.




                                    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
