Untitled Texas Attorney General Opinion ( 1984 )

.
The Attorney’ General of Texas
JIM MAlTOX
Octsaber 3, 1984
Attorney General
Supreme Court Budding Mr. Ed Crisham opinion No. JM-io4
P. 0. BOX 12548 Chairman
Aus:,“. TX. 70711.254a Texas Employment Ccamission Re: Whether temporary and
51214752%
T.E.C. Building part-time employees of the
Telex 9101974.1367
Telecopier 512l475-0295
15th and Congress, Suite 624 Texas Employment Commission
Austin, Texas 78178 accrue vacation, sick leave
and holiday time
714 Jackson. Suite 700
Dallas. TX. 752024508
Dear Mr. Grisham:
2141742.8944
You have aslwd the folloving questions regarding “certain
4824 Amma Ave.. Suite 169 temporary and part-.t ime employees” of the Texas Employment Commission:
El Paso. TX. 79905’2793
915153334a4
1. Art! temporary or part-time employees of the
Texas EP?loyment Commission whose wages and
11 Texas. Suite 7M) salaries .are indirectly paid with federal monies
,iou,ton, TX. 77W2-3111 entitled to accrue vacation, sick leave, or
713/2236895 holiday c::.me credit as other state employees?
2. I:! so. are such employees who transfer
895 Broadway. Suite 312
Lubbock. TX. 794013479
employmarc from the Texas Fmployment Commission to
50617476235 another state agency entitled to transfer their
accumula,xd vacation and sick leave time credit?
are Texas Employment Commission
4309 N. Tenth. Suite 8
3. I:! so,
McAllen. TX. 79501-1685
5121882.4547 employee:3 who resign, are dismissed, or who are
separated, entitled to be paid for all vacation
time duly accrued at the time of separation from
200 Main Plaza. Suite 400
state en.ployment, provided the employee has had
San Antonio. TX. 70205-2797
51212254191
coutizuw~ 3 employment with the state for six
mouths?
An Equal OpportunityI 4. xc so. and if such employees, under
Afficmativa Action Employer establis’i cd administrative construction, were
denied pzly for work time lost due to illness,
should those employees be reimbursed for those
days thl!:p were sick and unable to work in an
amount nDt to exceed their duly accrued sick leave
at the tine they missed work due to illness?
5. If so. are such employees vho have become
separated from the Texas Employment Commission
p. 908
Hr. Ed Grisham - Page 2 LIHI-204)
entitled to be rrimbursed for days they did not
work that were official stat. holidaya?
6. If so, arIb such employace who have become
separated from the Texan Employment Comisaioa and
worked on officir.1, atatc holidays entitled to any
form of compensation for ruch labor?
7. If so, how far back in time should such
payments be made, and which statute of
limitations, if any, applies?
In order to facilitatcz our analysis of your questions, you point
out several factors regardl.ng the subject employees which ,you suggest
might be helpful in de!:rrmining the propri.ety of the current
administrative constructloo about the non-availability of certain
benefits to such employees. You note that “]t]here is no mutual
commitment for contlnuatior. of the employment relationship.” The job
descriptions for such emplo:rees limit them to working not “more than
1,200 hours in any calenda:: year.” Their “[c]ompensation is on an
hourly basis” and they arc “intended for temporary and intermittent
duty. . . .” You further ,+ivise that it has been the administrative
practice of the Texas Employment Commission [hereinafter TEC] to deny
to all such hourly, temporary and part-time employees all of the
specified benefits, i.e.. ,racation, sick, and holiday leave time.
Consequently, such emvye,:., were not allowed to take vacation with
pay nor. when such employees were separated from employment at the TEC
after six months continuous state employment, were they paid for l-
accrued vacation leave. Li.k.ewise. they were allowed neither time off .
with pay when they missed work due to illness nor any paid holidays.
Similarly, they were not gtren compensatory time off for time worked
on any holidays.
With regard to your .F:lrst question, it has been suggested, in
support of the existing administrative construction by your agency.
that the TEC’s “unique relationship” with the United States department
of Labor, from which it receives virtually all of its funding. somehow
exempts TEC’s hourly temporary and part-time employees from the
various state statutory provlsions concerning employee benufits.
However, in addition to rho fact that it has apparently never been
suggested that this theory applies to TEC’s monthly, non-temporary and
full-time employees, this office ruled unequivocally and without
exception almosr. forty years ago that “the Texas Employment Commission
is a state agency and its employees are State employees.” Attorney
CZneral Opinion V-427 (194;‘:. Twenty years later this conclusion was
reaffirmed in AttorneyGenc!ral Opinion X-125 (1967). which alao held.
citing Attorney General Opinion C-530 (1965). that “(i]nasmuch as
these federal funds [recei~red by TEC] are deposited in the State
Treasury, they are state funds.” indeed, the Secretary of Labor is
expressly prohibited from exercising any authority with respect to the
compeasation of employees DE state employment security agencies. 42
p. 909
L
Mr. Ed Crisham - PO@? 3 (J&204)
U.S.C. 1503(a)(l). Hence, in answer to your first question, it Is
clear beyond cavil that TEC’s hourly, temporary rnd part-time
employees ore entitled to receive vacation , sick, and holiday leave on
the same basis as other similarly situated state employees.
Because the next fiw of your remslning six questions are
predicated on the affirmative answer we hove given to your initial
question, we can now turn 1:c an examination of the relevent statutory
provisions which affect thl! availability to state employees generally
of the benefits at issue and to a determination of whether and to what
extent temporary and part-time employees are entitled to such
benefits. The state statukry provisions affecting the vide range of
rights, privileges, benefil:t:, and obligations of state employees are
multifnrjous and scattered. Not only do we have no n&d to catalogue
these statutes here, but, in addition, most of the applicable
statutory provisions regari,lng the benefits in question are contained
within the riders in artkle V. the general provisions article, of
the current General Approllriations Act. Acts 1983, 68th Leg.. ch.
1095. at 6171. Those riders provide in pertinent part as follows:
Sec. 1 PROVISIONS RELATING TO THE POSITION
CLASSIFICATIONPLAN.
. . . .
n. FART-TIME EMPLOYEES. Regular full-time
positions paid out: of funds appropriated may also
be filled by par?-time employees except for line
item exempt sala:?!.es not designated as part-time.
In computing the :;alaries of these employees, the
rates bf pay shz.ll be proportional to the rates
authorized for Fill-time classified employment.
It is further pr&ided that part-time employees as
described in this subsection shall be subject to
-all of the proviciions of this section.
o. HOURLYEMI’I.OYEES. It ic the intent of the
Legislature that hourly employees shall receive
per hour rate :.rcreases proportionate to those
provided in th,rr Act for full-time salaried
classified emplo$es
--a
. . . .
Sec. 2 METHOllOF SALARYPAYMENTS.
. . . .
f. OVERTIME. When a regular, full-tine
employee is required to work hours in excess of
the standard F’Crk week established for the
p. 910
Mr. Ed Grisham - Page 4 (JM-:!04)
position in accordance with applicable statutes,
the employee shall tse entitled to compensation for
such overtime eithgr::: (1) by receiving lqu~vslent
time off during the twelve-month period following
the dote on which the overtime was accrued; or (2)
et the discretion DE the employing institution or
agency, In cases vhere granting compensatory time
off is imprscticsble, by receiving pay at s rate
equivalent to one md one-half times the regular
rate of pay. . . .
Sec. 7 RMPLOYEIS
WORKING
HOURSANUHOLIDAYS.
. . . .
E. Holidays for state employees . . .
including hourly wage workers for each year
covered by this At? shall be those specified in
Article 4591, Vernon’s Civil Statutes, as amended.
For institutic~rs and agencies of higher
education, a regu:lar employee is defined as one
who is employed to vork at least 20 hours per week
for a period of at least four and one-half
months. . . . $ly regular employees of
institutions of hig,ler education shall be eligible
for paid holidays.
Each state agercy and institution and agencies
of higher education will . . . have on hand enough
personnel to car-r on the activities of each
Institution or agency so that the public business
ten be carried on. . . . Those employees who are
working during that holiday period vi11 be allowed
compensatory time 7ff at a later time. . . . The
following holidays; vi11 nor be included in this
section, for th’?:r are holidays that follow
traditional national celebrated holidays:
. . . .
Agencies vho have work schedules other
than .~ . . [the n’,rmal office hours of 8:00 a.m.
to 5:00 p.m.1 wi:t:. insure that employees vorkinn
these schedules observe the equivaledt number 0:
holidays each ye+ as employees working normal
office hours.
. . . .
p. 911
Mr. Ed Crisham - Psge 5 (.RI-204)
Sec. 8. EMPLOYEES VACATIONS ANTI LEAVES.
a. Other than faculty with appointments of less
than twelve montxs at institutions of higher
education, employees of the state shall, ,without
deduction in sela,xy be entitled to s vsution in
each fiscal yeaL. Such entitlement shell be
eerned in sccordaa:e with the folloving schedule:
. . * .
An employee ,rlll e*rn vac*tion entitlement
beginning on the first day of employment with the
state and termtnating on the last day of
duty. . . . Credit for one month’s accrual will
be given for each month or fraction of a month of
employment with :he state and will be posted to
each employee’s l.r!ave record on the first day of
employment with the state and on the first of each
succeeding month of employment thereafter.
Vacation with pay may not be granted until the
employee has had continuous employment with the
state for six (6) months, although credit will be
accrued during that period.
. . . .
A stste employee who resigns, is dismissed, or
separated from sl:i,te employment shall be entitled
to be paid for all vacation time duly accrued at
the time of sellaration from state employment,
provided the employee has had continuous
employment with the state for six (6) months.
. . . .
E. Employees, of the state shall, without
deduction in salary, be entitled to sick leave
subject to the fo~loving conditions:
An employee will earn sick leave entitlement
beginning on the first day of employmeut with the
state and terminating on the last day of duty.
Sick leave en~::ttlement shall be earned at the
rate of eight (8) hours for each month or fraction
of a month employment, and shall accumulate with
the unused amount of such leave carried forward
each month. . . .
. . . .
p. 912
Mr. Ed Crlsham - Page 6 (Jkk.204)
d. . . . .
For instituti 21s end ogencieo of higher
educstion, a regular employee is defined as one
who is smployed tc, work at least 20 hours per week
for s period of at least four and one-helf months,
excluding students employed in positions which
require student status 8s a condition for
employment. Or.l,y regular employees of
institutions and agencies of higher education
shall be eligible for paid vacation and leave as
provided herein.
. , . .
f. A state r!nlployee who transfers directly
from one State agency to another, shall be given
credit by the rweiving agency for the unused
balance of this accumulated vacation and sick
leave, provided that his employment with the State
is uninterrupted.
. . . .
I. The administrative head or heads of each
agency of the state shall require a record to be
kept of the vacot ton and sick leave accrual and
absences of each employee, and the reasons
therefor whether :i::om sickness. vacation, or leave
of absence withow: pay. Such records shall be
available for pub:t:tc inspection.
j. l’he State Anditor shall provide a uniform
interpretation of the provisions herein contained
on employee vacat:lons and leaves. and shall report
to the governor aid the Legislature any exceptions
practiced by the various entities of the state
government; . . . (Emphasis added).
Considered as a whole, :hese riders, especially the language
emphasized, not only do net evidence any intent to treat hourly,
temporary or part-time employees disparately, but rather they make it
abundantly clear that such employees are generally entitled to the
same sort of benefits proviitd for all other employees.
You have referred us ‘:o Attorney General Opinion H-684 (1975)
which held that “[tlemporary and part-time state employees accrue sick
leave, but part-time employees accrue such leave on a proportionate
basis.” See Acts 1983, supra. §§l.n., o. (All further section
numbers cited will be Acts 1983. sup, unless otherwise indicated.)
That opinion also reaffiwed the vitality of the conclusion of
p. 913
Mr. Ed Crlsham - Pags 7 (JIG204)
attorney General Opihion M-1014 (1971) which held that “hourly and
part-time employees are cnj::ltled to the ssme holidays, with PS!I, 88
those raceived by employeerl on s regular monthly baris.” See 17.~.
Likewise, n-1014 also found that the granting of vacation time on a
percentage ba6i6 for the time vork6d vss consirtenr with the
provisions of the general rFpropristlons act and further thst regular
full-time hourly employee6 ware entitled to the 6ame benefits a8 those
granted to regular full-tine monthly employees. We find no reason to
depart from the holdings of these two opinions. The general
applicability of all the holiday , vacation and sick leave provisions
of article V of the curwnt appropriations act to part-time and
hourly, temporary state tmployees is further confirmed by the
limitation of such benefits at “institutions and agencies of higher
education” to “regular” employees, vho are defined as ones working “at
least 20 hour6 per week for a period of at least four and one-half
months.” Sets. 7.c.. 8.d. Similarly. the exclusion of faculty with
less than twelve-month appointment6 from the vacation provisions of
section 8.a. compels the inference that, in general, other state
employees are entitled to the benefits of those provisions. Finally,
Lbe narrow exception give1 to the comptroller to determine “leave
policies” for his hourly warkers argues for the same conclusion.
Moreover, the holding of Attorney General Opinion M-1252 (1972)
that “payment for all duly accrued vacation time Is payment for
services rendered . . . [and] such payment constitutes salaries wlthln
the meaning of Article 681311” indicate6 that all the subject benefits
set out in the provision6 of sections 1. 2, 7, and 8 of article V of
the General Appropriations Act discussed above are referrable to
article 6813b. V.T.C.S., which provide6 that “all salaries of
all . . . State employees . . shall be . . . as may be provided for
by the Legislature in the biennial Appropriations Act. . . .” wherein
there is contained nothing limiting the definition of state employees
to full-tine or non-tem?,Xary , monthly employee6. This is in
contrast, for example, to .wticle 6252-8a. V.T.C.S., which provides
payment for accumulated vacztion and sick leave to estates of deceased
state employees only if thsz subject decedent was “employed on a basis
or in a position normally requiring not less than 900 hours per
year. . . .‘I Thus, since we conclude both that the TEC’s employees
are State employee6 and that State employees generally, part-time as
veil as full-time, temporarr as well as otherwise, and hourly as weli
ss monthly, are entitled to all the benefits of holiday, vacation. and
sick leave. we can now read:.ly answer your next five questions.
Section 8.f. of the current appropriations act provides a clear
affirmative answer to your second question. The sixth paragraph of
section 8.a. provides a comparable affirmative ansver to your third
question. See also V.T.C.S. arc. 6252-8b. 51. Similarly, section
8.c.. vhose substantially identical predecessor provision6 were
applied to temporary and part-time employees by Attorney General
Opinion H-684 (1975). r:quires that such employees be provided
appropriate sick leave benefits. With regard to your fifth question,
p. 914
Mr. Ed Crislism - Page 8 (JE-204)
all hourly, temporary and part-time employ6es are entitled under
section 7.~. and the holding of Attorney General Opinion M-1014 to~the
sama paid holiday6 as all o.:her CmployCCS. Likewise, in answer to your
sixth question. under the t:hird paragraph of section 7.~c., hourly,
troporary and part-time 6ta’:I! employees. like all others, sre entitled
to compensatory time off for time worked on holidnys other than the
“traditioual national celebrated holidays” listed in section 7.~. In
tha case of employees who ‘a.ive already left their employment at TEC,
compensatory time off is obviously not available. See Attorney
General Opinion H-883 (1976). However, we beiieve that the equitable
treatment by H-883 of the then existing limitation of compensatory
ti~me off to the same moat1 (pay period) in which it was accrued
suggest6 a solution. Hence!, at least for the limited purpose of the
present opinion request, we read section 2.f as being in pari msteria
with section 7.~. Therefore, ve conclude that, having denied earned
holiday compensatory time to any of the employees in question, TEC
effectively exercised its discretion to choose to pray them at one and
a half times their existing rate. In summation, we agree with both
the Comptroller and the Sc,a:e Auditor, who have respectively advised
this office in response I:CI this opinion request that “[a] person
placed on an agency’s payroll is s state employee and, therefore,
entitled to all the benefits accruing thereto,” and that “[nlone of
the exceptions in the Appropriations Act apply to Com!lisslon
employees.” But before turning to your seventh question, we note that
this opi.nion request was spurred by the recent fiscal 1983 audit of
the financial activities cf the TEC by the State Auditor, at a
conference which took place on harch 29. 1984.
A.l. . . . .
b. Finding - None of the temporary employees
of the Commission are allowed to accrue sick or
annual leave. In our opinion this policy is in
conflict with thr: General Appropriations Act, art.
V. at 34 and Attorney General Opinions M-1014
dated December 9, 1971, and E-684 dated September
8. 1975, which indicate chat temporary and
part-time emplo),c:es are entitled to the same
benefits as full-time state employees with
part-time employees receiving a proportional
amount.
Recommendation! - Temporary employees should
accrue annual ani sick leave in proportion to
hours worked ant. should be required to meet the
minimum work period of six continuous months
before annual lorve can be taken. Balances due
current tempera:::’ employees should be awarded
retroactively.
p. 915
Mr. Ed Crisham - Page 9 (;>I-204)
ResPylse - The agency has requested an Attorney
Caneral s Opinion on Chi6 6ubject. TEC will
comply with wh6r AG rccommnds and we vi11 provide
a~ copy of thio opinion when received.
State Auditor Managsment Lo*:ter to Member6 of TEC. June 15. 1984, p.
5. In fact, you have adf:lsed that you have always complied with
section 8.f. and with the answer we have given to your second question
by calculating and transfe,:::ing accrued vacation and sick leave time
credit when employees of the type in question have moved directly to
another state agency. Compliance with our answers to questions three
through six as to current employees should in principle involve only
similarly straightforward calculations. However, questions three
through six are also directed at reimbursement of employees who have
been separated from TEC v,ithout being provided, at the time of
separation or prior theret’, , the benefit6 to which ve hold they were
entitled.
ThUS. we now turn to question seveu to consider what, if any,
limitations there are on )‘our obligation to reimburse such former
employees for previously I,endered services. See Attorney General
Opinion M-1252 (1972). To the extent that preexisting law in the form
of prior appropriation acts contained comparable benefit provisions,
separated former TEC emplayees vho were denied benefits to which we
have held they are entitled have claims against the state and against
specific appropriations to the TEC for such purposes. See Tex. Come.
art. III. 544, and Tex. Cor,rt. art. VIII, 16. However,section (a) of
article 4357, V.T.C.S., liaits the payment even of “certified and
audited” claims to those presented “to the Comptrollar for payment
within two (2) years from 1:he close of the fiscal year for which such
appropriations were made. . . .‘I Hence. payments to former TEC
employees mede out of recant appropriation6 to TEC for salaries and
benefits in order to reimbr.t,se such employees for benefits to vhich we
hold they were entitled in the past are limited to such benefits which
accrued within fiscal years 1983 and 1984, i.e.. September, 1982.
through August 31, 1984. l’he miscellaneous claims process, provided
for by article 4351b. W.T.C.S.. and the appropriation to the
Comptroller of. special funds for the payment of small claims, is
available to satisfy claim:, dating from anytime prior to September 1,
1982. Thus, there are no .:i.me limitations on the payment of claims
for the benefits in question for hourly, temporary and part-time
employee6 of TEC whom we have held were entitled to accrue such
benefits in the past, which claims are properly established under the
applicable procedure for suc:h payments.
SUMMARY
All hourly, temporary and part-time employees
of the TeXa6 Ihlployment Covaaission are state
employees and entitled to accrue vacation. sick
leave, and holiday time credit under the same
p. 916
Mr. Ed Crirham - Pag6 10 (JM-204)
condition6 es ot t,er similarly situated state
employees. Such enployees who transfer employment
from the Tl?C to another stats agency are entitled
to trsosf6r their sccumulatcd vacation and sick
leave time credit. Such l mploy6es are entitled at
th6 time of separation to be paid for all vacation
time duly accrued, if they have had 6ix months
coutinuoub emplojoant with the 6tate. Such
employee6 vho verc! denied pay for work time lost
due to illness mtn~t be reimbursed for the time
thay were sick and unable to work in an amount not
to exceed their duly accrued sick leave at the
time they missed work due to illness. Such
employees who have been separated from the TEC
must be reimbursc:i for days they did not work
which were offic:J.al 6tate holidays occurring
during their employment at TEC. Such employees
who vorked on offilial state holidays other than
the “traditional national celebrated holidays” are
entitled to “compensatory time off” within a
reasonable period zlfter issuance of this opinion,
if they are currently on the TEC payroll; however,
if they have been previously separated from TEC
employment, they nce entitled to “pay at a rate
equivalent to one and one-half times the regular
rat6 of pay” at the! time of such labor. There i,s
no time limitation on payments for the benefits
earned in the past by the subject employees which
are properly established under articles 4357 or
4351b. V.T.C.S.
jIM MATTCX
Attorney General of TeXa6
TOMGREEN
First Assistant Attorney Cereral
DAVID R. RICHASDS
Executive A6SiStanC Attorney, General
Prepared by Colin J. Carl
Assistant Attorney General
p. 917
Mr. Ed Grishan - P~gc 11 (JM-204)
APPKWED:
OPINIONCOM!ITTEE
Pick Gilpin. Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Hoellinger
Nancy Sutton
p. 918