B-125392, NOVEMBER 2, 1955, 35 COMP. GEN. 263

B-125392, NOVEMBER 2, 1955, 35 COMP. GEN. 263

COMPENSATION - RATES - CONVERSIONS AND TRANSFERS BETWEEN CLASSIFIED AND WAGE BOARD POSITIONS - SAVED COMPENSATION; EXPERTS AND CONSULTANTS - RETROACTIVE SALARY ADJUSTMENTS AN EMPLOYEE WHOSE POSITION WAS CONVERTED FROM THE GENERAL SCHEDULE TO A PREVAILING RATE SCHEDULE DURING THE PERIOD BETWEEN JANUARY 1, 1952, AND THE ENACTMENT DATE OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955 IS NOT ENTITLED UNDER THE SAVED PAY PROVISIONS IN SECTION 2 (C) OF THE ACT TO A HIGHER RATE OF COMPENSATION THAN THAT WHICH HE WOULD HAVE BEEN RECEIVING ON SUCH ENACTMENT DATE HAD HIS TRANSFER NOT OCCURRED UNTIL THE FOLLOWING DAY, NOTWITHSTANDING THERE IS NO COMPARABLE RATE UNDER THE PREVAILING RATE SCHEDULE. AN EMPLOYEE WHO, DURING THE PERIOD BETWEEN THE EFFECTIVE DATE OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955 AND ITS ENACTMENT DATE, TRANSFERRED FROM A CLASSIFIED POSITION TO A PREVAILING WAGE RATE POSITION IS NOT ENTITLED UNDER THE SAVED PAY PROVISIONS IN SECTION 2 (C) OF THE ACT TO A HIGHER RATE OF COMPENSATION THAN THAT WHICH HE WOULD HAVE BEEN RECEIVING ON SUCH ENACTMENT DATE HAD HIS TRANSFER NOT OCCURRED UNTIL THE FOLLOWING DAY, NOTWITHSTANDING THERE IS NO COMPARABLE RATE UNDER THE PREVAILING RATE SCHEDULE. AN EMPLOYEE WHO, DURING THE PERIOD BETWEEN THE EFFECTIVE DATE OF SEC. 2 (C) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955 AND ITS ENACTMENT DATE, TRANSFERRED FROM A CLASSIFIED POSITION TO A PREVAILING WAGE RATE POSITION IS ENTITLED UNDER THE SAVED PAY PROVISIONS OF THE ACT TO RETROACTIVE SALARY ADJUSTMENT ONLY FROM THE DATE OF THE TRANSFER. EXPERTS AND CONSULTANTS EMPLOYED UNDER THE AUTHORITY IN 5 U.S.C. 55A TO PERFORM PURELY PERSONAL SERVICES MAY BE ALLOWED RETROACTIVE COMPENSATION ADJUSTMENTS UNDER SECTION 8 (A) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955, WHICH PERMITS ADJUSTMENT OF THE COMPENSATION OF OFFICERS AND EMPLOYEES WHOSE SALARY RATES WERE NOT OTHERWISE INCREASED BY THE ACT.

TO THE SECRETARY OF COMMERCE, NOVEMBER 2, 1955:

IN LETTER OF AUGUST 31, 1955, YOUR ACTING ASSISTANT SECRETARY FOR ADMINISTRATION REQUESTED OUR DECISION UPON CERTAIN QUESTIONS INVOLVING THE APPLICATION OF SECTIONS 2 (C) AND 8 (A) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955, APPROVED JUNE 28, 1955, PUBLIC LAW 94. THE FOLLOWING EXAMPLES ILLUSTRATE THE QUESTIONS ARISING UNDER SUBSECTION 2 (C):

1. EMPLOYEE "A" WAS CHANGED FROM A CLASSIFICATION ACT POSITION TO A WAGE SCHEDULE POSITION, IN ACCORDANCE WITH THE REQUIREMENTS OF LAW, EFFECTIVE JANUARY 1, 1955. HIS SALARY RATE OF $1.80 AN HOUR UNDER THE CLASSIFICATION ACT WAS CHANGED TO $1.85 AN HOUR UNDER THE WAGE SCHEDULE SYSTEM. UPON COMPARISON OF THE WAGE RATE WITH THE NEW RATE UNDER THE CLASSIFICATION ACT, IT IS FOUND THAT THE EMPLOYEE WOULD BE RECEIVING $1.90 AN HOUR HAD HE REMAINED SUBJECT TO THE CLASSIFICATION ACT. SINCE THERE IS NO COMPARABLE RATE UNDER THE WAGE SCHEDULE AND THE NEXT WAGE STEP IS $1.96 AN HOUR, MAY THE EMPLOYEE'S WAGE SCHEDULE RATE BE INCREASED FROM $1.85 AN HOUR TO $1.96 AN HOUR, INSTEAD OF TO $1.90 AN HOUR, RETROACTIVE TO THE EFFECTIVE DATE OF PUBLIC LAW 94? IF NOT EFFECTIVE ON THAT DATE, ON WHAT DATE WOULD SUCH AN INCREASE BE AUTHORIZED?

2. EMPLOYEE "B" WAS TRANSFERRED FROM A CLASSIFICATION ACT POSITION TO A WAGE SCHEDULE POSITION ON APRIL 10, 1955. HIS RATE OF PAY IN THE CLASSIFICATION ACT POSITION WAS $1.64 AN HOUR. HE WAS PAID $1.69 AN HOUR IN THE WAGE SCHEDULE POSITION. SINCE THE CLASSIFICATION ACT RATE OF $1.64 AN HOUR WAS INCREASED TO $1.76 AN HOUR BY PUBLIC LAW 94, THE EMPLOYEE IS ENTITLED TO THAT RATE OF PAY AS A MINIMUM ON AND AFTER THE EFFECTIVE DATE OF THE STATUTE, SINCE IT IS MORE THAN HE WAS RECEIVING IN HIS WAGE SCHEDULE POSITION. HOWEVER, SINCE $1.76 AN HOUR IS NOT A RATE UNDER THE WAGE SCHEDULE SYSTEM AND IF THE EMPLOYEE'S TRANSFER HAD OCCURRED SUBSEQUENT TO THE PASSAGE OF PUBLIC LAW 94, HE WOULD HAVE RECEIVED $1.76 ($1.78) AN HOUR, MAY HE RECEIVE THAT RATE EFFECTIVE APRIL 10, 1955, THE DATE OF HIS TRANSFER FROM A POSITION UNDER THE CLASSIFICATION ACT TO A WAGE SCHEDULE POSITION? (WE HAVE BEEN ADVISED INFORMALLY THAT THE RATE OF $1.76 APPEARING IN THE FOURTH FROM LAST LINE OF THIS EXAMPLE IS IN ERROR AND THAT THE CORRECT RATE IS $1.78.)

SECTION 2 (C) OF PUBLIC LAW 94, 5 U.S.C. 1113 NOTE, READS AS FOLLOWS:

(C) EACH OFFICER OR EMPLOYEE---

(1) (A) WHO WITH HIS POSITION HAS BEEN TRANSFERRED, AT ANY TIME DURING THE PERIOD BEGINNING JANUARY 1, 1952, AND ENDING ON THE DATE OF ENACTMENT OF THIS ACT, FROM THE CRAFTS, PROTECTIVE, AND CUSTODIAL SCHEDULE OR THE GENERAL SCHEDULE TO A PREVAILING RATE SCHEDULE PURSUANT TO THE CLASSIFICATION ACT OF 1949 OR TITLE I OF THE ACT OF SEPTEMBER 1, 1954 ( PUBLIC LAW 763, EIGHTY-THIRD CONGRESS), OR (B) WHO, AT ANY TIME DURING THE PERIOD BEGINNING ON THE EFFECTIVE DATE OF THIS SECTION AND ENDING ON THE DATE OF ENACTMENT OF THIS ACT, TRANSFERRED FROM A POSITION SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, TO A POSITION SUBJECT TO A PREVAILING RATE SCHEDULE,

(2) WHO AT ALL TIMES SUBSEQUENT TO SUCH TRANSFER WAS IN THE SERVICE OF THE UNITED STATES (INCLUDING THE ARMED FORCES OF THE UNITED STATES) OR OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, WITHOUT BREAK IN SUCH SERVICE OF MORE THAN THIRTY CONSECUTIVE CALENDAR DAYS AND, IN THE CASE OF AN INDIVIDUAL RELIEVED FROM TRAINING AND SERVICE IN THE ARMED FORCES OF THE UNITED STATES OR DISCHARGED FROM HOSPITALIZATION FOLLOWING SUCH TRAINING AND SERVICE, WITHOUT BREAK IN SERVICE IN EXCESS OF THE PERIOD PROVIDED BY LAW FOR THE MANDATORY RESTORATION OF SUCH INDIVIDUAL TO A POSITION IN OR UNDER THE FEDERAL GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA,

(3) WHO IS ON SUCH DATE OF ENACTMENT BEING COMPENSATED UNDER A PREVAILING RATE SCHEDULE, AND

(4) WHOSE RATE OF BASIC COMPENSATION IS LESS ON SUCH DATE OF ENACTMENT THAN THE RATE TO WHICH HE WOULD HAVE BEEN ENTITLED ON SUCH DATE OF ENACTMENT IF SUCH TRANSFER HAD NOT OCCURRED (UNLESS HE IS RECEIVING SUCH LESSER RATE BY REASON OF AN ADVERSE PERSONNEL ACTION RESULTING FROM HIS OWN FAULT),

SHALL BE PAID BASIC COMPENSATION AT A RATE EQUAL TO THE RATE WHICH HE WOULD HAVE BEEN RECEIVING ON SUCH DATE OF ENACTMENT (INCLUDING COMPENSATION FOR EACH WITHIN-GRADE AND LONGEVITY STEP-INCREASE WHICH HE WOULD HAVE EARNED) IF SUCH TRANSFER HAD NOT OCCURRED UNTIL THE DAY IMMEDIATELY FOLLOWING SUCH DATE OF ENACTMENT, FOR ALL TIME IN A PAY STATUS ON AND AFTER THE EFFECTIVE DATE OF THIS SECTION IN A POSITION SUBJECT TO A PREVAILING RATE SCHEDULE UNDER THE CIRCUMSTANCES PRESCRIBED IN THIS SUBSECTION, UNTIL (A) HE LEAVES THE POSITION WHICH HE HOLDS ON SUCH DATE OF ENACTMENT, OR (B) HE IS ENTITLED TO RECEIVE BASIC COMPENSATION AT A HIGHER RATE UNDER A PREVAILING RATE SCHEDULE; BUT WHEN SUCH POSITION BECOMES VACANT, THE RATE OF BASIC COMPENSATION OF ANY SUBSEQUENT APPOINTEE THERETO SHALL BE FIXED IN ACCORDANCE WITH PREVAILING RATE SCHEDULES.

UNDER THE EXPRESS LANGUAGE OF SECTION 2 (C) AN EMPLOYEE WHO COMPLIES WITH THE CONDITIONS SPECIFIED THEREIN IS ENTITLED TO BASIC COMPENSATION AT A RATE EQUAL TO THE RATE WHICH HE WOULD HAVE BEEN RECEIVING ON THE DATE OF ENACTMENT OF PUBLIC LAW 94 HAD HIS TRANSFER TO A PREVAILING RATE POSITION NOT OCCURRED UNTIL THE DAY FOLLOWING THE DATE OF ENACTMENT OF THAT LAW. SUCH RATE IS PAYABLE TO THE EMPLOYEE FOR ALL TIME IN A PAY STATUS ON OR AFTER THE EFFECTIVE DATE--- FIRST DAY OF THE FIRST PAY PERIOD COMMENCING AFTER FEBRUARY 28, 1955--- OF THAT SECTION. WE KNOW OF NO AUTHORITY UNDER THAT SECTION, HOWEVER, FOR PAYMENT TO AN EMPLOYEE OF ANY AMOUNT GREATER THAN THAT TO WHICH HE WOULD HAVE BEEN ENTITLED ON THE DATE OF ENACTMENT OF PUBLIC LAW 94 HAD HE CONTINUED IN THE CLASSIFICATION ACT POSITION UNTIL THAT DATE. NO PROVISION IS MADE IN THE SECTION FOR ADJUSTMENT OF A WAGE RATE ON THE BASIS OF CONSTRUCTIVE TRANSFER OF AN EMPLOYEE FROM A CLASSIFIED TO A PREVAILING RATE POSITION ON THE DAY FOLLOWING THE DATE OF ENACTMENT OF PUBLIC LAW 94. THE SECTION CONTEMPLATES THAT THE BASIC COMPENSATION PAYABLE UNDER ITS PROVISIONS SHALL CONTINUE UNTIL THE EMPLOYEE LEAVES THE POSITION HE WAS OCCUPYING ON THE DATE OF ENACTMENT OF PUBLIC LAW 94 OR UNTIL HE OTHERWISE BECOMES ENTITLED TO A HIGHER RATE OF BASIC COMPENSATION IN ACCORDANCE WITH RULES, REGULATIONS, OR PRACTICES GOVERNING THE COMPENSATION OF PREVAILING RATE EMPLOYEES. HENCE, IN THE EXAMPLE INVOLVING EMPLOYEE "A," THE $1.90 PER HOUR RATE IS THE ONE TO WHICH HE IS ENTITLED BY VIRTUE OF SECTION 2 (C) AND HIS COMPENSATION SHOULD BE ADJUSTED TO THAT RATE RETROACTIVE TO THE BEGINNING OF THE FIRST PAY PERIOD COMMENCING AFTER FEBRUARY 28, 1955. IN THE EXAMPLE INVOLVING EMPLOYEE "B," THE $1.76 PER HOUR RATE IS THE ONE PROPERLY PAYABLE UNDER SECTION 2 (C) AND AN ADJUSTMENT SHOULD BE MADE RETROACTIVE TO APRIL 10, 1955, THE DATE OF THE EMPLOYEE'S TRANSFER TO A PREVAILING RATE SCHEDULE.

THE REMAINING QUESTION PRESENTED IN THE ACTING ASSISTANT SECRETARY'S LETTER IS WHETHER EXPERTS AND CONSULTANTS EMPLOYED BY YOUR DEPARTMENT IN ACCORDANCE WITH THE AUTHORITY CONTAINED IN SECTION 15 OF THE ACT OF AUGUST 2, 1946, 5 U.S.C. 55A, MAY RECEIVE RETROACTIVE COMPENSATION ADJUSTMENTS UNDER SECTION 8 (A) OF PUBLIC LAW 94, 5 U.S.C. 1113 NOTE. SECTION 8 (A) IS AS FOLLOWS:

NOTWITHSTANDING SECTION 3679 OF THE REVISED STATUTES, AS AMENDED (31 U.S.C., SEC. 665), THE RATES OF COMPENSATION OF OFFICERS AND EMPLOYEES OF THE FEDERAL GOVERNMENT AND OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHOSE RATES OF COMPENSATION ARE FIXED BY ADMINISTRATIVE ACTION PURSUANT TO LAW AND ARE NOT OTHERWISE INCREASED BY THIS ACT ARE HEREBY AUTHORIZED TO BE INCREASED, EFFECTIVE ON OR AFTER THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN AFTER FEBRUARY 28, 1955, BY AMOUNTS NOT TO EXCEED THE INCREASES PROVIDED BY THIS ACT FOR CORRESPONDING RATES OF COMPENSATION IN THE APPROPRIATE SCHEDULE OR SCALE OF PAY.

WE HAVE HELD THAT THE PROVISIONS OF SECTION 15 OF THE ACT OF AUGUST 2, 1946, APPLY NOT ONLY TO EXPERTS AND CONSULTANTS EMPLOYED UNDER FORMAL CONTRACTS BUT ALSO TO THOSE WHO ARE APPOINTED TO POSITIONS UNDER THE UNITED STATES. SEE 27 COMP. GEN. 46. MOREOVER, IN OUR DECISION OF MAY 17, 1948, 27 COMP. GEN. 695, WE SAID:

WHERE THE SERVICES TO BE PERFORMED UNDER CONTRACT ARE PURELY PERSONAL IN NATURE, AS DISTINGUISHED FROM NONPERSONAL SERVICES WHICH ALSO MAY BE PROCURED UNDER AUTHORITY CONTAINED IN SECTION 15 OF PUBLIC LAW 600 (SEE 26 COMP. GEN. 188, ID. 442), IT WOULD APPEAR THAT ANY AMOUNT PAYABLE ON ACCOUNT OF THE PERFORMANCE OF SUCH SERVICES IS PAYABLE AS THE RESULT OF AN EMPLOYER-EMPLOYEE RELATIONSHIP EXISTING BETWEEN THE UNITED STATES AND THE PERSON PERFORMING THE SERVICE * * *.

SECTION 8 (A) WAS INTENDED PRIMARILY TO PERMIT THE PAYMENT OF RETROACTIVE COMPENSATION TO EMPLOYEES OF THOSE AGENCIES THAT BY STATUTE HAVE BEEN GRANTED DISCRETIONARY AUTHORITY TO FIX COMPENSATION RATES FOR THEIR EMPLOYEES. NEVERTHELESS, AN EXPERT OR CONSULTANT PERFORMING PURELY PERSONAL SERVICES FOR A RATE OF COMPENSATION FIXED ADMINISTRATIVELY IN ACCORDANCE WITH THE AUTHORITY CONTAINED IN SECTION 15 OF THE ACT OF AUGUST 2, 1946, CERTAINLY APPEARS TO QUALIFY UNDER THE LANGUAGE OF SECTION 8 (A) AS AN EMPLOYEE OF THE FEDERAL GOVERNMENT WHOSE RATE OF COMPENSATION IS "FIXED BY ADMINISTRATIVE ACTION PURSUANT TO LAW.' IN THE ABSENCE OF EVIDENCE OF A CONTRARY LEGISLATIVE INTENT, AND NONE SUCH HAS BEEN FOUND, WE REASONABLY MAY CONCLUDE, THAT SECTION 8 (A) IS APPLICABLE TO EXPERTS AND CONSULTANTS EMPLOYED SOLELY UPON A PERSONAL SERVICE BASIS IN ACCORDANCE WITH SECTION 15 OF THE ACT OF AUGUST 2, 1946.