OFFICIAL OPINION No. 2

OFFICIAL OPINION No. 2 State employees-Act of July 8, 1957, P. L. 557-"Regularly employed" defined. Where incidents of employment are steady and uniform in recurrence the employment is regular within the meaning of the Veterans Preference Act of 1957. State employees-Act of Jiily R, 1957, P. L. 557-Military leaves of absence. Persons regularly employed, who are otherwise qualified and who were drafted after July of 1953, must be granted military leave of absence as of the date on which they were drafted if they are still serving their term of military service. State employees-Act of July 8, 1957, P. L. 557-Military leaves of absence-Re- placements hired for those entitled lo. Persons subsequently hired to replace those now entitled to military leave enjoy a status dependent upon the terms of their employment. Stale employees-Act of July 8, 1957, P. L. 557-Military leaves of absence- Contributions lo retirement fund. Hourly and per diem employees who are granted military leaves of absence and who are members of the retirement system may pay into the retirement system an amount determined by an average of their contributions for an established period prior to their entrance into military service. Harrisburg, Pa., September 5, 1957. Honorable John H. Ferguson, Secretary of Administration and Budget Secretary, Governor's Office, Harrisburg, Pennsylvania. OPINIONS OF THE ATTORNEY GENERAL 35 Sir: You have requested an opinion as to the proper interpretation of the Act of July 8, 1957, P. L. 557, 51 P. S. §§ 493-1 to 493.9 known as the "Veterans Preference Act of 1957." You inquire specifically as to whom the words "regularly employed" apply and more particu- larly if hourly and per diem employees employed for less than 750 hours or 100 days per annum are eligible for military leaves of ab- sence, and whether hourly or per diem employees employed for greater periods per annum are similarly eligible. The Act of May 28, 1937, P. L. 1019, Article III, § 33, 46 P. S. § 533, states that words and phrases shall be construed according to their common and approved usage, but technical words and phrases and such others as have acquired a peculiar and appropriate meaning or are defined in the act, shall be construed according to such peculiar and appropriate meaning. Of course, the troublesome word is "regu- larly." In Webster's New International Dictionary, Second Edition, page 2099, the word "regularly" is defined as: "In a regular, orderly, lawful, or methodical way; ***" On this same page we find the word "regular" defined as follows: "3. Steady or uniform in course, practice, or occurrence; not subject to unexplained or irrational variation; returning or recurring at stated or fixed times or uniform intervals; * * .,..,, This particular definition has been approved by several courts: Bankers & Shippers Ins. Co. of New York v. Blackwell, 260 Ala. 463, 71 So. 2d 267, 270 (1954); Ellis v. Stokes, 207 Ga. 423, 61 S. E. 2d 806, 809 (1950) . In addition, the Supreme Court of Pennsylvania in Zulich et al v. Bowman, 42 Pa. 83, 87 (1862), relied upon Webster's Dictionary to determine the meaning of the adverb "regularly.'' I.n Miller v. Farmers Nat. Bank et al., 152 Pa. Super. 405, 33 A. 2d 646 (1943), the Court was called upon to define "regular employee,'' in connection with a workmen's compensation claim. The facts in- dicated that the decedent was a paperhanger and painter and was di- rected by the bank to repaint the walls and ceilings of parts of the building. The decedent was to be paid for services at an hourly rate. The contemplated work would require from eight to ten weeks for completion. Some work of a like nature was done in the building each year in accordance with a definite maintenance program and for a number of years the decedent was employed to do all of this class of work. The Court found that the decedent, though his services were intermittent, was a regular employee of the bank. Judge Hirt stated at page 410: 36 OPINIONS OF THE ATTORNEY GENERAL "* * * One may be a regular employee if he performs all of the work of a class which the employer can supply; full time employment is not essential to take the work out of the class of casual employment. In Cochrane v. William Penn Hotel, supra [339 Pa. 549, 16 A. 2d 44], Mr. Justice Stern said: '* * * even though an employment is not continuous, but only for the performance of occasional jobs, it is not to be con- sidered as casual if the need for the work recurs with a fair degree of frequency and regularity, and, it being thus antici- pated, there is an understanding that the employee is to per- form such work as the necessity for it may from time to time arise. Even if there be but a single or special job involved, this does not conclusively stamp the employment as casual. If the work is not of an emergency or incidental nature but represents a planned project, and the tenure of the service necessary to complete it and for which the employment is to continue is of fairly long duration, the employment is not casual, and it is immaterial that the accident to the employee for which compensation is sought may occur within a very short pt)riod after his entry upon the work.' * * * Tenure of service may persist throughout the year though the work pro- vided is not continuous. * * *" The case of Cochrane v. William Penn Hotel, 339 Pa. 549, 16 A. 2d 44 (1940), was cited by the Court in Application of Gardner, 26 Lehigh L. J. 524 (1956) . Here the Court was called upon to deter- mine whether the applicant for a detective license had been regularly employed as a detective. The Court was willing to assume that be- cause the applicant worked about 300 hours a year on an hourly basis over a period of 3 to 5 years that this constituted regular employment. However, because there were only sporadic instances of true investi- gative work connected with the applicant's work, the Court was un- able to conclude that he was regularly employed as a detective. In addition, there are interpretations of the term "regularly em- ployed" as this was used in the Act of June 7, 1917, P. L. 600, 65 P. S. § 111, a predecessor of the Veterans Preference Act of 1957. For example, a person employed as an extra stenographer was ruled not to be a regular employee: 1917-1918 Op. Atty. Gen. 299, 300. Similarly, a substitute called to perform the duties of one in military service was not considered to be regularly employed, for his tenure was de- pendent upon the return of the person whose place he was taking: 1917-1918 Op. Atty. Gen. 503. We also note that the Act of June 14, 1947, P. L. 609, amending § 222 of The Administrative Code of 1929, granted leave privileges to hourly and per diem employees at a rate of one day for each 200 hours of employment. There was no statutory requirement for a minimum number of hours or days per annum to qualify such employees for this benefit. OPINIONS OF THE ATTORNEY GENERAL 37 From the authorities above cited it is clear that no hard and fast rule can be set forth in defining the term "regularly employed." How- ever, guide posts are set within which determinations in particular cases are to be made. The answer lies not in the quantum of work involved but in the steadiness and uniformity of recurrence of the employment. In reaching this conclusion we have not overlooked the provisions of the Act of June 27, 1923, P. L. 858, as amended, 71 P. S. § 1731, which, for the purposes of State employees' retirement benefits, states: "The term 'State employe' shall also include officers and employes regularly employed on a per diem or hourly basis, or partly at a fixed annual or monthly salary and partly on a per diem or hourly basis. Regular employment shall not be construed to include employment of less than one hundred days or seven hundred fifty hours in any year. In all cases of doubt the retirement board shall determine whether any person is a State employe as defined in this paragraph, and its decision shall be final." It is well established that a word or group of words may be given different interpretations in different statutes. The final interpreta- tion depends on the context in which the word is used and, even more significantly, the purpose of the statute. In rejecting the limited defini- tion of regular employment, quoted above, in favor of the more com- monly accepted meaning, it should be borne in mind that the Veterans Preference Act of 1957 has two definite purposes. The first and pre- dominant of these is to guarantee reemployment to persons leaving State positions for duty in the military service. In this respect the a-ct is designed to replace the Act of June 7, 1917, supra. Under this latter act the term "regular employment" had received an interpreta- tion in keeping with the common usage of the words. The second purpose of the present act is to preserve retirement rights of persons who were called upon to perform military service. In this respect, the present act serves also as an amendent to the State Employes' Retirement Act, the Act of July 3, 1941, P. L. 244, §§ 1 and 2, 71 P. S. §§ 1756.1 and 1756.2. In this narrow respect only does the present act find a historical basis in the limited legislative interpreta- tion of the words "regular employment." An exact comparison of the two predecessor acts clearly illustrates that when the Legislature wanted to give the words "regularly em- ployed" a more confined definition it freely did so. The failure to restrict these words in the Veterans Preference Act of 1957 lends 38 OPINIONS OF THE ATTORNEY GENERAL further weight to our conclusion that the more usual and liberal con- struction must be accepted, and that ''regular employee," as used in the Veterans Preference Act, means one whose employment is steady and uniform in recurrence. Your next inquiry refers to employees who were drafted after July 27, 1953, and who are still serving the term of military service for which they were drafted. Section 8 of the present Veterans Preference Act clearly sets forth that an employee otherwise eligible for military leave of absence shall be granted a military leave commencing on the date of his eligibility regardless of whether such date occurred before or after the enactment of this act. This modifies Formal Opinion No. 675, dated November 14, 1956, 1955-56 Op. Atty. Gen. 80. Such leaves will expire ninety days after the expiration of the period for which the employee was drafted. In view of the clear wording of the statute, the answer to your second inquiry is that an otherwise qualified employee drafted after July of 1953 who is still serving the term of military service for which he was drafted should be granted a military leave of absence as of the date of his eligibility. Your third inquiry is directed to the status of employees who were subsequently hired to replace persons now eligible for military leave. Basically, the answer to this question depends upon the terms of em- ployment of these new employees. There is nothing in the Veterans Preference Act which purports to alter or change any existing em- ployment rights of the substituting employees hired prior to the passage of the act. There is a presumption against retroactive applica- tion of any law: Section 56 of the Statutory Construction Act, the Act of May 28, 1937, P. L. 1019, Article IV, § 56, 46 P. S. § 556. If the new employees are covered by the provisions of the Civil Service Act of August 5, 1941, P. L. 752, as amended, 71 P. S. § 741, reference to this legislation will serve to answer many of the varying problems that might foreseeably arise. Particular attention should be directed to Article VIII, § 802 of the Act of August 5, 1941, P. L. 752, as amended by the Acts of June 1, 1945, P. L. 1366, § 1, June 21, 1947, P. L. 835, § 1, and September 29, 1951, P. L. 1636, § 2. There provisions are made for the furlough- ing of employees where a reduction of force is necessary. If a veteran's return necessitates transfer of the substituting employee to an existing vacancy, there would, of course, be no problem. If, on the other hand, there is no existing vacancy, a situation would arise OPINIONS OF THE ATTORNEY GENERAL 39 calling for a reduction in force. In this instance § 802 could be utilized to solve the problem. If a substitute employee holds an extra position or is in a pro- bationary status under civil service, reference to pertinent provisions of the Civil Service Act will provide the solution to these problems as they arise. Further, if a substitute employee is in the unclassified service, and it is impossible to transfer him satisfactorily upon the return of a qualified veteran, resort should be made to existing policy in the department, board or commission employing him. Any substituting employee hired after the effective date of the Veterans Preference Act should be employed only as a temporary substitute. (See § 3 of this Act). In your final question you attempt to ascertain the rate of payment to the retirement fund for hourly and per diem employees who are eligible for and who are granted military leaves of absence. Initially, in answering this question you should bear in mind that some hourly or per diem employees will be eligible for military leave of absence under the interpretation above and yet will not be members of the retirement system because of the narrow legislative interpretation in the Act of June 27, 1923, supra. Assuming, however, that the person is both entitled to military leave and is a member of the retirement system, the only equitable means of determining his rate of payment would be to take the average payment he had made into the fund over a prior period to be determined by the retirement board. The board should establish a standard period, for example, one year. Then the total contributions of the employee during the year prior to his entry into military service could be divided by twelve to arrive at his average monthly contribu- tion, or by four to determine his average quarterly contribution, etc. When this period is determined a uniform rule will be in effect, and the employee's payments to the fund for the period of his military leave can be made on this basis. It is, therefore, the opinion of this department and you are accord- ingly advised that- (1) Persons whose incidents of employment are steady and uniform in recurrence are regular employees within the meaning of the Veterans 40 OPINIONS OF THE ATTORNEY GENERAL Preference Act of 1957, even though they are employed on an hourly or per diem basis for less than 750 hours or 100 days per annum. (2) Employees, otherwise qualified, who were drafted after July of 1953 and who are still serving the term of military service for which they were drafted must be granted a military leave of absence as of the date on which they were drafted. (3) The status of employees who were subsequently hired and who are replacing those now entitled to military leave of absence depends upon the terms of employment of such subsequently hired persons; and (4) Hourly and per diem employees who are eligible for and who are granted military leaves of absence and who are members of the retirement system may pay into the retirement system an amount determined by an average of their contributions for an established period prior to their entrance in military service. Very truly yours, DEPARTMENT OF JUSTICE, JEROME H. GERBER, Deputy Attorney General. THOMAS D. McBRIDE, Attorney General.