Case Information
The Attorney’ General of Texas Octsaber 3, 1984
JIM MAlTOX
Attorney General opinion No. JM-io4 Mr. Ed Crisham
Supreme Court Budding Chairman P. 0. BOX 12548 Texas Employment Ccamission Re: Whether temporary and Aus:,“. TX. 70711.254a 51214752% T.E.C. Building part-time Telex 9101974.1367 15th and Congress, Suite 624 Texas Employment Commission Telecopier 512l475-0295 Austin, Texas accrue vacation, sick leave 78178
and holiday time 714 Jackson. Suite 700 Dallas. TX. 752024508 Dear Mr. Grisham: 2141742.8944
You have aslwd folloving questions regarding “certain temporary and part-.t ime employees” the Texas Employment Commission: 4824 Amma Ave.. Suite 169 El Paso. TX. 79905’2793 915153334a4 1. Art! temporary or part-time employees of the
Texas EP?loyment Commission whose wages and salaries .are indirectly paid with federal monies 11 Texas. Suite 7M) entitled to accrue vacation, sick leave, or ,iou,ton, TX. 77W2-3111 holiday c::.me credit as other state employees? 713/2236895 895 Broadway. Suite 312 Lubbock. TX. 794013479 [50617476235] another accumula,xd vacation and sick employmarc from the Texas Fmployment Commission to 2. I:! so. are such employees who transfer state agency entitled leave time credit? to transfer their
4309 N. Tenth. Suite 8 are Texas Employment Commission 3. I:! so, McAllen. TX. 79501-1685 employee:3 who resign, are dismissed, or who are 5121882.4547 separated, to be paid for all vacation [51212254191] 200 Main Plaza. Suite 400 San Antonio. TX. 70205-2797 mouths? coutizuw~ 3 employment with time duly accrued at the time of separation en.ployment, provided the employee has had the state from six if such employees, under
An Equal OpportunityI 4. xc so. Afficmativa Action Employer establis’i cd administrative construction, were denied pzly for work time lost due to illness, should those employees be reimbursed 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? If so. are such employees vho have become 5. Texas Employment Commission from *2 Hr. Ed Grisham - Page 2 LIHI-204) be rrimbursed for days they did not
work that were official stat. holidaya?
6. If so, arIb such employace who have become from Texan Employment Comisaioa 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 your questions, you point out several factors regardl.ng the subject employees which ,you suggest might be helpful in de!:rrmining the propri.ety current administrative constructloo about the non-availability certain You note that “]t]here is no mutual benefits to such employees.
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 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 were they paid employment, 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, 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 from various 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 in Attorney Genc!ral Opinion X-125 (1967). which alao held. reaffirmed citing Attorney General Opinion C-530 (1965). that “(i]nasmuch as these federal funds [recei~red by TEC] are deposited in the State Treasury, the Secretary of Labor they are state funds.” indeed, expressly prohibited from exercising any authority with respect to the compeasation of employees DE state employment security agencies. 42
L *3 (J&204) Mr. Ed Crisham - PO@? 3
U.S.C. 1503(a)(l). Hence, in answer to your first question, it Is rnd part-time clear beyond cavil TEC’s hourly, temporary that employees ore entitled to receive vacation , sick, and holiday leave on the same basis as other similarly situated state employees.
Because 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 such extent are entitled The state statukry provisions affecting the vide range of benefits.
rights, privileges, benefil:t:, and obligations of state employees are Not only do we have no n&d to catalogue multifnrjous and scattered.
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, 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 CLASSIFICATION PLAN.
. . . . 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. these employees,
In computing the :;alaries to the rates rates bf pay shz.ll be proportional authorized for Fill-time classified employment.
It is further pr&ided that part-time employees as described in this subsection shall be subject all of the proviciions of this section. -
o. HOURLY EMI’I.OYEES. It ic the intent of the Legislature that hourly employees shall receive per hour rate :.rcreases proportionate those provided th,rr Act full-time salaried classified emplo$es --a
. . . .
Sec. 2 METHOll OF SALARY PAYMENTS. . . .
f. OVERTIME. When a regular, full-tine employee is required to work hours in excess of standard F’C rk week established *4 Mr. Ed Grisham - Page 4 (JM-:!04)
position in accordance with applicable statutes, the employee shall tse entitled to compensation for (1) by receiving l qu~vslent such overtime eithgr::: 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 In cases vhere granting compensatory agency, time by receiving pay at s rate off imprscticsble, equivalent to one md one-half times regular rate of pay. . . .
Sec. 7 RMPLOYEIS WORKING HOURS ANU HOLIDAYS. . . . . state employees
E. Holidays for . . . including hourly wage workers each year covered by this At? shall be those specified
Article 4591, Vernon’s Civil Statutes, as amended.
For institutic~rs and agencies 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
institutions 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 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, 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. 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. . . .
Mr. Ed Crisham - Psge 5 (.RI-204)
Sec. 8. EMPLOYEES VACATIONS ANTI LEAVES. a. Other than faculty with appointments of less twelve montxs at institutions of higher than education, employees of the state shall, ,without deduction in sela,xy be entitled s vsution
each fiscal yeaL. Such entitlement shell be eerned in sccordaa:e with folloving schedule:
. . * . An employee ,rlll e*rn vac*tion entitlement beginning on the first day of employment with the state termtnating on the last day
duty. . . . Credit for one month’s accrual will be given for each month or fraction a month of employment with :he state and will be posted
each employee’s l.r!ave record on the first day of employment with the state and on the first of each succeeding month 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 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 has had continuous employee employment with the state for six (6) months.
. . . . E. Employees, of 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 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. . . . . . .
Mr. Ed Crlsham - Page 6 (Jkk.204)
d. . . . . of higher ogencieo
For instituti 21s end 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 status 8s a condition student regular of
employment. Or.l,y institutions and agencies of higher education shall be eligible for paid vacation and leave as provided herein.
. , . . A r!nlployee who transfers directly f. from one State agency to another, shall be given credit by the rweiving agency 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 each employee, reasons of therefor whether :i::om sickness. vacation, or leave absence withow: pay. Such records shall be available for pub:t:tc inspection. l’he State Anditor shall provide a uniform j.
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 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
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 the conclusion *7 Mr. Ed Crlsham - Pags 7 (JIG204)
attorney General Opihion M-1014 (1971) which held that “hourly and employees are cnj::ltled to the ssme holidays, with PS!I, 88 part-time those raceived by employeerl on s regular monthly baris.” See 17.~.
Likewise, n-1014 also found that the granting of vacation time on a for the time vork6d vss consirtenr with percentage ba6i6 provisions of the general rFpropristlons act and further thst regular to the 6ame benefits a8 those full-time hourly employee6 ware entitled granted to regular full-tine monthly employees. We find no reason to The general depart from the holdings of these two opinions. the holiday , vacation and sick leave provisions
applicability of all of article V of the curwnt appropriations act to part-time and temporary tmployees is further confirmed by hourly, 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 the exclusion of faculty with months.” Sets. 7.c.. 8.d. Similarly.
less than twelve-month appointment6 from the vacation provisions section 8.a. compels inference that, in general, other state employees are entitled to the benefits of those provisions. Finally, the comptroller to determine “leave Lbe narrow exception give1 to 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 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 . . . State employees . . shall be . . . as may be provided all 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 for example, contrast, .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.
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 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 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, *8 (JE-204) Mr. Ed Crislism - Page 8 employ6es are entitled under
all hourly, 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 under the t:hird paragraph of section 7.~c., hourly, sixth question.
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 Hence!, at least for the limited purpose of the suggest6 a solution.
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, to all the benefits accruing thereto,” and that “[nlone of 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 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
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 1975, which indicate chat temporary 8. part-time emplo),c:es are entitled same benefits as full-time employees with part-time receiving a proportional amount.
Recommendation! - Temporary employees should accrue annual ani sick leave in proportion
hours worked ant. should be required to meet the minimum work period six continuous months before annual lorve can be taken. Balances due current tempera:::’ employees should be awarded retroactively. *9 (;>I-204)
Mr. Ed Crisham - Page 9 ResPylse - The agency has requested an Attorney TEC will Caneral s Opinion on Chi6 6ubject.
comply with wh6r AG rccommnds and we vi11 provide a~ copy of thio opinion when received.
State Auditor Managsment Lo*:ter to Member6 TEC. June 15. 1984, p. you have adf:lsed that you have always complied with In fact,
5. 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 time of to which ve hold they were separation or prior theret’, , the benefit6 entitled.
ThUS. we now turn to question seveu to consider what, if any, limitations there are on )‘our obligation to reimburse such former 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, 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 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.. the appropriation Comptroller of. special funds the payment of small claims, from anytime prior available to satisfy claim:, dating to September 1, 1982. Thus, there are no .:i.me limitations on the payment of claims the benefits in question for hourly, 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 the TeXa6 Ihlployment Covaaission are employees and entitled to accrue vacation. sick leave, and holiday time credit under the same *10 (JM-204) Mr. Ed Crirham - Pag6 10 ot t,er similarly situated
condition6 es employees. Such enployees who transfer employment from the Tl?C to another stats agency are entitled trsosf6r their sccumulatcd vacation and sick Such l mploy6es are entitled leave time credit. at th6 time of separation to be paid for all vacation time duly accrued, if they have had 6ix months coutinuoub emplojoant with 6tate. Such employee6 vho verc! denied pay for work lost time due to illness mtn~t be reimbursed the time thay were sick and unable to work in an amount not to exceed their duly accrued sick leave at the illness. time they missed work due 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 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 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 TOM GREEN
First Assistant Attorney Cereral
DAVID R. RICHASDS A6SiStanC Attorney, General
Executive
Prepared by Colin J. Carl
Assistant Attorney General *11 - P~gc 11 (JM-204)
Mr. Ed Grishan
APPKWED:
OPINION COM!ITTEE
Pick Gilpin. Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Hoellinger
Nancy Sutton