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

Army Lawyer, March, 2006 by Mike Litak

Thus far, this article has discussed conventional civil service employees receiving time off under the fifty-nine-minute rule; (116) however, numerous other individuals work in federal government facilities, not all of whom may be eligible for a fifty-nine-minute excusal. Government contractor employees, nonappropriated fund employees, and overseas local national (LN) employees require further examination.

Contractor employees are not U.S. Government employees. (117) Their terms and conditions of employment are established in contracts, not under federal employment law. (118) Federal supervisors may not grant excused absences to a private firm's employees. (119) Many of the same concerns that surround contractor participation in agency office parties or unit-level activities (e.g., organization days) arise in excused absence situations. (120) This is a case where "no good deed goes unpunished." (121) Not only may the contractor dock the pay of improperly released workers, the government may incur liability for consequent contractor delays and may hold agency supervisors accountable for any resulting unauthorized expenditure of appropriated funds. (122) Furthermore, the need to facilitate contractor support, and to verify that it is being provided, can necessitate that some federal employees also remain at the work site rather than leaving it fifty-nine minutes early.

Nonappropriated fund (NAF) employees are federal employees, but they are excluded from most of the laws administered by the OPM. (123) Consequently, in accordance with DOD and subordinate component regulations, NAF employees may enjoy excused absences on a less restrictive basis than appropriated fund employees. (124) Nevertheless, within the DOD, supervisors must also exercise this authority sparingly. (125)

Local national employees often are not considered federal employees within the meaning of 5 U.S.C. [section] 2105, but their federal employment is statutorily authorized. (126) The DOD contemplates two systems of foreign national employment overseas: indirect hire and direct hire systems. (127) The host nation is the legal employer of LN employees in the former system, (128) while U.S. Forces are their legal employer in the latter system. (129) Employment conditions for LN employees normally are founded in treaties, agreements, or contracts with local unions. (130) Thus, one must consult these documents and corresponding regulations to determine the scope of excused absence authority for LN employees. (131) Other restrictions may exist. For example, a DOD regulation provision on holidays in foreign areas cautions that "employees may not be relieved of duty without charge to leave or loss of pay on a day that is not their 'official' holiday, unless the absence is due to circumstances that prevent work...." (132) This is consistent with DOD's preclusion on the use of administrative dismissal to effect holidays, activity down days, or training days. (133) Thus, local regulations may provide for such holiday excusals when circumstances such as activity closings, critical personnel disruption due to observance of holidays, or emergency conditions may prevent the performance of work. (134) Local regulations also often provide examples of other appropriate instances of administrative leave for LN employees. (135)