B-104780, JANUARY 21, 1952, 31 COMP. GEN. 316

B-104780: Jan 21, 1952

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OF WHICH THE EMPLOYEES HAVE PRIOR NOTICE. WHO FAIL TO WORK ON A SCHEDULED WORKDAY ARE CONSIDERED UNDER CIVIL SERVICE COMMISSION REGULATIONS PRESCRIBING WAITING PERIOD REQUIREMENTS FOR WITHIN-GRADE SALARY ADVANCEMENTS TO BE IN A LEAVE WITHOUT PAY STATUS SO THAT. THE PERIOD MUST BE EXTENDED BY THE NUMBER OF WORKDAYS WITHOUT PAY IN EXCESS OF TWO WEEKS BEFORE THE EMPLOYEE IS ENTITLED TO THE WITHIN- GRADE ADVANCEMENT. 1952: REFERENCE IS MADE TO YOUR LETTER OF JULY 19. TO CERTAIN WAE EMPLOYEES OF THE BUREAU OF CUSTOMS WHO ARE PAID AT AN HOURLY RATE BASED UPON SALARY SCHEDULES IN THE CLASSIFICATION ACT OF 1949. WHOSE ASSIGNMENT IS SUBJECT TO CHANGE SO THAT DURING ONE WEEK HE MAY WORK SUFFICIENT HOURS TO REQUIRE THE PAYMENT OF OVERTIME UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1949.

B-104780, JANUARY 21, 1952, 31 COMP. GEN. 316

COMPENSATION - WITHIN-GRADE SALARY ADVANCEMENTS - REGULAR PART-TIME EMPLOYEES - WAITING PERIOD REQUIREMENTS THE TERM "REGULAR PART-TIME EMPLOYEES" AS USED IN CIVIL SERVICE COMMISSION REGULATIONS, PROMULGATED PURSUANT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, PRESCRIBING THE WAITING PERIOD REQUIREMENTS FOR WITHIN- GRADE SALARY ADVANCES FOR SUCH EMPLOYEES, INCLUDES ONLY THOSE PERMANENT PART-TIME EMPLOYEES WHO SERVE IN A REGULAR WORKWEEK TOUR OF DUTY, ADMINISTRATIVELY SCHEDULED IN ADVANCE, OF WHICH THE EMPLOYEES HAVE PRIOR NOTICE. REGULAR PART-TIME EMPLOYEES, NOT ON AUTHORIZED LEAVE, WHO FAIL TO WORK ON A SCHEDULED WORKDAY ARE CONSIDERED UNDER CIVIL SERVICE COMMISSION REGULATIONS PRESCRIBING WAITING PERIOD REQUIREMENTS FOR WITHIN-GRADE SALARY ADVANCEMENTS TO BE IN A LEAVE WITHOUT PAY STATUS SO THAT, WHERE SUCH AN ABSENCE EXCEEDS TWO WEEKS IN ANY REQUIRED PERIOD FOR A SALARY STEP INCREASE, THE PERIOD MUST BE EXTENDED BY THE NUMBER OF WORKDAYS WITHOUT PAY IN EXCESS OF TWO WEEKS BEFORE THE EMPLOYEE IS ENTITLED TO THE WITHIN- GRADE ADVANCEMENT.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, JANUARY 21, 1952:

REFERENCE IS MADE TO YOUR LETTER OF JULY 19, 1951, REQUESTING DECISION WITH RESPECT TO THE APPLICATION OF THE CIVIL SERVICE REGULATION, SECTION 25.11 (E), 21, PAGE 314, OF THE FEDERAL PERSONNEL MANUAL, INFRA, TO CERTAIN WAE EMPLOYEES OF THE BUREAU OF CUSTOMS WHO ARE PAID AT AN HOURLY RATE BASED UPON SALARY SCHEDULES IN THE CLASSIFICATION ACT OF 1949, DESCRIBED IN YOUR LETTER AS FOLLOWS:

1. EMPLOYEES APPOINTED UNDER THE PROVISIONS OF SECTION 6.101 (G) OF THE CIVIL SERVICE REGULATIONS MAY BE SCHEDULED TO PERFORM SERVICES BETWEEN SPECIFIED HOURS DURING EACH OF 5 DAYS PER WEEK AS FOR EXAMPLE, 3 P.M. TO 6 P.M., MONDAY THROUGH FRIDAY.

2. EMPLOYEES APPOINTED UNDER THE PROVISIONS OF SECTION 6.101 (G) MAY BE SCHEDULED TO PERFORM SERVICES BETWEEN SPECIFIED HOURS ON LESS THAN 5 SPECIFIED DAYS PER WEEK AS FOR EXAMPLE, 1 P.M. TO 4 P.M., MONDAY, WEDNESDAY, AND FRIDAY.

3. EMPLOYEES WHO USUALLY WORK BETWEEN CERTAIN SPECIFIED HOURS DURING 5 OR 6 DAYS PER WEEK BUT WHOSE ASSIGNMENT MAY BE CHANGED AT ANY TIME TO MEET EXISTING CONDITIONS AS FOR EXAMPLE, AN EMPLOYEE USUALLY WORKING FROM 3 P.M. TO 6 P.M. AT ONE FACTORY AND FROM 6:30 A.M. TO 9 A.M. AT ANOTHER FACTORY, MONDAY THROUGH FRIDAY, BUT WHOSE ASSIGNMENT IS SUBJECT TO CHANGE SO THAT DURING ONE WEEK HE MAY WORK SUFFICIENT HOURS TO REQUIRE THE PAYMENT OF OVERTIME UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1949, WHILE DURING ANOTHER WEEK HE WILL PERFORM NO WORK AT ALL OR WILL WORK ONLY ON A FEW OF THE USUAL DAYS.

4. EMPLOYEES MAY BE ASSIGNED TO A VARIABLE SCHEDULE AS FOR EXAMPLE, MONDAY, WEDNESDAY, FRIDAY, 8 A.M. TO 12 NOON AND 2 P.M. TO 4 P.M., AND TUESDAY AND THURSDAY, 8 A.M. TO 12 NOON.

5. EMPLOYEES MAY BE ASSIGNED TO AN "ON CALL SCHEDULE" WHICH MAY VARY FROM DAY TO DAY AND FROM WEEK TO WEEK AS FOR EXAMPLE, ON THE FIRST WEEK THE "SCHEDULE" WORKED WAS MONDAY, 3 P.M. TO 6 P.M., TUESDAY THROUGH FRIDAY, 2 P.M. TO 4 P.M., AND SATURDAY, 3 P.M. TO 6 P.M.; THE NEXT WEEK THE ,SCHEDULE" WORKED WAS MONDAY THROUGH THURSDAY, 1 P.M. TO 2 P.M. AND FRIDAY, 3 P.M. TO 6 P.M.; AND ON THE THIRD WEEK AND SUBSEQUENT WEEKS STILL OTHER "SCHEDULES" WERE WORKED.

THE REFERRED-TO REGULATION PROVIDES AS FOLLOWS:

25.11 (E) WAITING PERIOD IS THE MINIMUM TIME REQUIREMENT OF CREDITABLE SERVICE WITHOUT AN EQUIVALENT INCREASE IN COMPENSATION IN ORDER TO BE ELIGIBLE FOR CONSIDERATION FOR A PERIODIC STEP-INCREASE. THE WAITING PERIOD FOR EITHER FULL-TIME OR REGULAR PART-TIME EMPLOYEES IS 52 CALENDAR WEEKS FOR GRADES WITH STEP-INCREASES OF LESS THAN $200, AND 78 CALENDAR WEEKS FOR GRADES WITH STEP-INCREASES OF $200 OR MORE. (A CALENDAR WEEK IS A TOTAL OF ANY 7 CALENDAR DAYS BEFORE, BEGINNING WITH, OR AFTER A SPECIFIED DAY.) CREDITABLE SERVICE IN THE COMPUTATION OF WAITING PERIODS INCLUDES:

(1) CONTINUOUS PAID CIVILIAN EMPLOYMENT IN ANY BRANCH (EXECUTIVE, LEGISLATIVE, OR JUDICIAL) OF THE FEDERAL GOVERNMENT, OR IN THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, INCLUDING ADVANCE ANNUAL OR SICK LEAVE, AND SERVICE UNDER A TEMPORARY APPOINTMENT OR COMPENSATED AT A PER DIEM OR HOURLY RATE * * * BUT NOT INCLUDING SERVICE PAID AT OVERTIME RATES. * * *

(2) LEAVE WITHOUT PAY OR FURLOUGH NOT IN EXCESS OF TWO WORKWEEKS.

PURSUANT TO A REQUEST OF THIS OFFICE, THE CIVIL SERVICE COMMISSION HAS ADVISED, IN SUBSTANCE, THAT A "REGULAR PART-TIME EMPLOYEE" IS ONE WHO SERVES A REGULAR TOUR OF DUTY, ADMINISTRATIVELY SCHEDULED IN ADVANCE, OF WHICH THE EMPLOYEE HAS PRIOR NOTICE. SECTION 701 (A) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 967, AS AMENDED, PROVIDES IN PART, AS FOLLOWS:

EACH OFFICER OR EMPLOYEE COMPENSATED ON A PER ANNUM BASIS, AND OCCUPYING A PERMANENT POSITION WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT, WHO HAS NOT ATTAINED THE MAXIMUM SCHEDULED RATE OF COMPENSATION FOR THE GRADE IN WHICH HIS POSITION IS PLACED, SHALL BE ADVANCED IN COMPENSATION SUCCESSIVELY TO THE NEXT HIGHER RATE WITHIN THE GRADE AT THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING THE COMPLETION OF (1) EACH FIFTY-TWO CALENDAR WEEKS OF SERVICE IF HIS POSITION IS IN A GRADE IN WHICH THE STEP-INCREASES ARE LESS THAN $200, OR (2) EACH SEVENTY-EIGHT CALENDAR WEEKS OF SERVICE IF HIS POSITION IS IN A GRADE IN WHICH THE STEP- INCREASES ARE $200 OR MORE, SUBJECT TO THE FOLLOWING CONDITIONS: IN VIEW OF THE LANGUAGE "CALENDAR WEEKS OF SERVICE" APPEARING IN THE ACT THE ABOVE -STATED DEFINITION NECESSARILY MUST CONTEMPLATE THE ADMINISTRATIVE SCHEDULING OF TOURS OF DUTY FOR REGULAR PART-TIME EMPLOYEES IN TERMS OF WORKWEEKS, THAT IS, THERE MUST BE ESTABLISHED FOR SUCH EMPLOYEES AN ADMINISTRATIVE WORKWEEK SIMILAR TO THAT REQUIRED FOR FULL-TIME EMPLOYEES BY SECTION 604 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, 303.

IN ACCORDANCE WITH THE FOREGOING ONLY THOSE PERMANENT PART-TIME EMPLOYEES SERVING THE TOURS OF DUTY ILLUSTRATED IN YOUR LETTER BY EXAMPLES 1 AND 2, CLEARLY ARE REGULAR PART-TIME EMPLOYEES WITHIN THE PURVIEW OF THE SAID SECTION 25.11 (E). IN EXAMPLE 4, IF THE VARIANCE REFERRED TO CONSISTS MERELY OF SCHEDULING DIFFERENT HOURS OF DUTY FOR DIFFERENT DAYS IN THE WORKWEEK IN FIXING THE WEEKLY TOUR OF DUTY, EMPLOYEES WORKING SUCH DUTY TOURS SIMILARLY MAY BE REGARDED AS REGULAR PART-TIME EMPLOYEES. WITH RESPECT TO EMPLOYEES COVERED BY EXAMPLES 3 AND 5, A DEFINITE DETERMINATION MAY NOT BE MADE UPON THE FACTS RECITED IN YOUR LETTER. HOWEVER, THE STATED DUTY TOURS APPEAR TO LACK THE NECESSARY DEGREE OF REGULARITY, FIXITY, AND CERTAINTY TO BRING THE EMPLOYEES WORKING THEREUNDER WITHIN THE SCOPE OF THE REGULATION. ACCORDINGLY, EMPLOYEES COVERED BY EXAMPLES 1, 2, AND 4, OTHERWISE QUALIFYING, MAY BE CONSIDERED ELIGIBLE FOR PERIODIC WITHIN-GRADE PROMOTIONS UPON COMPLETION OF THE WAITING PERIOD PRESCRIBED IN THE SAID REGULATION. SHOULD ANY SUCH EMPLOYEES, NOT ON AUTHORIZED LEAVE, FAIL TO WORK ON ANY OF THE SCHEDULED WORKDAYS, SUCH DAYS WOULD CONSTITUTE DAYS WITHOUT PAY; AND IF THEY EXCEED TWO WORKWEEKS IN ANY REQUIRED ELIGIBILITY PERIOD FOR A WITHIN-GRADE SALARY ADVANCEMENT THE PERIOD MUST BE EXTENDED BY THE NUMBER OF WORKDAYS WITHOUT PAY IN EXCESS OF TWO WORKWEEKS BEFORE THE EMPLOYEE WOULD BE ENTITLED TO A WITHIN-GRADE ADVANCE. IF THE DAYS WITHOUT PAY DO NOT EXCEED TWO WORKWEEKS THEY MAY BE DISREGARDED IN COMPUTING THE PERIOD FOR WITHIN-GRADE SALARY ADVANCE.