B-61121, OCTOBER 14, 1946, 26 COMP. GEN. 258

B-61121, OCTOBER 14, 1946, 26 COMP. GEN. 258

LEAVES OF ABSENCE - ANNUAL - BIWEEKLY CREDIT - SEPARATION PRIOR TO END OF BIWEEKLY PAY PERIOD EMPLOYEES OF STATE AND LOCAL OFFICES OF THE UNITED STATES EMPLOYMENT SERVICE WHO, IN ACCORDANCE WITH THE ACT OF JULY 26, 1946, WILL HAVE THEIR FEDERAL SERVICE TERMINATED AT THE CLOSE OF BUSINESS FRIDAY, NOVEMBER 15, 1946, ONE DAY PRIOR TO THE END OF THEIR BIWEEKLY PAY PERIOD--- SATURDAY BEING A NONWORKDAY--- WILL BE ENTITLED TO THE BIWEEKLY ANNUAL LEAVE CREDIT OF ONE FOR THAT PAY PERIOD PURSUANT TO SECTION 2.1 OF THE ANNUAL LEAVE REGULATIONS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF LABOR, OCTOBER 14, 1946:

I HAVE YOUR LETTER OF OCTOBER 8, 1946, AS FOLLOWS:

IN ACCORDANCE WITH THE PROVISIONS OF PUBLIC LAW 549, 79TH CONGRESS, APPROVED JULY 26, 1946, STATE AND LOCAL OFFICE PERSONNEL OF THE UNITED STATES EMPLOYMENT SERVICE WILL RETURN TO THE EMPLOYMENT OF THE SEVERAL STATES FROM THE FEDERAL SERVICE, NOVEMBER 16, 1946. THEIR LAST DAY OF WORK IN THE FEDERAL SERVICE WILL BE FRIDAY, NOVEMBER 15, 1946.

IN THIS CONNECTION THERE ARISES THE QUESTION OF THE PROPER AMOUNT OF LEAVE TO BE CREDITED TO THOSE EMPLOYEES FOR THE PERIOD NOVEMBER 3 THROUGH NOVEMBER 15, 1946. SHOULD THESE EMPLOYEES REMAIN IN THE FEDERAL SERVICE, THEIR PAY PERIOD WOULD RUN FROM SUNDAY, NOVEMBER 3 THROUGH SATURDAY, NOVEMBER 16, 1946 SINCE THE PAY PERIOD COVERS TWO ADMINISTRATIVE WORK WEEKS UNDER THE TERMS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED.

SECTION 2.1 OF THE REGULATIONS RELATING TO ANNUAL AND SICK LEAVE OF GOVERNMENT EMPLOYEES, EFFECTIVE JULY 1, 1946, CHANGED THE BASIS FOR CREDITING ANNUAL LEAVE FROM THE CALENDAR MONTH TO THE "BI-WEEKLY PAY PERIOD" AND READS AS FOLLOWS:

"ANNUAL LEAVE SHALL BE CREDITED TO EMPLOYEES AS FOLLOWS: (A) PERMANENT EMPLOYEES SHALL BE CREDITED WITH LEAVE AT THE RATE OF 1 DAY PER BI-WEEKLY PAY PERIOD; OR THE TOTAL CREDIT FOR ANY CALENDAR YEAR MAY BE GIVEN AT THE BEGINNING OF THE CALENDAR YEAR IN WHICH IT ACCRUES.'

FROM THE USE OF THE PHRASE,"BI-WEEKLY PAY PERIOD" RATHER THAN "BI WEEKLY PERIOD" IT APPEARS THAT IT WAS INTENDED BY THE CIVIL SERVICE COMMISSION THAT THE GRANTING OF ANNUAL LEAVE BE DEPENDENT UPON THE EMPLOYEES WORKING OR OTHERWISE BEING IN A PAY STATUS DURING THE TWO BASIC WORK WEEKS WHICH FALL WITHIN THE BI-WEEKLY PERIOD. THAT VIEW IS SUPPORTED BY YOUR DECISION IN 25 COMP. GEN. 212, IN THE REPLY TO QUESTION 7 ON PAGE 218 WHERE IT WAS STATED THAT:

"* * * IT IS NOT REASONABLE TO REQUIRE THAT AN EMPLOYEE WORK OVERTIME DURING HIS SERVICE MONTH IN ORDER TO EARN LEAVE.'

IT IS UNDERSTOOD THAT QUESTION 7 RELATED TO A TEMPORARY EMPLOYEE; HOWEVER, IT IS FELT THAT THE SAME STATEMENT HOLDS TRUE FOR PERMANENT EMPLOYEES IN THE LIGHT OF THE THESIS THAT THE BASIS FOR THE GRANTING OF ANNUAL LEAVE IS NOW CHANGED.

I AM ALSO COGNIZANT THAT IN THE SAME DECISION IT WAS HELD, QUOTING FROM THE SYLLABUS:

"FOR PURPOSES OF CREDITING PERMANENT EMPLOYEES WITH ANNUAL LEAVE * * * THE EMPLOYEES MUST BE ON THE ROLL FOR THE PRESCRIBED NUMBER OF DAYS, AND, DURING SUCH PERIOD, WORK OR OTHERWISE BE IN A PAY STATUS ALL OF THEIR BASIC WORK WEEKS PRESCRIBED PURSUANT TO THE FEDERAL EMPLOYEES PAY ACT OF 1945, * * *.'

IN YOUR DECISION IN 25 COMP. GEN. 273, HOWEVER, IT WAS HELD THAT ADMINISTRATIVE ACTION MIGHT BE TAKEN TO SEPARATE EMPLOYEES EFFECTIVE AT A DATE LATER THAN THE CLOSE OF BUSINESS OF THE LAST WORK DAY, THEREBY INCLUDING NON-WORK DAYS, SO THAT CERTAIN BENEFITS IN REGARD TO THE ACCRUAL OF LEAVE MIGHT BE OBTAINED BY THE EMPLOYEES CONCERNED.

PUBLIC LAW 549, HOWEVER, REFERRED TO IN THE FIRST PARAGRAPH, REQUIRES THE SEPARATION OF STATE AND LOCAL OFFICE PERSONNEL OF THE UNITED STATES EMPLOYMENT SERVICE FROM THE FEDERAL SERVICE AT THE CLOSE OF BUSINESS NOVEMBER 15, ONE DAY PRIOR TO THE END OF THE PAY PERIOD.

IN VIEW OF THE ABOVE, MAY EMPLOYEES SEPARATED FROM THE SERVICE AT THE CLOSE OF BUSINESS ON THE SECOND FRIDAY OF A BIWEEKLY PAY PERIOD RUNNING FROM SUNDAY UNTIL THE CLOSE OF BUSINESS OF THE SECOND SATURDAY THEREAFTER, WHO HAVE COMPLETED DUTY OR OTHERWISE BEEN IN A PAY STATUS FOR THE TWO BASIC WORK WEEKS FALLING WITHIN THE BIWEEKLY PAY PERIOD, BE CREDITED WITH ONE DAY OF ANNUAL LEAVE FOR THAT PAY PERIOD?

IF YOUR ANSWER TO THIS QUESTION IS NEGATIVE, HOW MUCH LEAVE SHOULD BE DEDUCTED FROM THE ACCOUNTS OF AN EMPLOYEE WHO WAS CREDITED WITH 26 DAYS ANNUAL LEAVE?

IN THE DECISION IN 25 COMP. GEN. 273, TO WHICH YOU REFER, IT WAS HELD, QUOTING FROM THE YLLABUS:

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.

THE ABOVE RULE WAS BASED UPON THE PROVISION IN THE ANNUAL AND SICK LEAVE REGULATIONS IN FORCE AT THAT TIME, WHICH DEFERRED THE CREDIT FOR ONE-HALF DAY, OR FOUR HOURS, ANNUAL LEAVE IN EACH QUARTER UNTIL SUCH EMPLOYEES HAD BEEN "CONTINUOUSLY EMPLOYED FOR THE ENTIRE QUARTER YEAR ENDING IN SUCH MONTHS.' THE PRESENT REGULATION, SECTION 2.1, QUOTED IN YOUR SUBMISSION DOES NOT SPECIFICALLY REQUIRE CONTINUOUS EMPLOYMENT FOR THE ENTIRE BIWEEKLY PERIOD BUT AUTHORIZES CREDIT AT THE RATE OF ONE DAY PER BIWEEKLY PAY PERIOD. ACCORDINGLY, THIS CREDIT OF ONE DAY MAY BE GIVEN AT THE BEGINNING OF THE PAY PERIOD; AND IF THE EMPLOYEE IS NOT ABSENT FROM DUTY FOR ANY DAY IN THAT PAY PERIOD WHICH OTHERWISE WOULD BE CHARGEABLE TO ANNUAL LEAVE, NO REDUCTION OF SUCH CREDIT WOULD BE REQUIRED IF THE EMPLOYEE WERE SEPARATED FROM THE SERVICE AFTER COMPLETING THE PRESCRIBED TOUR OF DUTY FOR SUCH BIWEEKLY PAY PERIOD. CF. 25 COMP. GEN. 212.

SPECIFICALLY ANSWERING THE QUESTION POSED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER, YOU ARE ADVISED THAT EMPLOYEES OF THE UNITED STATES EMPLOYMENT SERVICE WHOSE SERVICES ARE TERMINATED AT THE CLOSE OF BUSINESS NOVEMBER 15, 1946, THE LAST WORKDAY OF THE PRESCRIBED BIWEEKLY PAY PERIOD, BY TRANSFER TO STATE AGENCIES, WILL BE ENTITLED TO CREDIT FOR ONE DAY ANNUAL LEAVE FOR THAT PAY PERIOD, WHICH ANSWER RENDERS UNNECESSARY ANY ANSWER TO THE QUESTION PRESENTED IN THE CLOSING PARAGRAPH OF YOUR LETTER.