B-150253, FEBRUARY 20, 1963, 42 COMP. GEN. 429

B-150253, FEBRUARY 20, 1963, 42 COMP. GEN. 429

RETIREMENT - CIVILIAN - SALARY COMPUTATION FOR DEDUCTIONS - OVERTIME EFFECT. RETIREMENT - CIVILIAN - SALARY COMPUTATION FOR DEDUCTIONS - LEAVE EFFECT. RETIREMENT - CIVILIAN - SALARY COMPUTATION FOR DEDUCTIONS - NIGHT WORK. LEAVES OF ABSENCE - WITHOUT PAY - REDUCTION OF LEAVE ACCRUAL - SUBSTITUTION OF OTHER THAN REGULARLY SCHEDULED WORK RETIREMENT DEDUCTIONS FROM THE COMPENSATION OF A WAGE BOARD EMPLOYEE WHOSE REGULAR 40-HOUR WORKWEEK CONSISTS OF FOUR 10-HOUR DAYS FOR WHICH UNDER SECTION 201 OF THE WORK HOURS ACT OF 1962, AMENDING SECTION 23 OF THE ACT OF MARCH 28, 1934, HE RECEIVES STRAIGHT-TIME PAY FOR 8 HOURS A DAY AND OVERTIME PAY OF NOT LESS THAN TIME AND ONE-HALF FOR THE 2 HOURS EACH DAY IN EXCESS OF 8 SHOULD BE COMPUTED AT THE EMPLOYEE'S BASIC RATE OF PAY FOR THE FULL 40 HOURS, EXCLUSIVE OF THE HALF PAY, SECTION 1 (D) OF THE CIVIL SERVICE RETIREMENT ACT, 5 U.S.C. 2251 (D), DEFINING "BASIC SALARY" FROM WHICH A PERCENTAGE IS TO BE DEDUCTED FOR RETIREMENT AS BEING EXCLUSIVE OF THE OVERTIME RECEIVED IN ADDITION TO THE BASE PAY OF THE POSITION FIXED BY LAW OR REGULATION. UNDER THE WORK HOURS ACT OF 1962, WHICH AMENDED SECTION 23 OF THE ACT OF MARCH 28, 1934, TO AUTHORIZE OVERTIME COMPENSATION FOR WAGE BOARD EMPLOYEES WHO WORK IN EXCESS OF 8 HOURS PER DAY, AS WELL AS IN EXCESS OF 40 HOURS PER WEEK, THE PRACTICE IN ADMINISTERING THE 1934 ACT OF SUBSTITUTING TIME WORKED DURING HOURS OUTSIDE AN 8-HOUR TOUR OF DUTY, OR ON A DAY OUTSIDE THE SCHEDULED 40-HOUR WEEKLY TOUR OF DUTY, OR TIME LOST IN A LEAVE WITHOUT PAY STATUS DURING THAT WEEK SHOULD CONTINUE UNDER THE NEW LAW TO THE EXTENT OF APPLYING THE STRAIGHT-TIME PORTION OF THE PAY FOR OVERTIME HOURS AGAINST LEAVE WITHOUT PAY, THE CHANGE IN PROVIDING OVERTIME FOR WORK IN EXCESS OF 8 HOURS PER DAY AS WELL AS IN EXCESS OF 40 HOURS PER WEEK NOT AFFECTING THE ADMINISTRATION OF OTHER LAWS IN RELATION TO THE 40- HOUR WEEK STATUTE; THEREFORE, AN EMPLOYEE WHO DURING A 5-DAY WEEK WORKED FOUR 10-HOUR DAYS AND WAS IN A LEAVE WITHOUT PAY STATUS ON ONE DAY DURING THE WORKWEEK SHOULD HAVE HIS RETIREMENT DEDUCTIONS COMPUTED ON 40 HOURS AT HIS BASIC RATE OF PAY. FOR A WAGE BOARD EMPLOYEE DETAILED FROM A DAY TO A NIGHT SHIFT, THE "BASIC SALARY" DEFINED BY SECTION 1 (D) OF THE CIVIL SERVICE RETIREMENT ACT, 5 U.S.C. 2251 (D), FROM WHICH A PERCENTAGE IS DEDUCTED FOR RETIREMENT PURPOSES IS THE STRAIGHT-TIME NIGHT RATE PRESCRIBED FOR A REGULAR 40-HOUR WORKWEEK, EXCLUSIVE OF OVERTIME; THEREFORE, AN EMPLOYEE WHO UNDER SECTION 201 OF THE WORK HOURS ACT OF 1962, AMENDING SECTION 23 OF THE ACT OF MARCH 28, 1934, RECEIVES FOR THE TWO 10-HOUR DAYS HE WORKED, 8 HOURS AT THE NIGHT RATE AND 2 HOURS AT THE OVERTIME NIGHT RATE FOR EACH DAY, FOLLOWED BY 2 DAYS OF ANNUAL LEAVE AND 1 DAY OF LEAVE WITHOUT PAY, SHOULD HAVE HIS RETIREMENT DEDUCTIONS BASED ON A TOTAL OF 36 HOURS STRAIGHT TIME, 20 AT THE NIGHT RATE, EXCLUSIVE OF OVERTIME, AND 16 HOURS AT THE DAY RATE FOR THE ANNUAL LEAVE. IN VIEW OF THE FACT THAT IN APPLYING THE LEAVE REDUCTION PROVISIONS OF SECTION 30.204 (A) OF THE ANNUAL AND SICK LEAVE REGULATIONS, ZI-354, FPM, 5 CFR 30.204 (A), ABSENCES IN A NONPAY STATUS DURING THE BASE PAY HOURS OF THE SCHEDULED WEEKLY TOUR OF DUTY MAY NOT BE OFFSET BY WORK OUTSIDE OF THOSE HOURS DURING THE SAME WEEK, AN EMPLOYEE WHO IS IN A LEAVE WITHOUT PAY STATUS THE FIRST 2 HOURS OF A 10-HOUR DAY AND WORKS 8 HOURS A DAY OUTSIDE HIS SCHEDULED TOUR OF DUTY, DURING WHICH PERIOD HE WAS IN A LEAVE WITHOUT PAY STATUS ON 1 DAY, WAS PROPERLY CHARGED 10 HOURS LEAVE WITHOUT PAY, NOTWITHSTANDING THE HOURS WERE IN EFFECT "MADE UP" BY THE PERFORMANCE OF WORK IN EXCESS OF THE SCHEDULED DAILY WORKING HOURS OR IN EXCESS OF THE SCHEDULED WORKWEEK--- MONDAY THROUGH FRIDAY.

TO THE PUBLIC PRINTER, UNITED STATES GOVERNMENT PRINTING OFFICE, FEBRUARY 20, 1963:

YOUR LETTER OF JANUARY 15, 1963, AFTER STATING CERTAIN CONCLUSIONS YOU HAVE DRAWN FROM OUR DECISIONS OF DECEMBER 14, 1962, B-150253, 42 COMP. GEN. 309, TO YOU, AND OF OCTOBER 9, 1962, B-149986, 42 COMP. GEN. 195, TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, REQUESTS OUR DECISION ON THE QUESTIONS HEREINAFTER SET FORTH ARISING UNDER SECTION 201 OF THE WORK HOURS ACT OF 1962 (PUBLIC LAW 87-581, APPROVED AUGUST 13, 1962, 76 STAT. 360), AMENDING SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, 5 U.S.C. 673C.

YOUR FIRST QUESTION CONCERNS AN EMPLOYEE WHO WORKS A REGULAR WORKWEEK OF FOUR TEN-HOUR DAYS IN CONNECTION WITH WHICH HE IS ENTITLED UNDER PUBLIC LAW 87-581 TO STRAIGHT-TIME PAY FOR EIGHT HOURS PER DAY AND TO OVERTIME PAY OF NOT LESS THAN TIME AND ONE-HALF FOR THE TWO HOURS EACH DAY IN EXCESS OF EIGHT. YOU ASK WHETHER RETIREMENT DEDUCTIONS ARE TO BE BASED ONLY ON 32 HOURS AT THE BASIC RATE OR ON 40 HOURS AT THE BASIC RATE.

SECTION 1 (D) OF THE CIVIL SERVICE RETIREMENT ACT, 70 STAT. 743, 5U.S.C. 2251 (D), DEFINES ,BASIC SALARY" (FROM WHICH A PERCENTAGE IS TO BE DEDUCTED FOR RETIREMENT) AS BEING EXCLUSIVE OF, AMONG OTHER THINGS, OVERTIME PAY GIVEN IN ADDITION TO THE BASE PAY OF THE POSITION AS FIXED BY LAW OR REGULATION. IN OUR DECISION OF OCTOBER 9, 1962, ABOVE, WE CONCURRED IN THE PROPOSAL TO RETAIN THE BASIC 40-HOUR WORKWEEK FOR RETIREMENT PURPOSES BUT TO EXCLUDE FROM RETIREMENT DEDUCTIONS THE ADDITIONAL HALF PAY WHICH IS PAYABLE FOR WORK IN EXCESS OF EIGHT HOURS ON ANY DAY WITHIN THE 40-HOUR WORKWEEK. IN LINE THEREWITH, RETIREMENT DEDUCTIONS IN THE EXAMPLE GIVEN SHOULD BE COMPUTED ON THE BASIC RATE FOR THE FULL 40 HOURS, EXCLUSIVE OF THE HALF PAY, AND NOT MERELY ON THE 32 HOURS FOR WHICH THE BASIC RATE, ONLY, IS PAID.

YOU SAY THAT IT WILL BE NECESSARY TO MAKE PAY ADJUSTMENTS FOR SOME EMPLOYEES RETROACTIVELY FROM OCTOBER 12, 1962 (THE EFFECTIVE DATE OF PUBLIC LAW 87-581), TO DATE, AND YOU REQUEST TO BE ADVISED WHETHER AN ADJUSTMENT OF RETIREMENT DEDUCTIONS WILL BE REQUIRED IN THE CASES SET FORTH BELOW.

THE CASE DESIGNATED AS "1" AND THE RELATED QUESTIONS ARE AS FOLLOWS:

AN EMPLOYEE WORKED THE FOLLOWING WORK SCHEDULE DURING THE WEEK: MONDAY, 10 HOURS; TUESDAY, 10 HOURS; WEDNESDAY, LEAVE WITHOUT PAY; THURSDAY, 10 HOURS; AND FRIDAY, 10 HOURS. UNDER THE OLD 40-HOUR BASIS, THE EMPLOYEE WAS PAID FOR 10 HOURS STRAIGHT TIME FOR MONDAY, TUESDAY, THURSDAY AND FRIDAY; A TOTAL OF 40 HOURS AT STRAIGHT TIME OR REGULAR RATE AND RETIREMENT DEDUCTIONS WERE MADE ON A BASIS OF 6 1/2 PERCENT OF THE GROSS AMOUNT DUE FOR SUCH PAY AT BASIC RATE. ASSUMING THAT THIS EMPLOYEE WAS PAID $2.00 AN HOUR AND HIS BASIC PAY FOR THE WEEK WAS $80.00 (40 HOURS TIMES $2.00), THE RETIREMENT DEDUCTION WAS MADE FOR $5.20. UNDER THE PROVISION OF P.L. 87-581, IT APPEARS TO US THAT THE EMPLOYEE IS ENTITLED TO BE PAID 8 HOURS AT THE BASIC RATE AND 2 HOURS AT THE OVERTIME RATE FOR MONDAY, 8 HOURS AT THE BASIC RATE AND 2 HOURS AT THE OVERTIME RATE FOR TUESDAY, NOTHING FOR WEDNESDAY, 8 HOURS AT THE BASIC RATE AND 2 HOURS AT THE OVERTIME RATE FOR THURSDAY, AND 8 HOURS AT THE BASIC RATE AND 2 HOURS AT THE OVERTIME RATE FOR FRIDAY. THIS AMOUNTS TO A TOTAL OF 32 HOURS AT BASIC RATE AND 8 HOURS AT THE OVERTIME RATE (32 TIMES $2.00 EQUALS $64.00 PLUS 8 TIMES $3.00 EQUALS $24.00 FOR A TOTAL OF $88.00). HOW SHOULD RETIREMENT DEDUCTION BE COMPUTED?

A. 6 1/2 PERCENT OF $64.00 (32 HOURS TIMES BASIC RATE OF $2.00) OR

B. 6 1/2 PERCENT OF $80.00 (40 HOURS TIMES BASIC RATE OF $2.00)

UNDER SECTION 23 OF THE ACT OF MARCH 28, 1934, PRIOR TO ITS AMENDMENT BY PUBLIC LAW 87-581, TIME WORKED DURING HOURS OUTSIDE OF A SCHEDULED DAILY EIGHT-HOUR TOUR OF DUTY OR ON A DAY OUTSIDE THE SCHEDULED 40-HOUR WEEKLY TOUR OF DUTY WAS PAID FOR AT THE STRAIGHT-TIME RATE TO THE EXTENT NECESSARY TO MAKE UP FOR TIME LOST IN A LEAVE WITHOUT PAY STATUS DURING THE SCHEDULED 40-HOUR WEEK (21 COMP. GEN. 217, 223); AND IT WAS THE PRACTICE FOR RETIREMENT DEDUCTIONS TO BE MADE FROM SUCH STRAIGHT-TIME PAY. CF. 25 COMP. GEN. 102, 117. WE DO NOT BELIEVE THAT IT WAS THE INTENTION OF CONGRESS IN AMENDING THE 1934 STATUTE--- TO PROVIDE FOR PAYMENT OF OVERTIME COMPENSATION FOR WORK IN EXCESS OF EIGHT HOURS PER DAY AS WELL AS IN EXCESS OF 40 HOURS PER WEEK--- TO EFFECT ANY CHANGES IN THE RULES HERETOFORE EVOLVED FOR THE PURPOSE OF ADMINISTERING OTHER LAWS IN RELATION TO THE 40-HOUR WEEK STATUTE, OTHER THAN SUCH CHANGES AS MAY BE NECESSARY TO APPLY THE NEW REQUIREMENT FOR DAILY OVERTIME. ACCORDINGLY, THE PRACTICE OF SUBSTITUTING TIME IN EXCESS OF EIGHT HOURS PER DAY FOR TIME LOST IN A LEAVE WITHOUT PAY STATUS DURING THE SAME WEEK FOR PURPOSES OF RETIREMENT DEDUCTIONS SHOULD CONTINUE UNDER THE NEW LAW TO THE EXTENT OF APPLYING THE STRAIGHT-TIME PORTION OF THE PAY FOR OVERTIME HOURS AGAINST LEAVE WITHOUT PAY. METHOD "B" SHOULD BE USED IN COMPUTING RETIREMENT DEDUCTIONS IN CASE NO. 1.

IN THE PRELIMINARY DISCUSSION OF THE CASE DESIGNATED AS "2" YOU REFER TO OUR DECISION IN 23 COMP. GEN. 962, HOLDING THAT THE NIGHT RATE OF PAY PRESCRIBED FOR EMPLOYEES ASSIGNED TO A REGULAR 40-HOUR WEEKLY TOUR OF DUTY AT NIGHT IS BASIC COMPENSATION UPON WHICH OVERTIME COMPENSATION UNDER THE 1934 ACT IS TO BE COMPUTED. YOU ALSO REFER TO THE PROVISIONS OF YOUR ADMINISTRATIVE ORDERS THAT DAY SHIFT EMPLOYEES WHO ARE DETAILED TO A NIGHT SHIFT ARE ENTITLED TO BE PAID THE NIGHT RATE FOR THE NUMBER OF HOURS WORKED ON THE NIGHT SHIFT; AND THAT SUCH DETAILED EMPLOYEES WHO TAKE ANNUAL OR SICK LEAVE WITH PAY WHILE SO DETAILED ARE PAID THEIR BASIC OR DAY RATE. THE CASE DESIGNATED AS "2" AND THE RELATED QUESTIONS ARE AS FOLLOWS:

A DAY EMPLOYEE DETAILED TO THE NIGHT SHIFT WORKED THE FOLLOWING SCHEDULE: MONDAY, 10 HOURS; TUESDAY, 10 HOURS; WEDNESDAY, 8 HOURS ANNUAL LEAVE; THURSDAY, 8 HOURS ANNUAL LEAVE; AND FRIDAY, 8 HOURS LEAVE WITHOUT PAY. UNDER THE OLD 40-HOUR LAW AND OUR REGULATIONS, THE EMPLOYEE WAS PAID MONDAY, 10 HOURS STRAIGHT TIME AT NIGHT RATE; TUESDAY, 10 HOURS STRAIGHT TIME AT NIGHT RATE; WEDNESDAY, 8 HOURS AT DAY RATE (ANNUAL LEAVE); THURSDAY, 8 HOURS AT DAY RATE (ANNUAL LEAVE); AND FRIDAY, 10 HOURS (LEAVE WITHOUT PAY), OR A TOTAL OF 36 HOURS AT STRAIGHT TIME FOR WHICH HE RECEIVED 20 HOURS AT NIGHT RATE AND 16 HOURS AT DAY RATE. RETIREMENT DEDUCTIONS WERE MADE FROM THE PAY WHICH INVOLVED THE 36 HOURS. ACCORDANCE WITH THE PROVISIONS OF P.L. 87 581, EFFECTIVE OCTOBER 12, 1962, THE EMPLOYEE IS ENTITLED TO BE PAID MONDAY, 8 HOURS NIGHT RATE AND 2 HOURS OVERTIME AT THE NIGHT RATE; TUESDAY, 8 HOURS NIGHT RATE AND 2 HOURS AT THE NIGHT OVERTIME RATE; WEDNESDAY, 8 HOURS DAY RATE; THURSDAY, 8 HOURS DAY RATE; AND FRIDAY, NO PAY. THIS REPRESENTS A TOTAL OF 16 HOURS NIGHT RATE, 4 HOURS NIGHT OVERTIME RATE, AND 16 HOURS DAY RATE. ASSUMING THE EMPLOYEE'S RATE OF PAY WAS $2.00 PER HOUR DAY RATE AND $2.30 PER HOUR NIGHT RATE, WHAT RETIREMENT DEDUCTIONS SHOULD BE MADE IN THIS CASE?

A. 6 1/2 PERCENT OF $68.80 (16 HOURS AT 2.30 - NIGHT RATE PLUS 16

HOURS AT 2.00 - DAY RATE), OR

B. 6 1/2 PERCENT $78.00 (20 HOURS AT 2.30 - NIGHT RATE PLUS 16

HOURS AT 2.00 - DAY RATE)

WE SEE NO REASON WHY THE RATIONALE OF THE HOLDING UNDER CASE NO. 1 SHOULD NOT BE APPLIED HERE, USING THE STRAIGHT-TIME NIGHT RATE PRESCRIBED FOR THE REGULAR 40-HOUR WEEK--- WHICH, AS HELD IN THE DECISION CITED ABOVE, IS BASIC PAY--- IN PLACE OF THE DAY RATE INVOLVED IN THAT CASE. THEREFORE, ASIDE FROM THE QUESTION RAISED BELOW AS TO THE RATE PAYABLE FOR ANNUAL LEAVE, METHOD B" SHOULD BE USED IN COMPUTING RETIREMENT DEDUCTIONS.

WE DO NOT FIND THAT WE HAVE HERETOFORE RULED UPON THE MATTER OF THE PROPER RATE OF PAY FOR ANNUAL AND SICK LEAVE GRANTED EMPLOYEES WHILE DETAILED FROM A DAY SHIFT TO A NIGHT SHIFT, OR VICE VERSA. IN THE ABSENCE OF A DETAILED PRESENTATION, AND SINCE WE UNDERSTAND THIS MATTER IS BEING DISCUSSED WITH OUR AUDIT STAFF, WE EXPRESS NO OPINION AT THIS TIME CONCERNING THE PROPRIETY OF YOUR PRACTICE IN THAT REGARD.

THE CASE DESIGNATED AS "3" AND THE RELATED QUESTIONS ARE PRESENTED AS FOLLOWS:

AN EMPLOYEE WORKS: MONDAY, 10 HOURS (8 HOURS BASIC RATE AND 2 HOURS OVERTIME RATE); TUESDAY, 2 HOURS LEAVE WITHOUT PAY AT THE BEGINNING OF THE DAY AND 8 HOURS BASIC RATE; WEDNESDAY, 8 HOURS LEAVE WITHOUT PAY; THURSDAY, 8 HOURS BASIC RATE; FRIDAY, 8 HOURS BASIC RATE; AND SATURDAY, 8 HOURS BASIC RATE.

A. ARE THE 2 HOURS LEAVE WITHOUT PAY ON TUESDAY RECORDED AT THE BEGINNING OF THE TUESDAY WORKDAY USED FOR LEAVE CREDIT REDUCTION PURPOSES AS REQUIRED BY SECTION 30.204 OF THE CIVIL SERVICE ANNUAL AND SICK LEAVE REGULATIONS (L-1-25 F.P.M./?

B. WOULD THE 8 HOURS WORKED ON SATURDAY AFFECT THE LEAVE CREDIT REDUCTION REGULATIONS (L-1-25 F.P.M./?

SECTION 30.204 (A) OF THE ANNUAL AND SICK LEAVE REGULATIONS, Z1 354, FPM, 5 CFR 30.204 (A), PROVIDES IN PERTINENT PART AS FOLLOWS: WHENEVER A FULL- TIME EMPLOYEE'S ABSENCE IN A NONPAY STATUS WITHIN A LEAVE YEAR TOTALS THE EQUIVALENT OF THE BASE PAY HOURS IN ONE PAY PERIOD, THE CREDITS FOR SICK LEAVE SHALL BE REDUCED 1/2 DAY, AND THE CREDITS FOR ANNUAL LEAVE SHALL BE REDUCED 1/2 DAY, 3/4 DAY, OR 1 DAY ACCORDING TO THE EMPLOYEE'S LEAVE- EARNING CATEGORY * * *.

IT IS IMPLICIT IN THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 2061, ET SEQ., AND THE REGULATIONS PROMULGATED THEREUNDER THAT THE LEAVE SYSTEM ESTABLISHED THEREBY IS TO BE ADMINISTERED ESSENTIALLY UPON THE BASIS OF PRESCRIBED BASE PAY HOURS. OUR VIEW IS THAT FOR PURPOSES OF APPLYING THE LEAVE REDUCTION PROVISIONS OF THE REGULATIONS, ABSENCE IN A NONPAY STATUS DURING THE WEEKLY TOUR OF DUTY PRESCRIBED FOR THE EMPLOYEE MAY NOT BE OFFSET BY WORK OUTSIDE OF THOSE HOURS DURING THE SAME WEEK. THAT IS TO SAY, WHEN THE EMPLOYEE HAD BEEN ABSENT IN A NONPAY STATUS DURING HIS BASE PAY HOURS, THAT FACT WAS NOT CHANGED BY THE PERFORMANCE OF WORK OUTSIDE OF THOSE HOURS. WE HOLD, THEREFORE, THAT THE TWO HOURS OF LEAVE WITHOUT PAY RECORDED FOR TUESDAY, AS WELL AS THE EIGHT HOURS FOR WEDNESDAY, SHOULD CONTINUE AS A CHARGE TO LEAVE WITHOUT PAY, NOTWITHSTANDING SUCH HOURS WERE IN EFFECT "MADE UP" BY THE PERFORMANCE OF WORK IN EXCESS OF THE SCHEDULED DAILY WORKING HOURS OR IN EXCESS OF THE SCHEDULED WORKWEEK--- MONDAY THROUGH FRIDAY. YOUR QUESTIONS A AND B UNDER CASE NO. 3 ARE ANSWERED ACCORDINGLY.