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

Army Lawyer, March, 2006 by Mike Litak

Miscellaneous Concerns

The fact that excused absence normally is "considered part of an employee's basic workday" (136) precludes the combination of the fifty-nine-minute rule with breaks, lunch periods, and certain leave situations.

In general, two types of breaks can exist in a statutory workday: paid and unpaid breaks. (137) If an unpaid break is extended beyond its established duration, the total paid hours worked in the day must be extended to complete a forty-hour statutory workweek. (138) The broad authority in 5 U.S.C. [subsection] 301, 6101, and 6102, however, allows agencies to grant brief, paid rest periods when beneficial or essential to the efficiency of federal service. (139) These brief rest periods (e.g., fifteen minutes per morning and afternoon), if granted, are considered part of the employee's basic workday. (140) Hence, there is no accrual of unused breaks. Because an employee is in a pay status during a rest period he generally may not depart the worksite. (141) Therefore, it would be improper to authorize a fifteen-minute break immediately before scheduled leave. (142) This could create duty-hour validation problems. (143) Similarly, it is inappropriate to combine a break with a fifty-nine-minute excused absence. (144)

The distinction between lunch breaks and rest periods is clear. Time spent eating is generally not remunerable and is not considered part of the basic workday unless the employee is required to perform substantial official duties during that period. (145) Unpaid lunch breaks are generally limited by statute to no more than one hour per day. (146) Paid breaks may not be combined with unpaid lunch to increase lunchtime available, because these two types of breaks are authorized under different laws and are not compatible. (147) Thus, it is improper to approve a fifteen-minute break immediately before an unpaid lunch break. (148) Extending the unpaid lunch with a paid, excused fifty-nine-minute absence similarly would be improper. (149)

Agency authority to establish lunch breaks and rest periods is subject to review where the expenditure of public funds is involved. (150)

As discussed above, the Comptroller General has determined that paid duty time on rest breaks cannot be tacked onto periods of other scheduled leave at the end of a workday. (151) An early departure obtained by adding break time to scheduled leave at the end of a day does not satisfy the time and attendance reporting requirements for an employee to be credited with having worked a full administrative work week. (152) This decision does not prevent a combination of excused absence at the end of one day with holiday leave on the next, though agency rules may limit such use for ethical reasons. (153) Bear in mind, though, that any excused absence must still be accounted for properly on time and attendance reports. (154)

So, Would a DOD Supervisor Really Go to Jail for Granting the Shop Sixty Minutes Off?

Reference to a "fifty-nine-minute rule" regarding early dismissals is a bit misleading. It is at least partially a practice more than a rule to begin with, and its purpose varies among organizations. (155) Even its time designation is a misnomer. (156) Agency minimum leave charges (e.g., of six or fifteen minutes) would force a rounding-off of the employee's time card to sixty minutes, when the rule is exercised. Moreover, there is no set time limitation for such excused absences when they are not, for example, used to excuse tardiness in reporting to work. The time limitation is more a matter of prudence. The Comptroller General's Christmas Case makes no mention of time for that particular group release other than for the afternoon, but rather, it validates the existence of local discretion to grant brief excused absences that reflect public and private sector practices. (157) The practice at issue there (granting time-off-at Christmas) was amply supported. The President, for example, authorized most of the federal executive branch workforce an entire day of excused absence on the day after Christmas in 2003, (158) and similar half-day excusals on Christmas Eve, tied into authority for holiday leave, have been a sporadic tradition. (159) Similarly, the FLRA decision in Department of Veterans Affairs Medical Center Asheville exceeded fifty-nine minutes, though the impact (absent multiple, concurrent birthdays) was limited to individuals rather than groups. But, occasional good will gesture releases may be granted, as well, under fifty-nine-minute authority. (160)