### THE ATTCMRNEY GENERAL OR' TEXAS
Cctober 8, 1986

EonorableLloyd Criss Chairman Labor and EmploymentRelat:ions committee Texas House of Representat:ives P. 0. Box 2910 Austin. Texas 78769 Opinion NO. JM-556
Re: Whether a state employee may be denied a merit increase because of absence for a workrelated injury

Dear RepresentativeCriss:
You inquire about the denial of a merit pay increase to an employee of the Texas DeIlartmentof Corrections. The employee was hired in September, 1983 and, during the year that followed, was absent on an approved woI.uz's compensation claim for about two and one half months. In Septmber 1984, she received a one-year service pin and began receivinghuardous dutypay, but was denied a merit pay increase because of her absence on the worker's compensation claim. You ask whether the departmentmay refuse to consider an employee for amerit pay raise solelybmause the employeewas absent for recuperation from a work-related yinjuryfor which the employee's worker's compensationclaimwas appmved. Article 6813b,V.T.C.:;., provides, inpart, that [8]11 salaries o:Eall State officers and State employees. incl.uding the salaries paid any individual out of the General Revenue Fund, shall be in such sums or amounts as may be provided for by the Legislature in the biennial Appropriations Act.
V.T.C.S. art. 6813b, §l. The Position Classification Act of 1961. article 6252-11, V.T.C.S., provides that the salaries of full-time employees, with certain exceptions, "shall also conform with the Position ClassificationPlan hereinafterdescribedand with the salary rates and provisions of the applicable Appropriations Act. . . ." V.T.C.S. art. 6252-11, 82; seeAttorney General Opinion H-105 (1973). .- Since the employee in questionwas hired in September, 1983, the General AppropriationsAct for the 1983-85biennium governs her compensation. Provisions re:Latingto the Position Classification Plan are set out in section 1 of articleV of the 1983 General Appropriations Act. Acts 1983, 63th Leg., ch. 1095, art. V, 91, at 6171. Article V, section 1 state; inpart:

p. 2472HonorableLloyd Criss - Pae,e2 (JM-556)

a. SALARYRATES FOR CLASSIFIEDPOSITIONS. For each fiscal year beginning September 1, 1983, within the limitation of funds available for salaries of clarlsifiedpositions, annual salary rates for class,ified positions shall be in accordance with the above Classification Salary Schedules.

. . . . d. MERIT SALKRY INCREASES. It is expressly provided that c.gency administrators may grant merit salarv inc'reasesto classified emulovees

_ I whose job perf,Drmance and productivity is consistently abtnre that normally expected or required. Such merit increases shall be subject to the followingrestrictions. (Emphasisadded). The restrictions enumerated under section Id. pertain to the source of funds, themaximtmL monthly expenditurerate formerit salary increases, merit increases;for line item positions, accounting and reporting, and the application of merit increases throughout the agency's classified salary g;rouping.Finally, the followingprovision states conditions for elig~.bility formerit increases: (7) For an eszloyee to be eligible for amerit salary increase, t:he followingadditionalcriteria must be met: (g) the employee must have been employed by the %gency for at least six months. (b) at least 6 m&ths must have elapsed since the employee's last promotion or merit-increase, and (c) agency criteria for granting merit salary increases must :include specific criteria and documentationto s;ubstantiate the granting ofmore than a one stt!pmerit increases. (Emphasis added).
Acts 1983, 68th Leg., ch. :.Cl95, art.V, §ld.(l),at 6196. The employee in question had been employed by the Department of Corrections for a calendaryear before she was considered for a merit pay increase. Thus, even :.i! her two and one halfmonths of absence on an approved compensation c1.ai.m were not counted, she still had been "employed by the agency fcmrat least six months." Nevertheless, you express general concern ;iboutwhether time spent off work for a worker's compensation claim must be considered in determining eligibility for considerationfor: amerit pay raise.
We do not believe that the quoted provision requires the employee'spresence each working day for sixmonths. Attorney General Opinion H-105 (1973) addressed an appropriationsact provision which awarded pay increases to state employees with five or more years

p. 2473Honorable Lloyd Criss - Pa:$e3 (JM-556)

"total continuous service' as of a particular date. See Acts 1973, 63rd Leg., ch. 659, art. 'J:, §la.(l), at 2191. Some state employees, although hired more thar. five years previously, had experienced interruptions in their five years' serviceby prolonged illness. The opinion pointed out the distinction between "service" and "employment":

Those who remai;Il%d in its [the state's] employ but, for instancm>, were on vacation (certainlynot 'serving')would interrupt their serviceand would not 'continuous:.yserve' the State. (Emphasis added).
Thus, the phrase "employed by the state" means that the employment relationship exists, and rot that the employee serves the state each working day, without authorized absences. If the employee remains on the payroll, or if tbe employment relationship is otherwise demonstrated, he is still employed while absent on leave. Attorney General Opinion H-105 further decided, based on legislative intent, that the appropriationsac'c provisionrequired five years of se:?rice unbrokenby any unauthorized or unreasonable absences. Holidays, days on sick leave, week-ends, emergency leaves and other approved leaves,with or withoutpay, do not break the continuityo:Eservice.
Two opinions of thi!;office construing the nepotism statute, article 5996a.V.T.C.S.. also support our interpretationof the merit pay provision. In LettszrAdvisory No. 151 (1978) this office construed the exception in article 5996a, V.T.C.S., for persons who had "been continuously employed"by a governmentalbody for two years before the election or appointment of an officer or board member related to them within 21prohibited degree. The Letter Advisory quoted from Cox v. Brown, ,jOS.W.2d 763, (MO.App. 1932), inwhich the Missouri Court of Appeals ,stated that [t]o be employetlin anything means not only the act of doing it, but also to be engaged to do it. or:to be under contractor orders to do it.

Unemolovm 1946 989 App. 1925, judgmi "hired"). The Let1 Cox v. Brown, 50 S.W.2d at 764. Accord, Rousseau v. TeledyneMovible Offshore. Inc., 619 F. Supp. 1513, 1517 (W. D. La. 1985); Bigger v.

,entCompensation Commission, 46 A.2d 137 (Del. Super. Ct. ), aff'd. 53A.2d 761 zlel.1947); In re CormicksEstate, 160N.W. (Neb. 1916). See Rose v. Clutter, 271 S.W. 890, 891 (Tex.Comm'n

---

. adopted) ("employed" has the same meaning as :erAdvi!lory

concluded that

a school district employee who is between terms but has had his contract renewed for the

p. 2474HonorableLloyd Criss - Pagl!4 (JM-556)

succeeding schoo!.year is employed within the meaning of the nepotism statute.
In Attorney General Opinion Hi-45 (1983) we dealt with the Nepotism Act proviso for persons "continuously employed"prior to the time their relatives became officers of the governmental body. We reaffirmed the conclusion of Letter Advisory No. 151 that an individual may be continuously in the employ of the school district even thoughnot rendering servicesat all times throughout the year.
We conclude that the employeewould have been "employed by the agency for at least six months" under the merit pay provision of the 1983GeneralAppropriationsAct if shehad been hired sixmonths prior to the time ofmerit pay coneiderationand had remained on thepayroll or otherwise continued to o~:cupy the status of an employeeduring that time. The two and one half months' absence to recuperate from a compensablework-related inj,uryshouldnot be subtracted from the six months' employment, and she should not be refused consideration for merit pay because of that a',sence. The 1983 General Appr~,priations Act provides that merit salary increases may be awarded to "classified employees whose job performanceand productivity ia consistentlyabove that normally expected or required." A merit pay increase is thus awarded on the basis of performance. See Attorney General Opinion H-106 (1973). It may be the case that= employee **has** not actually worked for a sufficient length of time to determinewhether the employee'sperformance exceeds expectations. All conditicns for the award of merit pay must be met in order for an employee to receive it.
SUMMARY Under the merit pay provision of the 1983 General Appropriations Act, an employee has been "employed by the agency for at least six months" if he was hired at least sixmonths previously and has remained on thepayroll or otherwise continued to occupy the status of an employee. If the individual is absent on an approved worker's compensation claim i!ora portion of **the** six months' employment, he has not for that reason failed to have been employedby the agency for sixmonths.

Attorney General of Texas
JACK HIGHTOWKR First AssistantAttorney General

p. 2475. HonorableLloyd Criss - Page 5 (JM-556)

MARY KELLER ExecutiveAssistantAttorney General
RICK GILPIN Chairman,Opinion Committee Preparedby SusanL. Garrison AssistantAttorney General

p. 2476