The fifty-nine-minute rule: white Christmas, gray area?

Army Lawyer, March, 2006 by Mike Litak

This is their holiday treat.... There is nothing so simultaneously yearned for and ridiculous as the email invoking the 59 minute rule. We do not take this rule lightly. I am told there have actually been debates regarding the authority ... to invoke the 59 Minute Rule.... I was too busy leaving at the time to notice. (1)

Introduction

Good-natured federal managers have long used the so-called fifty-nine-minute rule to excuse brief absences by their civilian employees and to release them from duty early for almost any acceptable reason. (2) The authority for doing this at taxpayer expense, however, is unclear. One will not find a fifty-nine-minute rule in statutes or federal regulations, yet its use and affect on morale are undeniable. (3) In a workforce embracing change, supporting a war, and facing a large scale restructuring, morale can be pivotal. Even so, the caliber and commitment of federal employees might surprise many in the private sector. For the most part, these are not the caricature, clock-watching bureaucrats who sponge off of the American taxpayer and can never be fired. (4) They are, instead, dedicated personnel responsible not only for their mission but for the sound stewardship of government resources. (5) So what is it about giving them an hour off that evokes such sarcasm?

Some of this attitude, doubtless, is envy or even a twinge of guilt, but much of it may stem from concerns over the rule's propriety and appearance of propriety. As with many personnel rules, the origins of the fifty-nine-minute rule have been shrouded by time, leaving uncertainty over its status and scope. (6) Newly proposed revisions to its vestigial foundations may further obscure its basis. (7) The consequent ambiguity surrounding this time-honored tradition, ironically, can lead to its abuse and to litigation harmful to office morale (8) yet, even during the season of its most prevalent invocation, few in our workforce seem to have a free hour in which to examine its validity. Thus, it seems appropriate to do so now.

This article will briefly examine the legal and regulatory authority behind particular categories of employee absences. Next, this article examines the origins and uses of the fifty-nine-minute rule, and some noteworthy administrative case decisions involving the rule and its underlying principles. Finally, this article identifies some useful parameters for the rule, including who may approve and receive such absences and when such authority may not be used. This article reveals that there is no government-wide fifty-nine-minute rule, as such. Instead, each agency has the authority to excuse brief absences, and such absences are not necessarily limited to fifty-nine minutes.

Administrative Leave

Congress has established a basic federal workweek of forty hours, and U.S. taxpayer dollars fund civil service salaries based on this workweek. (9) To help ensure U.S. taxpayers get what they pay for, federal agencies must maintain "an account of leave for each employee in accordance with methods prescribed by the General Accounting Office [GAO, now Government Accountability Office]." (10) Hence, civil service employees must remain in some authorized status during the workweek. (11) These include duty status, absences without pay, and various forms of leave. (12) The authority to excuse civilian employees from duty is statute-predicated and often specifically regulated. (13) Unlike their military counterparts, civil servants are not authorized passes, training holidays, or permissive temporary duty. (14) Administrative leave is the closest authorized status to these military absences. (15)

Administrative leave is not specifically recognized in statute or federal regulation. (16) The power of federal agencies to grant it, nonetheless, derives from broad statutory authority to regulate their workforces. (17) Because granting administrative leave entails a paid absence without a charge to other paid leave, its use is not without restriction. (18) Comptroller General decisions and Office of Personnel Management (OPM) guidelines (19) limit grants of administrative leave to situations involving brief absences, (20) though these sources do not specifically define the meaning of "brief." (21) Based upon various agency personnel manuals, administrative leave can range in duration from minutes to days depending on the specific purpose of the leave and how it supports an agency's mission. (22) For lengthy absences, "administrative leave is not appropriate unless [it] ... is in connection with furthering a function of the agency," (23) a matter that is best evinced by a statute directly on point. (24) Further limits on administrative leave are left largely to agency discretion. (25) The Comptroller General has observed it would be appropriate for agencies even to set limits on the amount of administrative leave granted per employee, per time period, "i.e., not to exceed 4 hours in any one day; not to exceed 3 workdays; not to exceed 40 working hours in a calendar year, etc." (26) Consequently, restrictions on the purpose and duration of administrative leave often are reflected in agency regulations, policies, collective bargaining agreements, and practices.