B-128019, JULY 6, 1956, 36 COMP. GEN. 18

B-128019: Jul 6, 1956

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LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - EMPLOYEES RECEIVING PREMIUM COMPENSATION A FEDERAL EMPLOYEE WHO IS RECEIVING PREMIUM COMPENSATION ON AN ANNUAL BASIS FOR IRREGULAR OR UNSCHEDULED OVERTIME. IS ENTITLED ON SEPARATION FROM THE SERVICE TO A LUMP-SUM PAYMENT FOR UNUSED ANNUAL LEAVE EQUAL TO THE COMPENSATION. WHICH HE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE DURING THE LEAVE PERIOD. AT THE TIME OF TERMINATION OF ACTIVE DUTY SERVICE IS ENTITLED TO BE PAID THE PREMIUM COMPENSATION IN CONNECTION WITH SETTLEMENT FOR HIS ACCUMULATED ANNUAL LEAVE PAID PURSUANT TO THE ACT OF DECEMBER 21. SHALL CONTINUE DURING PERIODS OF LEAVE WITH PAY TAKEN DURING PERIODS IN WHICH ADDITIONAL COMPENSATION UNDER SUCH SECTIONS IS PAYABLE IN ACCORDANCE WITH PARAGRAPHS (A).

B-128019, JULY 6, 1956, 36 COMP. GEN. 18

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - EMPLOYEES RECEIVING PREMIUM COMPENSATION A FEDERAL EMPLOYEE WHO IS RECEIVING PREMIUM COMPENSATION ON AN ANNUAL BASIS FOR IRREGULAR OR UNSCHEDULED OVERTIME, PURSUANT TO SECTION 401 (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, IS ENTITLED ON SEPARATION FROM THE SERVICE TO A LUMP-SUM PAYMENT FOR UNUSED ANNUAL LEAVE EQUAL TO THE COMPENSATION, INCLUDING PREMIUM COMPENSATION, WHICH HE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE DURING THE LEAVE PERIOD.

TO THE ATTORNEY GENERAL, JULY 6, 1956:

IN LETTER OF MAY 17, 1956, YOUR REFERENCE A3, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL REQUESTED OUR DECISION AS TO WHETHER AN EMPLOYEE WHO RECEIVES PREMIUM COMPENSATION UNDER SECTION 401 (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 68 STAT. 1111, 5 U.S.C. SUPP. III 926, AT THE TIME OF TERMINATION OF ACTIVE DUTY SERVICE IS ENTITLED TO BE PAID THE PREMIUM COMPENSATION IN CONNECTION WITH SETTLEMENT FOR HIS ACCUMULATED ANNUAL LEAVE PAID PURSUANT TO THE ACT OF DECEMBER 21, 1944, AS AMENDED, 5 U.S.C. 61B.

CIVIL SERVICE COMMISSION REGULATIONS GOVERNING SUCH PREMIUM COMPENSATION PROVIDE IN PERTINENT PART, 5 C.F.R. 25.272, AS FOLLOWS:

PAYMENT PROVISIONS. (A) EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, AN EMPLOYEE'S ADDITIONAL COMPENSATION UNDER SECTION 25.251 OR SECTION 25.261 SHALL BEGIN ON THE DATE HE ENTERS ON DUTY IN THE POSITION CONCERNED FOR PURPOSES OF BASIC COMPENSATION, AND SHALL CEASE ON THE DATE THAT HE CEASES TO BE PAID BASIC COMPENSATION IN THE POSITION.

(E) PAYMENTS OF ADDITIONAL COMPENSATION UNDER SECTION 25.251 OR SECTION 25.261, SHALL CONTINUE DURING PERIODS OF LEAVE WITH PAY TAKEN DURING PERIODS IN WHICH ADDITIONAL COMPENSATION UNDER SUCH SECTIONS IS PAYABLE IN ACCORDANCE WITH PARAGRAPHS (A), (B), AND (C) OF THIS SECTION.

THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, AS AMENDED BY SECTION 4 (A) OF THE ACT OF JULY 2, 1953, 67 STAT. 137, 5 U.S.C. 61B, PROVIDES IN PART:

* * * SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH OFFICER OR EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE * *

THE LUMP-SUM LEAVE PAYMENT IS TO BE COMPUTED ON THE BASIS OF THE EMPLOYEE'S RIGHTS AT THE TIME OF SEPARATION UNDER ALL APPLICABLE LAWS AND REGULATIONS EXISTING AT THAT TIME WHICH WOULD HAVE AFFECTED HIS COMPENSATION HAD HE REMAINED IN THE SERVICE FOR THE PERIOD COVERED BY HIS LEAVE. 26 COMP. GEN. 102, 105.

SECTION 401 (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, AND THE CIVIL SERVICE REGULATIONS, 5 C.F.R. 25.261, PROVIDE FOR THE PAYMENT OF SUCH PREMIUM COMPENSATION ON AN ANNUAL BASIS, THAT IS, IN CONSIDERATION OF THE SUBSTANTIAL AMOUNTS OF IRREGULAR, UNSCHEDULED OVERTIME DUTY, ETC., REQUIRED IN THE POSITION OVER A PERIOD OF A YEAR, RATHER THAN OVER A PAY PERIOD OR OTHER SIMILAR SUBSTANTIALLY SHORTER PERIOD OF TIME.

UNDER THE CIRCUMSTANCES DESCRIBED, THE EMPLOYEE, PURSUANT TO 5 C.F.R. 25.272, IS ENTITLED TO RECEIVE THE PREMIUM COMPENSATION UNTIL HE CEASES TO BE PAID BASIC COMPENSATION IN THE POSITION, AND IS ENTITLED TO HAVE HIS LUMP-SUM PAYMENT FOR ANNUAL LEAVE COMPUTED UNDER ALL EXISTING REGULATIONS WHICH WOULD HAVE BEEN APPLICABLE HAD HE REMAINED IN SERVICE. ACCORDINGLY, THE EMPLOYEE IS ENTITLED TO A LUMP-SUM PAYMENT FOR ANNUAL LEAVE INCLUDING PREMIUM COMPENSATION AUTHORIZED UNDER SECTION 401 (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, TO THE EXTENT THAT HE WOULD HAVE RECEIVED SUCH PREMIUM PAY HAD HE REMAINED IN THE SERVICE FOR THE PERIOD COVERED BY THE LUMP-SUM PAYMENT.