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

Army Lawyer, March, 2006 by Mike Litak

Thus, while excused absence authority need not be exercised in connection with a flat tire on the way to work, or as a method of avoiding minimum leave charges, an expansive interpretation and application of the rule's origins (from forgiving tardiness and brief absences for any acceptable reason to granting brief absences for any acceptable reason) coupled with an element of frugality (in terms of brevity of absence and regulatory foundation) likely have led to the retention of its namesake time limitation even when used for early releases of groups of employees. Nothing in DOD or Army regulations precludes a longer "brief period" of group excused absence for valid reasons. (161) While managers are not limited to the examples listed in those regulations, excusal grounds similar to those listed can avoid controversy. (162) In this regard, it appears that no specific excusal ground allows DOD managers more flexibility than "brief absences of periods less than 1 hour."

Conclusion

The true gray area, therefore, is not what authority there is for a fifty-nine-minute rule, or who has the authority to grant or receive it. The true gray area lies in the purpose and frequency of the rule's invocation. While regularly recurring excusals that have the effect of a federal workweek reduction in duty hours are outside the parameters of management discretion, (163) the occasional and infrequent use of the fifty-nine-minute rule as a good will gesture, especially in association with a recognized federal holiday is clearly within them. (164) So, while federal employees need not feel too guilty about getting an occasional hour off, between these examples lays an icy slope that could lead to time and attendance audits and raise issues of proper judgment with the potential for discipline. Alter all, DOD employees are responsible for the sound stewardship of government resources--every one of them. (165)

(1) TegWar, Why I Love My Job, Reason #59, The 59 Minute Rule, http://www.tegwar.blogspot.com/(Nov. 24, 2004).

(2) Id.; see also infra notes 113, 156, 161.

(3) See, e.g., Matt's House of Nothing in Particular, Lowest of the Low, http://www.mhonip.com/index.asp (July 20, 2004) (evincing adverse impact on contractor employee morale when denied excused absence by a contractor, while co-located federal employees received it) (on file with author).

(4) This comment is based on the author's professional experiences as an Attorney-Advisor with the Office of the Judge Advocate, HQ, U.S. Army Europe & Seventh Army, and at various other U.S. Army legal offices in Germany from December 1983 through the present, especially in regard to Europe-based civilian support of various operations during that period.

(5) See U.S. DEP'T OF DEFENSE, REG. 5500.7-R, THE JOINT ETHICS REG. para. 2-301b (Aug. 1993) [hereinafter DOD REG. 5500.7-R].

(6) See, e.g., supra note 1 and accompanying text.

(7) 70 Fed. Reg. 1072 (5 Jan. 2005) (proposing a change to be codified at 5 C.F.R. [section] 630.209 that would limit agency minimum leave charge to either six or fifteen minutes).