE COMMISSION'S ATTENTION WAS RECENTLY CALLED TO UNPUBLISHED DECISION B- 10157. IN THIS DECISION IT WAS HELD THAT AN EMPLOYEE WHO RECEIVED A TEMPORARY APPOINTMENT FOR NOT TO EXCEED 3 MONTHS.

B-13910, DECEMBER 21, 1940, 20 COMP. GEN. 332

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - TEMPORARY EMPLOYEES EMPLOYEES ORIGINALLY APPOINTED FOR DEFINITE PERIODS NOT EXCEEDING 6 MONTHS WHOSE APPOINTMENTS ARE EXTENDED AT THE END OF 6 MONTHS, OR WHO ARE GIVEN NEW TEMPORARY APPOINTMENTS AT SUCH TIME, ARE TO BE REGARDED AS TEMPORARY EMPLOYEES FOR LEAVE PURPOSES REGARDLESS OF THE AGGREGATE LENGTH OF SERVICE, AND SUCH A SERIES OF APPOINTMENTS OR EXTENSIONS IS TO BE CONSIDERED AS ONE TEMPORARY APPOINTMENT FOR THE PURPOSE OF TRANSFERRING ACCRUED LEAVE CREDIT FROM ONE PERIOD OF THE TEMPORARY APPOINTMENT TO ANOTHER.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, DECEMBER 21, 1940:

I HAVE YOUR LETTER OF DECEMBER 9, 1940, AS FOLLOWS:

THE COMMISSION'S ATTENTION WAS RECENTLY CALLED TO UNPUBLISHED DECISION B- 10157, DATED MAY 21, 1940, ADDRESSED TO THE FEDERAL SECURITY ADMINISTRATOR, FEDERAL SECURITY AGENCY. IN THIS DECISION IT WAS HELD THAT AN EMPLOYEE WHO RECEIVED A TEMPORARY APPOINTMENT FOR NOT TO EXCEED 3 MONTHS, WHICH WAS SUBSEQUENTLY EXTENDED THREE TIMES FOR NOT TO EXCEED 3 MONTHS IN EACH CASE, MAY BE REGARDED AS A PERMANENT EMPLOYEE FOR LEAVE PURPOSES. IT WAS STATED THAT DECISION OF JANUARY 17, 1939, 18 COMP. GEN. 596,"DOES NOT REQUIRE THAT THE ENTIRE PERIOD OF 12 MONTHS INVOLVED IN THE INSTANT CASE BE CONSIDERED AS CONSISTING OF TWO TEMPORARY APPOINTMENTS OF 6 MONTHS EACH--- THE EMPLOYEE HAVING BEEN RETAINED IN THE SERVICE BY MEANS OF EXTENSIONS OF THE ORIGINAL APPOINTMENT RATHER THAN A NEW TEMPORARY APPOINTMENT. * * * WHILE THE ORIGINAL APPOINTMENT OF 3 MONTHS AND THE FIRST EXTENSION OF 3 MONTHS EACH CONSTITUTED A TEMPORARY APPOINTMENT--- NOT EXCEEDING 6 MONTHS--- WHEN THE APPOINTMENT WAS CONTINUED THEREAFTER (WITHOUT ANY BREAK IN THE SERVICE OR NEW APPOINTMENT) IT BECAME A PERMANENT APPOINTMENT WITHIN THE PURVIEW OF SECTION I (B) OF THE ANNUAL LEAVE REGULATIONS * * *.'

IN DECISION B-12925, OCTOBER 29, 1940, ADDRESSED TO THE SECRETARY OF WAR, HOWEVER, IT WAS HELD THAT A TEMPORARY EMPLOYEE ENGAGED ON CONSTRUCTION WORK AT AN HOURLY RATE WHO RECEIVED A SERIES OF EXTENSIONS OF HIS TEMPORARY APPOINTMENT SO THAT HE SERVED AN AGGREGATE OF 8 MONTHS WAS A TEMPORARY EMPLOYEE ENGAGED ON CONSTRUCTION WORK AT AN HOURLY RATE OF COMPENSATION WITHIN THE MEANING OF THE LEAVE STATUTES AND REGULATIONS AND, THEREFORE, EXPRESSLY EXCLUDED FROM THE BENEFITS OF ANNUAL AND SICK LEAVE. THIS DECISION READS IN PART AS FOLLOWS:

"* * * THE DECISION OF MAY 13, 1939, 18 COMP. GEN. 853, 854, HELD AS FOLLOWS:

"* * * A SERIES OF ADMINISTRATIVE APPOINTMENTS EACH FOR A DEFINITE PERIOD NOT EXCEEDING 6 MONTHS (BUT THE SERIES OF APPOINTMENTS AGGREGATING MORE THAN 6 MONTHS) DOES NOT CHANGE THE STATUS OF THE EMPLOYEE FROM TEMPORARY TO PERMANENT OR EMERGENCY FOR LEAVE PURPOSES, AND ANNUAL AND SICK LEAVE IN SUCH A SITUATION MAY NOT BE ADVANCED. * * *"

"NEITHER WOULD THE STATUS OF THE EMPLOYEE BE CHANGED FROM TEMPORARY TO INDEFINITE, AS CONTENDED IN THE CORRESPONDENCE FORWARDED WITH YOUR LETTER. IN OTHER WORDS, WHILE A SERIES OF TEMPORARY APPOINTMENTS FOR DEFINITE PERIODS OF LESS THAN 6 MONTHS MAY BE REGARDED AS ONE TEMPORARY APPOINTMENT FOR THE PURPOSE OF TRANSFERRING THE LEAVE CREDIT OF A TEMPORARY EMPLOYEE FROM ONE PERIOD OF THE TEMPORARY APPOINTMENT TO ANOTHER, THE STATUS OF THE EMPLOYEE IS NOT CHANGED FROM TEMPORARY TO PERMANENT OR INDEFINITE AS A RESULT OF THE FACT THAT THE AGGREGATE PERIOD OF SERVICE UNDER THE SERIES OF SUCH TEMPORARY APPOINTMENTS EXCEEDED 6 MONTHS. NOTWITHSTANDING THE NUMBER OF SUCCESSIVE TEMPORARY APPOINTMENTS THE FACT REMAINS THAT THE EMPLOYEE WAS APPOINTED FOR "DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS' WITHIN THE MEANING OF THE DEFINITION OF A TEMPORARY EMPLOYEE, AS PRESCRIBED IN THE REGULATIONS.' ( ITALICS SUPPLIED.)

SINCE THE TWO DECISIONS REFERRED TO ABOVE APPEAR TO BE IN CONFLICT, THE COMMISSION DESIRES TO BE ADVISED CONCERNING THE LEAVE WHICH MAY PROPERLY BE GRANTED TO TEMPORARY EMPLOYEES ON ITS FORCE. A NUMBER OF THE COMMISSION'S TEMPORARY EMPLOYEES HAVE BEEN EMPLOYED FOR PERIODS LONGER THAN 6 MONTHS, IN SOME CASES AS LONG AS 2 YEARS. THESE EMPLOYEES WERE GIVEN ORIGINAL APPOINTMENTS FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS AND HAVE BEEN CONTINUED IN THE SERVICE BY MEANS OF EXTENSIONS OF THEIR ORIGINAL APPOINTMENTS, EACH EXTENSION HAVING BEEN SIMILARLY LIMITED TO DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS. THE COMMISSION HAS HERETOFORE TAKEN THE VIEW THAT REGARDLESS OF THE ACTUAL LENGTH THEY WERE ORIGINALLY APPOINTED FOR DEFINITE PERIODS OF 6 MONTHS OR LESS, AND AS SUCH ENTITLED TO 2 1/2 DAYS ANNUAL LEAVE FOR EACH MONTH OF SERVICE. IF THE DECISION ADDRESSED TO THE FEDERAL SECURITY ADMINISTRATOR (B-10157, MAY 21, 1940) MUST BE FOLLOWED, IT WILL BE NECESSARY FOR THIS COMMISSION TO CONSIDER ITS TEMPORARY EMPLOYEES WHO HAVE ACTUALLY SERVED LONGER THAN 6 MONTHS AS PERMANENT FOR LEAVE PURPOSES, AND AS SUCH ENTITLED TO 2 1/6 DAYS ANNUAL LEAVE A MONTH, INSTEAD OF 2 1/2 DAYS A MONTH. YOUR DECISION IS RESPECTFULLY REQUESTED ON THE FOLLOWING QUESTIONS:

1. ARE EMPLOYEES ORIGINALLY APPOINTED FOR DEFINITE PERIODS NOT EXCEEDING 6 MONTHS, WHOSE APPOINTMENTS ARE EXTENDED AT THE EXPIRATION OF 6 MONTHS TO BE CONSIDERED AS TEMPORARY OR PERMANENT FOR LEAVE PURPOSES, REGARDLESS OF THE AGGREGATE LENGTH OF SERVICE?

2. ARE EMPLOYEES ORIGINALLY APPOINTED FOR DEFINITE PERIODS NOT EXCEEDING 6 MONTHS WHO ARE REAPPOINTED OR GIVEN NEW TEMPORARY APPOINTMENTS AT THE EXPIRATION OF 6 MONTHS TO BE CONSIDERED AS TEMPORARY OR PERMANENT FOR LEAVE PURPOSES, REGARDLESS OF THE AGGREGATE LENGTH OF SERVICE?

3. IF SUCH EMPLOYEES ARE TEMPORARY FOR LEAVE PURPOSES, MAY THE SERIES OF APPOINTMENTS OR EXTENSIONS BE CONSIDERED AS ONE TEMPORARY APPOINTMENT FOR THE PURPOSE OF TRANSFERRING CREDIT FOR ACCRUED LEAVE FROM ONE PERIOD OF THE TEMPORARY APPOINTMENT TO ANOTHER, REGARDLESS OF THE AGGREGATE LENGTH OF SERVICE?

4. IF SUCH TEMPORARY EMPLOYEES WHO HAVE SERVED LONGER THAN 6 MONTHS ARE TO BE CONSIDERED AS PERMANENT FOR LEAVE PURPOSES ARE THEY ENTITLED TO:

(A) 2 1/2 DAYS A MONTH FOR THE FIRST 6 MONTHS OF SERVICE AND 2 1/6 DAYS A MONTH FOR EACH MONTH THEREAFTER?

(B) 2 1/6 DAYS A MONTH FOR THE ENTIRE PERIOD OF SERVICE?

5. IF SUCH EMPLOYEES ARE TO BE CONSIDERED AS PERMANENT FOR LEAVE PURPOSES AND ENTITLED TO 2 1/6 DAYS LEAVE PER MONTH INSTEAD OF 2 1/2 DAYS A MONTH, WILL IT BE NECESSARY FOR THE COMMISSION TO ADJUST THE LEAVE OF SUCH EMPLOYEES HERETOFORE CONSIDERED AS TEMPORARY FOR LEAVE PURPOSES?

6. IF THE ANSWER TO QUESTION 5, IS IN THE AFFIRMATIVE AND ANNUAL LEAVE OF SUCH EMPLOYEES IS TO BE ADJUSTED, AS OF WHAT DATE MUST THE ADJUSTMENT BE MADE?

7. IF THE ANSWER TO QUESTION 5 IS IN THE AFFIRMATIVE WHAT ACTION MUST BE TAKEN IN THE CASE OF EMPLOYEES WHO HAVE SERVED LONGER THAN 6 MONTHS AND WHO HAVE ALREADY BEEN GRANTED ACCRUED LEAVE ON THE BASIS OF 2 1/2 DAYS A MONTH?

(A) MAY THE ADJUSTMENT BE MADE BY REDUCING ACCRUED LEAVE AND BY CHARGING AS ADVANCED LEAVE WHERE THE EMPLOYEE HAS NO ACCRUED LEAVE?

(B) MUST REFUND BE MADE FOR EXCESS LEAVE TAKEN IN PRIOR CALENDAR YEARS?

IN THE DECISION FIRST REFERRED TO IN YOUR LETTER (B-10157) THE EMPLOYEE INVOLVED RECEIVED A TEMPORARY APPOINTMENT FOR 3 MONTHS UNDER SECTION 4, RULE VIII, OF THE CIVIL-SERVICE REGULATIONS, AND THEREAFTER RECEIVED THREE EXTENSIONS UNDER THAT APPOINTMENT OF NOT TO EXCEED 3 MONTHS EACH. SECTION 4 OF RULE VIII PROVIDES THAT UNDER CERTAIN CIRCUMSTANCES "A TEMPORARY APPOINTMENT MAY BE MADE WITH THE PRIOR CONSENT OF THE COMMISSION FOR PERIOD NOT TO EXCEED 3 MONTHS, AND MAY WITH LIKE CONSENT OF THE COMMISSION BE EXTENDED FOR A FURTHER PERIOD OF 3 MONTHS.' IT IS FURTHER PROVIDED BY SAID RULE THAT "IN NO CASE SHALL SUCH TEMPORARY APPOINTMENT EXTEND BEYOND 6 MONTHS FOR ANY PURPOSE OTHER THAN TO COMPLETE THE JOB OF WORK FOR WAS ONLY ONE APPOINTMENT OF 3 MONTHS' DURATION, AND THAT THE FINAL 9 MONTHS OF SERVICE WERE RENDERED UNDER EXTENSIONS OF THAT SAME APPOINTMENT. IT WAS DECIDED, IN EFFECT, THAT WHERE AN EMPLOYEE BEGINS HIS PERIOD OF SERVICE UNDER A 3-MONTHS' APPOINTMENT AND THAT APPOINTMENT IS EXTENDED SO THAT THE ACTUAL PERIOD OF SERVICE THEREUNDER EXCEEDS 6 MONTHS, THEN HE MUST BE REGARDED AS A "PERMANENT EMPLOYEE" BECAUSE THIS LATTER TERM AS DEFINED IN SECTION 1 (B) OF THE ANNUAL LEAVE REGULATIONS, INCLUDES EMPLOYEES APPOINTED "FOR DEFINITE PERIODS IN EXCESS OF 6 MONTHS.' ( ITALICS SUPPLIED.) IN OTHER WORDS, IT WAS CONCLUDED THAT EVEN THOUGH A PERSON BEGINS A SERVICE UNDER WHAT IS INTENDED AS A "TEMPORARY APPOINTMENT," IF THAT APPOINTMENT IN FACT, THROUGH A SERIES OF EXTENSIONS OR OTHERWISE, TURNS OUT TO BE A "PERMANENT APPOINTMENT" IT MUST BE SO LABELED AND THE RULES APPLICABLE THERETO APPLIED. THAT DECISION WAS NOT PUBLISHED AND WAS RENDERED WITH RESPECT TO THE PARTICULAR FACTS AND SITUATION THERE INVOLVED, THE PRIMARY QUESTION BEING AS TO WHETHER THE LEAVE EARNED BUT NOT TAKEN DURING THE FIRST 6 MONTHS WAS FORFEITED.

IN B-12925 OF OCTOBER 29, 1940 (20 COMP. GEN. 223), FURTHER CONSIDERATION APPEARS TO HAVE BEEN GIVEN TO THIS GENERAL SUBJECT MATTER AND IT WAS THEREIN CONCLUDED THAT THERE IS NO MATERIAL DISTINCTION BETWEEN AN EXTENSION OF AN INITIAL TEMPORARY APPOINTMENT AND A NEW TEMPORARY APPOINTMENT--- IN EITHER CASE THERE BEING IN EFFECT A REAPPOINTMENT BECAUSE A PERIOD OF TEMPORARY EMPLOYMENT ENDS AND A FURTHER PERIOD OF TEMPORARY SERVICE BEGINS. ACCORDINGLY, IT WAS DETERMINED THAT THE HOLDING AS SET FORTH IN B-10157, SHOULD NOT BE GIVEN GENERAL APPLICATION AND THAT THE RULE SHOULD BE THAT "THE STATUS OF THE EMPLOYEE IS NOT CHANGED FROM TEMPORARY TO PERMANENT OR INDEFINITE AS A RESULT OF THE FACT THAT THE AGGREGATE PERIOD OF SERVICE UNDER THE SERIES OF SUCH TEMPORARY APPOINTMENTS (OR EXTENSIONS) EXCEEDED 6 MONTHS"--- QUOTING FROM DECISION B -12925 DATED OCTOBER 29, 1940, 20 COMP. GEN. 223. YOU ARE ADVISED, THEREFORE, THAT THE RULE AS STATED IN THIS LATTER DECISION, B-12925, SHOULD BE FOLLOWED. 18 COMP. GEN. 596; ID. 853.

EMPLOYEES OF THE CLASS COVERED BY YOUR QUESTIONS ONE AND TWO ARE TO BE REGARDED AS TEMPORARY FOR LEAVE PURPOSES REGARDLESS OF THE AGGREGATE LENGTH OF SERVICE, PROVIDED, OF COURSE, THAT THE SERVICE IS CONTINUOUS.

QUESTION THREE IS ANSWERED IN THE AFFIRMATIVE.

THE ABOVE ANSWERS TO THE FIRST THREE QUESTIONS MAKE IT UNNECESSARY TO ANSWER THE REMAINING QUESTIONS STATED IN YOUR LETTER.