B-52231, SEPTEMBER 17, 1945, 25 COMP. GEN. 273

B-52231, SEPTEMBER 17, 1945, 25 COMP. GEN. 273

OFFICERS AND EMPLOYEES - SEPARATION FROM SERVICE - EFFECTIVE DATE IN ORDER THAT THE FULL ANNUAL LEAVE CREDIT FOR SEPTEMBER 1945, AND THE QUARTERLY LEAVE CREDIT OF ONE-HALF DAY DUE AS OF SEPTEMBER 30, PURSUANT TO SECTION 2.1 (A) OF THE ANNUAL LEAVE REGULATIONS, MAY BE GIVEN FOR THE PURPOSE OF COMPUTING THE LUMP-SUM LEAVE PAYMENT UNDER THE ACT OF DECEMBER 21, 1944, OF EMPLOYEES WHOSE LAST DAY OF ACTIVE DUTY WILL BE FRIDAY, SEPTEMBER 28--- THE LAST DAY OF THEIR 40-HOUR WORKWEEK- - ADMINISTRATIVE ACTION MAY BE TAKEN TO SEPARATE SUCH EMPLOYEES EFFECTIVE SEPTEMBER 30, 1945, THEREBY INCLUDING TWO NONWORK DAYS.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, WAR PRODUCTION BOARD, SEPTEMBER 17, 1945:

I HAVE YOUR LETTER OF SEPTEMBER 6, 1945, AS FOLLOWS:

THIS OFFICE HAS NOTIFIED A NUMBER OF EMPLOYEES THAT THEIR SERVICES WILL TERMINATE AS OF SEPTEMBER 28, 1945. SINCE THE ADMINISTRATIVE WORK-WEEK HAS BEEN PRESCRIBED AS FORTY HOURS, MONDAY THROUGH FRIDAY, EFFECTIVE AUGUST 26, 1945, THEIR LAST DAY OF ACTIVE DUTY WILL BE FRIDAY, SEPTEMBER 28, 1945. CONSEQUENTLY, THERE IS DOUBT AS TO THE DATE THESE EMPLOYEES MAY BE SEPARATED.

IT WAS HELD IN 24 COMP. GEN. 511 THAT THE ACT OF DECEMBER 21, 1944 (58 STAT. 845) WAS PREDICATED UPON THE DEFINITE REPRESENTATION THAT EMPLOYEES WOULD BE SEPARATED FROM THE SERVICE EFFECTIVE UPON COMPLETION OF THE LAST DAY OF ACTIVE DUTY. A STRICT INTERPRETATION WOULD REQUIRE TERMINATION OF THE EMPLOYEES AS OF THE CLOSE OF BUSINESS SEPTEMBER 28, 1945, THE 29TH AND 30TH BEING NON-WORK DAYS, THEREBY PRECLUDING THE ACCRUAL OF LEAVE THROUGH SEPTEMBER 39, 1945.

THE ABOVE RULING WAS RENDERED PRIOR TO PASSAGE OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AT A TIME WHEN EMPLOYEES RECEIVED COMPENSATION FOR EVERY DAY OF THE YEAR, AND INDICATED THAT THE INTENT WAS TO PREVENT THE GRANTING OF ANNUAL OR VACATION LEAVE IMMEDIATELY PRIOR TO SEPARATION FROM THE SERVICE.

THERE APPEARS NO INTENTION TO PROHIBIT EMPLOYEES FROM REMAINING IN A PAY STATUS AFTER THE LAST DAY OF ACTIVE DUTY, WHEN SUCH EMPLOYEES WILL NOT BE IN A LEAVE STATUS BETWEEN THE LAST DAY OF ACTIVE DUTY AND THE DATE OF SEPARATION.

THIS LATTER VIEWPOINT IS SUPPORTED BY YOUR DECISION B-51571, DATED AUGUST 22, 1945, WHEREIN IT WAS STATED THAT ALTHOUGH THE RULES FOR EARNING AND CREDITING OF LEAVE HAVE NOT BEEN MODIFIED, THEY MUST REFLECT THE PURPOSE AND INTENT OF THE LEAVE LAWS AND REGULATIONS. THESE WOULD APPEAR TO REQUIRE THE CREDITING OF LEAVE FOR A FULL MONTH'S WORK TO PERMANENT EMPLOYEES WHO ARE ON THE ROLL, AND WORK (OR ARE OTHERWISE IN A PAY STATUS) FOR ALL OF THEIR BASIC WORK-WEEKS DURING SAID MONTH. OTHERWISE, THE FULL MONTH'S LEAVE CREDIT WOULD BE EARNED, IN THE SUBJECT CASE, ONLY BY THOSE REQUIRED TO WORK OVERTIME ON SEPTEMBER 29-30, 1945.

YOUR DECISION IS REQUESTED AS TO WHETHER THERE WOULD BE ANY LEGAL OBJECTION TO ADMINISTRATIVE ACTION SHOWING SEPTEMBER 30, 1945 AS THE SEPARATION DATE OF THE EMPLOYEES INVOLVED, WHOSE LAST DAY OF WORK IS SEPTEMBER 28.

IN DECISION OF AUGUST 22, 1945, B-51571, 25 COMP. GEN. 212, TO THE SECRETARY OF THE TREASURY, TO WHICH YOU REFER, IT WAS STATED (QUOTING ANSWER TO QUESTION 7, AND QUESTION AND ANSWER 8):

OF COURSE, THE LEAVE LAWS WERE ENACTED, AND THE LEAVE REGULATIONS PROMULGATED, IN THE LIGHT OF THE SALARY LAWS IN EFFECT PRIOR TO JULY 1, 1945. HOWEVER, THE NEW PAY STATUTE DOES NOT AMEND ANY PROVISIONS OF THE LEAVE LAWS OR REGULATIONS. CONSEQUENTLY, UNLESS AND UNTIL THE LEAVE LAWS OR REGULATIONS SHALL HAVE BEEN MODIFIED TO CORRESPOND TO THE FORMULAS FOR COMPUTING BASIC AND OVERTIME COMPENSATION PRESCRIBED BY THE NEW PAY STATUTE, IT IS NECESSARY TO STATE RULES FOR THE EARNING AND CREDITING OF LEAVE WHICH STILL MUST REFLECT THE PURPOSE AND INTENT OF THE LEAVE LAWS AND REGULATIONS. * * *

"8. PERMANENT EMPLOYEES ARE CREDITED WITH ANNUAL LEAVE UNDER THE FOLLOWING FORMULA:

PERIODS OF SERVICE: CREDIT (HOURS)

LESS THAN 7 DAYS ------------------------------------ 10

7 THROUGH 14 DAYS ----------------------------------- 4

15 THROUGH 21 DAYS ----------------------------------- 8

22 THROUGH 29 DAYS ----------------------------------- 12

30 DAYS ---------------------------------------------- 16 "DOES ESTABLISHMENT OF THE BASIC 40 HOUR WORKWEEK AFFECT THIS FORMULA, AND, IF SO, IN WHAT MANNER?

PERMANENT EMPLOYEES EARN LEAVE UPON THE BASIS OF THE CALENDAR MONTH. WHAT WAS STATED IN ANSWERING QUESTION 7, SUPRA, IS FOR CONSIDERATION IN ANSWERING THIS QUESTION, ALSO. IN OTHER WORDS, PERMANENT EMPLOYEES MUST BE ON THE ROLL FOR THE NUMBER OF DAYS STATED IN THE SCHEDULE QUOTED IN YOUR LETTER, AND WORK (OR OTHERWISE BE IN A PAY STATUS) ALL OF THEIR BASIC WORKWEEKS DURING SUCH PERIOD TO EARN THE NUMBER OF HOURS CREDIT LISTED, SUBJECT TO REDUCTION IN LEAVE CREDIT REQUIRED BY THE PROVISIONS OF SECTION 4.3 OF THE LEAVE REGULATIONS FOR PERIODS IN A NONPAY STATUS. * * *

IN LINE WITH THAT DECISION, THIS OFFICE IS NOT REQUIRED TO OBJECT TO ADMINISTRATIVE ACTION SEPARATING THE EMPLOYEES TO WHOM YOU REFER IN THE FIRST PARAGRAPH OF YOUR LETTER EFFECTIVE SEPTEMBER 30, 1945, THEREBY INCLUDING TWO NONWORK DAYS, IN ORDER THAT SAID EMPLOYEES MAY BE GIVEN THE FULL LEAVE CREDIT FOR THE MONTH OF SEPTEMBER, AS WELL AS THE QUARTERLY LEAVE CREDIT OF ONE-HALF DAY DUE AS OF SEPTEMBER 30, 1945, PURSUANT TO SECTION 2.1 (A) OF THE CURRENT LEAVE REGULATIONS.