s002860

Office of the General Counsel

Date: May 25, 1999
Matter of: [xxx]
File Number: S002860

OPM Contact: Paul Britner

A Forest Service employee at the [xxx] was placed in absent without leave (AWOL) status after failing to turn in his time and attendance form in the time prescribed in an agency memorandum. The agency does not dispute that the employee was present and performed work during the pay period. Nonetheless, consistent with its policy, the agency withheld the employee's pay until the proper form was submitted, resulting in a delay of one pay period in the employee's pay. Consequently, allotments from the employee's pay to his creditors and to his bank accounts and Thrift Savings plan also were delayed.

Although the employee turned in the required form during the next pay period and has been paid, the employee requests that the AWOL status be removed from his record, that the policy be discontinued, that the agency send explanatory letters to creditors who were not paid on time, and that the agency reimburse him for lost interest from deposits that would have been made to his bank and Thrift Savings accounts.

The policy at issue states:

Effective immediately the Personnel Office will no longer send reminders after the close of a Pay Period (PP). The last transmission of T&A's will be done the second Friday of the PP by 4:00 PM. . . . Employees who have not submitted their T&A's by this date will be placed in Absence Without Leave (AWOL) status, with the resulting delay in the receipt of their salary.

An agency may not charge leave to an employee whom it knows was present and performed work. Although not formally defined in OPM's regulations, implicit in the term "leave" is the notion that the employee is not at work and performing official duties. See 5 U.S.C. 6302 (annual and sick leave are provided for days "on which an employee would otherwise work and receive pay . . .") See also 5 C.F.R. 630.206(b) ("When an employee is charged with leave for an unauthorized absence or tardiness, the agency may not require him to perform work for any part of the leave period charged against his account.")

Accordingly, the policy described above, when applied to employees the agency knows have been present, is contrary to law and should be discontinued. The employee's personnel records should be corrected to remove any notice that the employee had been placed in AWOL status. As for the employee's other claims, although the agency may provide the notice to the employee's creditors requested by the employee, there is no legal authority requiring them to do so. Moreover, there is no authority to pay the unpaid interest claimed by the employee. Therefore, those two claims are denied.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.