          THE     ATTCMRNEY           GENERAL
                      OR' TEXAS

                         Cctober 8, 1986




Eonorable Lloyd Criss                       Opinion   NO.   JM-556
Chairman
Labor and Employment Relat:ions             Re:   Whether a state employee
   committee                                may be denied a merit increase
Texas House of Representat:ives             because of absence for a work-
P. 0. Box 2910                              related injury
Austin. Texas   78769

Dear Representative Criss:

     You inquire about the denial of a merit pay increase to an
employee of the Texas DeIlartment of Corrections. The employee was
hired in September, 1983 and, during the year that followed, was
absent on an approved woI.uz's compensation claim for about two and
one half months. In Septmber 1984, she received a one-year service
pin and began receiving huardous duty pay, but was denied a merit pay
increase because of her absence on the worker's compensation claim.
You ask whether the department may refuse to consider an employee for
a merit pay raise solely bmause the employee was absent for recupera-
tion from a work-related yinjury for which the employee's worker's
compensation claim was appmved.

     Article 6813b, V.T.C.:;.,provides, in part, that

          [8]11 salaries o:E all State officers and State
          employees. incl.uding the salaries paid any
          individual out of the General Revenue Fund, shall
          be in such sums or amounts as may be provided for
          by the Legislature in the biennial Appropriations
          Act.

V.T.C.S. art. 6813b, §l. The Position Classification Act of 1961.
article 6252-11, V.T.C.S., provides that the salaries of full-time
employees, with certain exceptions, "shall also conform with the
Position Classification Plan hereinafter described and with the salary
rates and provisions of the applicable Appropriations Act. . . ."
                           see Attorney General Opinion H-105 (1973).
V.T.C.S. art. 6252-11, 82; .-

     Since the employee in question was hired in September, 1983, the
General Appropriations Act for the 1983-85 biennium governs her com-
pensation. Provisions re:Lating to the Position Classification Plan
are set out in section 1 of article V of the 1983 General Appropria-
tions Act. Acts 1983, 63th Leg., ch. 1095, art. V, 91, at 6171.
Article V, section 1 state; in part:



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Honorable Lloyd Criss - Pae,e2   (JM-556)




            a. SALARY RATES FOR CLASSIFIED POSITIONS. For
         each fiscal year beginning September 1, 1983,
         within the limitation of funds available for
         salaries of clarlsified positions, annual salary
         rates for class,ified positions shall be in
         accordance with the above Classification Salary
         Schedules.

             .   .   .   .

             d. MERIT SALKRY INCREASES. It is expressly
          provided that c.gency administrators may grant
          merit salarv inc'reases to classified emulovees
                                                    _   I




          whose   job  perf,Drmance and   productivity is
          consistently abtnre that normally expected or
          required. Such merit increases shall be subject
          to the following restrictions. (Emphasis added).

     The restrictions enumerated under section Id. pertain to the
source of funds, the maximtmLmonthly expenditure rate for merit salary
increases, merit increases; for line item positions, accounting and
reporting, and the application of merit increases throughout the
agency's classified salary g;rouping. Finally, the following provision
states conditions for elig~.bilityfor merit increases:

             (7) For an eszloyee to be eligible for a merit
          salary increase, t:hefollowing additional criteria
          must be met:    (g) the employee must have been
          employed by the %gency for at least six months.
          (b) at least 6 m&ths must have elapsed since the
          employee's last promotion or merit-increase, and
          (c) agency criteria for granting merit salary
          increases must :include specific criteria and
          documentation to s;ubstantiatethe granting of more
          than a one stt!p merit increases.        (Emphasis
          added).

Acts 1983, 68th Leg., ch. :.Cl95,
                                art. V, §ld.(l), at 6196.

     The employee in question had been employed by the Department of
Corrections for a calendar year before she was considered for a merit
pay increase. Thus, even :.i!her two and one half months of absence on
an approved compensation c1.ai.mwere not counted, she still had been
"employed by the agency fcmrat least six months." Nevertheless, you
express general concern ;ibout whether time spent off work for a
worker's compensation claim must be considered in determining eligi-
bility for consideration for:a merit pay raise.

     We do not believe that the quoted provision requires the
employee's presence each working day for six months. Attorney General
Opinion H-105 (1973) addressed an appropriations act provision which
awarded pay increases to state employees with five or more years



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Honorable Lloyd Criss - Pa:$e3   (JM-556)




"total continuous service' as of a particular date. See Acts 1973,
63rd Leg., ch. 659, art. 'J:,§la.(l), at 2191. Some state employees,
although hired more thar. five years previously, had experienced
interruptions in their five years' service by prolonged illness. The
opinion pointed    out   the   distinction between    "service"  and
"employment":

          Those who remai;Il%din its [the state's] employ
          but, for instancm>,were on vacation (certainly not
          'serving') would interrupt their service and would
          not 'continuous:.y serve' the State.     (Emphasis
          added).

Thus, the phrase "employed by the state" means that the employment
relationship exists, and rot that the employee serves the state each
working day, without authorized absences. If the employee remains on
the payroll, or if tbe employment relationship is otherwise
demonstrated, he is still employed while absent on leave. Attorney
General Opinion H-105 further decided, based on legislative intent,
that the appropriations ac'cprovision required

          five years of se:?riceunbroken by any unauthorized
          or unreasonable absences. Holidays, days on sick
          leave, week-ends, emergency leaves and other
          approved leaves, with or without pay, do not break
          the continuity o:Eservice.

     Two opinions of thi!; office construing the nepotism statute,
article 5996a. V.T.C.S.. also support our interpretation of the merit
pay provision.    In Lettszr Advisory No. 151 (1978) this office
construed the exception in article 5996a, V.T.C.S., for persons who
had "been continuously employed" by a governmental body for two years
before the election or appointment of an officer or board member
related to them within 21 prohibited degree. The Letter Advisory
quoted from Cox v. Brown, ,jOS.W.2d 763, (MO. App. 1932), in which the
Missouri Court of Appeals ,statedthat

          [t]o be employetl in anything means not only the
          act of doing it, but also to be engaged to do it.
          or:to be under contract or orders to do it.

Cox v. Brown, 50 S.W.2d at 764. Accord, Rousseau v. Teledyne Movible
Offshore. Inc., 619 F. Supp. 1513, 1517 (W. D. La. 1985); Bigger v.
Unemolovm,ent Compensation Commission, 46 A.2d 137 (Del. Super. Ct.
1946), aff'd. 53 A.2d 761 zlel. 1947); In re Cormicks Estate, 160 N.W.
989 (Neb. 1916). ---
                   See Rose v. Clutter, 271 S.W. 890, 891 (Tex. Comm'n
App. 1925, judgmi . adopted) ("employed" has the same meaning as
"hired"). The Let1:er Advi!loryconcluded that

         a school district employee who is between terms
         but has had his contract renewed for the




                                 p. 2474
Honorable Lloyd Criss - Pagl!4     (JM-556)




         succeeding schoo!. year is employed within       the
         meaning of the nepotism statute.

     In Attorney General Opinion Hi-45 (1983) we dealt with the
Nepotism Act proviso for persons "continuously employed" prior to the
time their relatives became officers of the governmental body. We
reaffirmed the conclusion of Letter Advisory No. 151 that an
individual may be continuously in the employ of the school district
even though not rendering services at all times throughout the year.

     We conclude that the employee would have been "employed by the
agency for at least six months" under the merit pay provision of the
1983 General Appropriations Act if she had been hired six months prior
to the time of merit pay coneideration and had remained on the payroll
or otherwise continued to o~:cupythe status of an employee during that
time. The two and one half months' absence to recuperate from a
compensable work-related inj,uryshould not be subtracted from the six
months' employment, and she should not be refused consideration for
merit pay because of that a',sence.

     The 1983 General Appr~,priationsAct provides that merit salary
increases may be awarded to "classified employees whose job per-
formance and productivity ia consistently above that normally expected
or required." A merit pay increase is thus awarded on the basis of
performance. See Attorney General Opinion H-106 (1973). It may be
the case that=     employee has not actually worked for a sufficient
length of time to determine whether the employee's performance exceeds
expectations. All conditicns for the award of merit pay must be met
in order for an employee to receive it.

                             SUMMARY

             Under the merit pay provision of the 1983
          General Appropriations Act, an employee has been
          "employed by the agency for at least six months"
          if he was hired at least six months previously and
          has remained on the payroll or otherwise continued
          to occupy the status of an employee. If the
          individual is absent on an approved worker's com-
          pensation claim i!ora portion of the six months'
          employment, he has not for that reason failed to
          have been employed by the agency for six months.




                                         Attorney General of Texas

JACK HIGHTOWKR
First Assistant Attorney General



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.

    Honorable Lloyd Criss - Page 5   (JM-556)




    MARY KELLER
    Executive Assistant Attorney General

    RICK GILPIN
    Chairman, Opinion Committee

    Prepared by Susan L. Garrison
    Assistant Attorney General




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