B-164515, OCT 9, 1970, 50 COMP GEN 266

B-164515, OCT 9, 1970, 50 COMP GEN 266

COMPENSATION - WAGE BOARD EMPLOYEES - INCREASES - RETROACTIVE - SEPARATED EMPLOYEES WAGE BOARD EMPLOYEES WHO ARE NO LONGER ON GOVERNMENT ROLLS WHEN REGULATIONS ISSUE TO IMPLEMENT THE MONRONEY AMENDMENT, PUBLIC LAW 90 560, APPROVED OCTOBER 12, 1968, 5 U.S.C. 5341(C), WHICH AUTHORIZES EQUATING FEDERAL WAGE BOARD EMPLOYEES HAVING SPECIAL SKILLS WITH COMPARABLE POSITIONS IN PRIVATE ENTERPRISE IN WAGE SURVEY AREAS OUTSIDE THE LOCAL WAGE SURVEY AREA, ARE ENTITLED TO A RETROACTIVE WAGE ADJUSTMENT ON THE BASIS THE ACTION IS CORRECTIVE AND REQUIRED BY THE ACT, RATHER THAN THE GRANT OF A WAGE INCREASE WITHIN THE MEANING OF 5 U.S.C. 5344, AND THE RETROACTIVE WAGE INCREASES SHOULD BE VIEWED AS THE PROPER SALARY RATES OF THE EMPLOYEES FOR THE PURPOSES OF SEPARATION. IF THE WHEREABOUTS OF A FORMER EMPLOYEE IS UNKNOWN, NOTIFICATION OF ENTITLEMENT SHOULD BE SENT TO HIS LAST KNOWN ADDRESS; AND IF THE EMPLOYEE HAS DIED, THE NOTICE SHOULD BE MAILED TO THE LAST KNOWN ADDRESS OF HIS WIDOW.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 9, 1970:

THIS IS IN REFERENCE TO YOUR LETTER OF AUGUST 5, 1970, REQUESTING A DECISION CONCERNING FORMER EMPLOYEES' ENTITLEMENT TO RETROACTIVE PAY UNDER PAY SCHEDULES ADJUSTED IN ACCORDANCE WITH SECTION 5341(C) OF TITLE 5, UNITED STATES CODE.

SUBSECTION (C) OF SECTION 5341 OF TITLE 5, U.S.C. KNOWN AS THE MONRONEY AMENDMENT, WAS ADDED BY PUBLIC LAW 90-560, APPROVED OCTOBER 12, 1968, 82 STAT. 997, AND AUTHORIZES A PROCEDURE WHEREBY SPECIAL SKILLS FOR UNUSUAL JOB REQUIREMENTS APPLICABLE TO FEDERAL WAGE BOARD EMPLOYEES IN A PARTICULAR WAGE SURVEY AREA WHICH ARE NOT FOUND IN LOCAL PRIVATE ENTERPRISE IN THAT AREA, CAN BE EVALUATED OR EQUATED WITH COMPARABLE POSITIONS IN PRIVATE ENTERPRISE IN WAGE SURVEY OUTSIDE THE LOCAL WAGE SURVEY AREA.

IT IS STATED IN YOUR LETTER THAT ON JULY 14, 1970, THE CIVIL SERVICE COMMISSION ISSUED ITS REGULATIONS IMPLEMENTING SECTION 5341(C), SUPRA, AND THESE REGULATIONS APPLY TO ALL SURVEYS ORDERED OR IN PROCESS ON OR AFTER OCTOBER 12, 1968, INCLUDING A SURVEY ORDERED BUT FOR WHICH RESULTING PAY SCHEDULES HAD NOT BEEN PUT INTO EFFECT BY OCTOBER 12, 1968.

THE EFFECT OF THIS LAW AS TO RETROACTIVE ADJUSTMENT OF PAY SCHEDULES AND THE QUESTION RAISED, ARE SET FORTH IN YOUR LETTER AS FOLLOWS:

BECAUSE APPLICATION OF THE LAW WILL REQUIRE RETROACTIVE ADJUSTMENT OF PAY SCHEDULES ISSUED AFTER OCTOBER 12, 1968, THERE IS NO QUESTION THAT EACH EMPLOYEE ON THE AGENCY'S ROLLS ON THE DATE THE ADJUSTED PAY SCHEDULE IS ISSUED WILL BE ENTITLED TO HAVE HIS PAY ADJUSTED RETROACTIVELY BACK TO THE EFFECTIVE DATE OF THE ADJUSTED SCHEDULE TO THE EXTENT THAT HE WAS SUBJECT TO THE WAGE SCHEDULE DURING THE RETROACTIVE PERIOD ON THE BASIS THAT THE ADJUSTED SCHEDULE WAS THE ONLY LEGAL SCHEDULE IN EXISTENCE DURING THIS PERIOD.

HOWEVER, FOR FORMER EMPLOYEES WHO WOULD HAVE BEEN ENTITLED TO RETROACTIVE PAYMENT IF THEY HAD BEEN ON THE AGENCY'S ROLLS ON THE DATE OF ISSUANCE OF THE ADJUSTED SCHEDULE, THE QUESTION IS RAISED AS TO THEIR ENTITLEMENT TO RETROACTIVE PAY UNDER THE ADJUSTED SCHEDULES. ***

WE HAVE BEEN ADVISED THAT WAGE SCHEDULES HAVE BEEN ISSUED SUBSEQUENT TO OCTOBER 12, 1968, BASED UPON WAGE SURVEYS ORDERED OR IN PROCESS ON OR AFTER THAT DATE. SUCH WAGE SCHEDULES, HOWEVER, WERE ISSUED WITHOUT INCLUDING THEREIN THE ELEMENTS REQUIRED BY 5 U.S.C.A. 5341(C). APPARENTLY, SUCH ELEMENTS WERE NOT INCLUDED BECAUSE OF THE NECESSITY TO RESOLVE THE MANNER IN WHICH THEY WERE TO BE APPLIED. IT IS THE INCREASES RESULTING FROM THE UTILIZATION OF WAGE SCALES IN OTHER AREAS AS REQUIRED BY 5 U.S.C.A. 5341(C) THAT GIVE RISE TO THE QUESTIONS HERE INVOLVED. THE QUESTION AS TO WHETHER FORMER EMPLOYEES ARE ENTITLED TO RETROACTIVE PAY UNDER THE ADJUSTED SCHEDULE BECOMES PARTICULARLY SIGNIFICANT, YOU SAY, IN VIEW OF THE VERY LONG RETROACTIVE PERIOD AND THE LARGE NUMBER OF EMPLOYEES WHO HAVE BEEN SEPARATED DURING THIS PERIOD BECAUSE OF REDUCTIONS IN FORCE. IT IS POINTED OUT IN YOUR LETTER THAT SECTION 5344 OF TITLE 5, U.S.C. SETS OUT WHICH EMPLOYEES ARE ENTITLED TO RETROACTIVE PAYMENT "BY REASON OF AN INCREASE IN RATES OF BASIC PAY" AS REFERRED TO IN 5 U.S.C. 5343. HOWEVER, YOU DO NOT BELIEVE THAT THIS STATUTE IS APPLICABLE SINCE WHAT IS INVOLVED HERE IS NOT A DELAY WITH REGARD TO A NORMAL INCREASE IN BASIC PAY BUT A DELAY IN THE APPLICATION OF A DIFFERENT STATUTE WHICH REQUIRES THE ISSUANCE OF AN ADJUSTED SCHEDULE. THE VIEW IS THEREFORE EXPRESSED THAT IT WOULD APPEAR THAT EACH FORMER EMPLOYEE WHO WAS ENTITLED TO PAY UNDER THE ORIGINAL WAGE SCHEDULE WOULD BE ENTITLED TO RETROACTIVE PAY UNDER THE ADJUSTED WAGE SCHEDULE. OUR VIEWS ARE REQUESTED ON THE FOLLOWING QUESTIONS:

IS THERE ANY OBJECTION TO ALLOWING RETROACTIVE PAY TO ALL FORMER EMPLOYEES WHO WERE ENTITLED TO PAY UNDER AN ORIGINAL WAGE SCHEDULE WHEN THAT ORIGINAL WAGE SCHEDULE IS ADJUSTED UPWARD BY THE ISSUANCE OF THE FIRST WAGE SCHEDULE UNDER 5 U.S.C. 5341(C)?

IF THERE IS AN OBJECTION TO FULL RETROACTIVE PAY AS REFERRED TO IN QUESTION 1, WHAT FORMER EMPLOYEES ARE ENTITLED TO RETROACTIVE PAY BY THE ISSUANCE OF THE FIRST WAGE SCHEDULE UNDER 5 U.S.C. 5341(C)? WE ARE, IN THIS REGARD, CONCERNED OVER DISTINCTIONS IN THE CAUSE FOR THE FORMER EMPLOYEE'S SEPARATION, I.E., SEPARATED TO ENTER THE ARMED FORCES, SEPARATED BY TRANSFER TO ANOTHER FEDERAL OR DISTRICT OF COLUMBIA GOVERNMENT AGENCY, SEPARATED BY REDUCTION IN FORCE OR DEATH, OR SEPARATED BY RESIGNATION.

3. WHAT OBLIGATION DOES THE AGENCY OWE TO TRACE FORMER EMPLOYEES SO AS TO PAY THEM THE RETROACTIVE AMOUNT DETERMINED TO BE DUE? IS THE AGENCY REQUIRED TO DO MORE THAN SEND A NOTICE OF ENTITLEMENT TO THE FORMER EMPLOYEES' LAST KNOWN ADDRESS WHEN HIS EXACT WHEREABOUTS IS UNKNOWN, OR WHEN IT IS KNOWN THAT HE HAS DIED, TO HIS WIDOW'S LAST KNOWN ADDRESS?

SECTIONS 5343 AND 5344 OF TITLE 5, U.S.C. ARE AS FOLLOW:

SEC 5343. EFFECTIVE DATE OF PAY INCREASE

EACH INCREASE IN RATES OF BASIC PAY GRANTED, PURSUANT TO A WAGE SURVEY, TO EMPLOYEES WHOSE PAY IS FIXED AND ADJUSTED UNDER SECTION 5341 OF THIS TITLE IS EFFECTIVE AS FOLLOWS:

(1) IF THE WAGE SURVEY IS MADE BY AN AGENCY, EITHER ALONE OR WITH ANOTHER AGENCY, WITH RESPECT TO ITS OWN EMPLOYEES, THE INCREASE IS EFFECTIVE FOR ITS EMPLOYEES NOT LATER THAN THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS AFTER THE 44TH DAY, EXCLUDING SATURDAYS AND SUNDAYS, FOLLOWING THE DATE ON WHICH THE WAGE SURVEY WAS ORDERED TO BE MADE.

(2) IF THE WAGE SURVEY IS MADE BY AN AGENCY, EITHER ALONE OR WITH ANOTHER AGENCY, AND IS USED BY AN AGENCY WHICH DID NOT PARTICIPATE IN MAKING THE SURVEY, THE INCREASE IS EFFECTIVE FOR THE EMPLOYEES OF THE AGENCY WHICH DID NOT PARTICIPATE IN THE SURVEY NOT LATER THAN THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGIN AFTER THE 19TH DAY, EXCLUDING SATURDAYS AND SUNDAYS, FOLLOWING THE DATE ON WHICH THE AGENCY WHICH DID NOT PARTICIPATE RECEIVES THE DATA COLLECTED IN THE SURVEY NECESSARY FOR THE GRANTING OF THE INCREASE.

SEC 5344. RETROACTIVE PAY

(A) RETROACTIVE PAY IS PAYABLE BY REASON OF AN INCREASE IN RATES OF BASIC PAY REFERRED TO IN SECTION 5343 OF THIS TITLE ONLY WHEN -

(1) THE INDIVIDUAL IS IN THE SERVICE OF THE UNITED STATES, INCLUDING SERVICE IN THE ARMED FORCES, OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA ON THE DATE OF THE ISSUANCE OF THE ORDER GRANTING THE INCREASE; OR

(2) THE INDIVIDUAL RETIRED OR DIED DURING THE PERIOD BEGINNING ON THE EFFECTIVE DATE OF THE INCREASE AND ENDING ON THE DATE OF ISSUANCE OF THE ORDER GRANTING THE INCREASE, AND ONLY FOR SERVICES PERFORMED DURING THAT PERIOD.

THE ABOVE SECTION WOULD PRECLUDE PAYMENT TO FORMER EMPLOYEES IF AN ADJUSTMENT OF WAGE SCHEDULES (SCHEDULES ISSUED ON THE BASIS OF SURVEYS ORDERED OR IN PROCESS ON OR SUBSEQUENT TO, BUT WITHOUT REGARD TO, PUBLIC LAW 90-560) TO NOW MEET THE REQUIREMENTS OF PUBLIC LAW 90-560 IS VIEWED AS AN "ORDER GRANTING THE INCREASE" SINCE THE DATE THE ADJUSTMENT WAS ORDERED WOULD BE DETERMINATIVE. WE DO NOT BELIEVE, HOWEVER, THAT AN ADJUSTMENT REQUIRED TO MEET THE NEW STATUTORY PROCEDURES SHOULD BE SO VIEWED. THE ORIGINAL WAGE SCHEDULES WERE NOT IN ACCORDANCE WITH PUBLIC LAW 90-560, AND THEREFORE EMPLOYEES THEN ON THE ROLLS WERE IN SOME INSTANCES NOT BEING PROPERLY COMPENSATED UNDER THE LAW. IN SUCH CIRCUMSTANCES AN INCREASE IN PAY OF THE POSITION IS TO BE REGARDED AS A CORRECTION REQUIRED BY PUBLIC LAW 90-560, RATHER THAN AS AN ORDER GRANTING AN INCREASE IN PAY WITHIN THE MEANING OF 5 U.S.C. 5344. THUS, SUCH CORRECTION WOULD RELATE BACK TO THE DATE ON AND AFTER OCTOBER 12, 1968, OF AN ORDER GRANTING A GENERAL INCREASE IN PAY PURSUANT TO A WAGE SURVEY. IT FOLLOWS THAT EACH FORMER EMPLOYEE WHO WAS ON THE ROLLS ON THE DATE OF SUCH ORIGINAL ORDER WOULD BE ENTITLED TO RETROACTIVE PAY. THE RETROACTIVE PAY INCREASES TO WHICH THE FORMER EMPLOYEES ARE ENTITLED SHOULD BE VIEWED AS THE SALARY RATES FOR ALL PURPOSES AT THE TIME OF THEIR SEPARATION FROM THE SERVICE. SEE B-168346, DECEMBER 30, 1969.

IN VIEW OF THE FOREGOING, QUESTION NO. 1 IS ANSWERED IN THE NEGATIVE. REASON OF THAT ANSWER, QUESTION NO. 2 DOES NOT APPEAR TO REQUIRE AN ANSWER. WITH REGARD TO QUESTION NO. 3, THE SENDING OF A NOTICE OF ENTITLEMENT TO THE FORMER EMPLOYEE'S LAST KNOWN ADDRESS WHEN HIS EXACT WHEREABOUTS IS UNKNOWN, OR WHEN IT IS KNOWN THAT HE HAS DIED, TO HIS WIDOW'S LAST KNOWN ADDRESS, WILL SUFFICE INSOFAR AS NOTIFICATION OF THE RETROACTIVE PAY. SEE, IN THIS CONNECTION, B-115800, DECEMBER 8, 1964.