B-129494, NOVEMBER 13, 1956, 36 COMP. GEN. 395

B-129494: Nov 13, 1956

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

RECEIVES AN INCREASE IN COMPENSATION OF MORE THAN ONE STEP IS NOT TO BE REGARDED AS HAVING RECEIVED AN EQUIVALENT INCREASE IN COMPENSATION FOR COMMENCEMENT OF A NEW PERIOD FOR PERIODIC WITHIN-GRADE ADVANCEMENT. IS AN "EQUIVALENT INCREASE" WITHIN THE MEANING OF SECTION 701 (A) (A). AS AN EXAMPLE YOU RECITE THE CASE OF AN EMPLOYEE WHO WAS REASSIGNED FROM THE POSITION OF INSPECTOR ( GENERAL SUPPLIES) GS-9. THAT AN EMPLOYEE WHO IS COMPENSATED ON A PER ANNUM BASIS AND OCCUPIES A PERMANENT POSITION AND WHO HAS NOT OBTAINED THE MAXIMUM RATE OF COMPENSATION FOR HIS GRADE SHALL BE ADVANCED SUCCESSIVELY TO THE NEXT HIGHER RATE WITHIN PRESCRIBED PERIODS PROVIDED "NO EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE WAS RECEIVED DURING SUCH PERIOD.'.

B-129494, NOVEMBER 13, 1956, 36 COMP. GEN. 395

FEDERAL EMPLOYEES - COMPENSATION - REASSIGNMENT - PERIODIC WITHIN-GRADE ADVANCEMENT AN EMPLOYEE WHO, BY REASON OF A REASSIGNMENT TO A DIFFERENT POSITION IN THE SAME GENERAL SCHEDULE GRADE FOR WHICH A HIGHER MINIMUM RATE HAS BEEN ESTABLISHED BY THE CIVIL SERVICE COMMISSION UNDER SECTION 803 OF THE CLASSIFICATION ACT OF 1949, RECEIVES AN INCREASE IN COMPENSATION OF MORE THAN ONE STEP IS NOT TO BE REGARDED AS HAVING RECEIVED AN EQUIVALENT INCREASE IN COMPENSATION FOR COMMENCEMENT OF A NEW PERIOD FOR PERIODIC WITHIN-GRADE ADVANCEMENT.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, NOVEMBER 13, 1956:

YOUR LETTER OF OCTOBER 11, 1956, PRESENTS FOR OUR CONSIDERATION THE QUESTION WHETHER AN INCREASE IN COMPENSATION WHICH AN EMPLOYEE RECEIVES AS A RESULT OF REASSIGNMENT TO A POSITION FOR WHICH THE COMMISSION HAS ESTABLISHED A NEW MINIMUM PAY RATE UNDER AUTHORITY OF SECTION 803 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 68 STAT. 1106, 5 U.S.C. 1133, IS AN "EQUIVALENT INCREASE" WITHIN THE MEANING OF SECTION 701 (A) (A), OF THE CLASSIFICATION ACT, 64 STAT. 1100, 5 U.S.C. 1121, AND SECTION 25.11 (F) OF THE FEDERAL EMPLOYEES PAY REGULATIONS. AS AN EXAMPLE YOU RECITE THE CASE OF AN EMPLOYEE WHO WAS REASSIGNED FROM THE POSITION OF INSPECTOR ( GENERAL SUPPLIES) GS-9, $5,710 (STEP 3), TO THE POSITION OF CHEMIST ( ANALYTICAL) GS-9, $6,115 (STEP 6/--- THE INCREASE IN COMPENSATION BEING $405 AND BEING MORE THAN A STEP-INCREASE IN THE GRADE.

SECTION 701 (A) (A) PROVIDES, IN EFFECT, THAT AN EMPLOYEE WHO IS COMPENSATED ON A PER ANNUM BASIS AND OCCUPIES A PERMANENT POSITION AND WHO HAS NOT OBTAINED THE MAXIMUM RATE OF COMPENSATION FOR HIS GRADE SHALL BE ADVANCED SUCCESSIVELY TO THE NEXT HIGHER RATE WITHIN PRESCRIBED PERIODS PROVIDED "NO EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE WAS RECEIVED DURING SUCH PERIOD.'

SECTION 803 OF THE REFERRED-TO ACT READS AS FOLLOWS:

(A) WHENEVER THE COMMISSION SHALL FIND (1) THAT A SUFFICIENT NUMBER OF QUALIFIED ELIGIBLES FOR POSITIONS IN A GIVEN CLASS CANNOT BE SECURED IN ONE OR MORE AREAS OR LOCATIONS AT THE EXISTING MINIMUM RATE FOR SUCH CLASS, AND (2) THAT THERE IS A POSSIBILITY THAT A SUFFICIENT NUMBER OF SUCH ELIGIBLES CAN BE SECURED BY INCREASING THE MINIMUM RATE FOR SUCH CLASS IN SUCH AREAS OR LOCATIONS TO ONE OF THE HIGHER RATES WITHIN THE GRADE IN WHICH SUCH CLASS IS PLACED, THE COMMISSION MAY ESTABLISH SUCH HIGHER RATE AS THE MINIMUM RATE FOR THAT CLASS IN EACH AREA OR LOCATION CONCERNED.

(B) MINIMUM RATES ESTABLISHED UNDER SUBSECTION (A) MAY BE REVISED FROM TIME TO TIME BY THE COMMISSION. SUCH ACTIONS OR REVISIONS SHALL HAVE THE FORCE AND EFFECT OF LAW.

(C) ANY INCREASE IN RATE OF BASIC COMPENSATION RESULTING FROM THE ESTABLISHMENT OF MINIMUM RATES UNDER THIS SECTION SHALL NOT BE REGARDED AS AN "EQUIVALENT INCREASE" IN COMPENSATION WITHIN THE MEANING OF SECTION 701 (A).

SECTION 25.11 (F) OF THE COMMISSION'S REGULATION IMPLEMENTING SECTIONS 701 AND 803, READS, IN PERTINENT PART, AS FOLLOWS:

(F) EQUIVALENT INCREASE IN COMPENSATION IS THE TOTAL OF ANY INCREASE OR INCREASES IN BASIC COMPENSATION WHICH IS EQUAL TO OR GREATER THAN THE SMALLEST STEP-INCREASE IN ANY GRADE IN WHICH THE EMPLOYEE HAS SERVED DURING A PERIOD UNDER CONSIDERATION. STEP INCREASES RESULTING FROM THE APPLICATION OF SECTIONS 703 AND 802 (B) OF THE ACT ARE EQUIVALENT INCREASES IN COMPENSATION. THE FOLLOWING, AMONG OTHERS, ARE NOT "EQUIVALENT INCREASE IN COMPENSATION: "

(5) AN INCREASE RESULTING FROM THE ESTABLISHMENT OF ANY MINIMUM RATE PURSUANT TO SECTION 803 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED.

AS STATED IN YOUR LETTER: "THE INCREASE IN THE INSTANT CASE DOES NOT RESULT FROM THE APPLICATION OF SECTION 703 OF 802 (B) OF THE ACT. THE SOLE REASON THAT THE EMPLOYEE RECEIVES AN INCREASE UPON REASSIGNMENT WITHIN THE SAME GRADE IS THE FACT THAT A MINIMUM RATE HAS BEEN ESTABLISHED PURSUANT TO SECTION 803 OF THE CLASSIFICATION ACT FOR THE POSITION TO WHICH HE IS REASSIGNED.'

SUBSECTION (A) OF SECTION 803, 5 U.S.C. 1133 (A), HEREINBEFORE QUOTED, AUTHORIZES THE COMMISSION TO INCREASE THE MINIMUM RATE OF A GRADE WHEN THE CONDITIONS THEREIN SPECIFIED ARE FOUND TO EXIST. BY VIRTUE OF SUBSECTION (B), 5 U.S.C. 1133 (B), OF THAT SECTION SUCH ACTION WHEN TAKEN BY THE COMMISSION HAS "THE FORCE AND EFFECT OF LAW.' IN IMPLEMENTING THE PROVISIONS OF SUBSECTION (C), 5 U.S.C. 1133 (C), OF THAT SAME SECTION OF THE STATUTE, SECTION 25.105 (E) OF THE COMMISSION'S PAY REGULATIONS CAPTIONED, SPECIAL ADJUSTMENTS IN MINIMUM PAY RATE OF THE CLASS, PROVIDES:

(E) AS OF THE EFFECTIVE DATE OF THE APPLICATION OF ANY DECISION RAISING A MINIMUM RATE UNDER THIS AUTHORITY, EACH FEDERAL ACTIVITY IN THE DEFINED AREA OR LOCATION SHALL ADJUST THE BASIC COMPENSATION OF ITS CURRENT EMPLOYEES IN THE SPECIFIC OCCUPATIONAL CLASS OR CLASSES TO THE NEW MINIMUM RATE. SUCH AN ADJUSTMENT SHALL NOT BE REGARDED AS AN "EQUIVALENT INCREASE" IN COMPENSATION WITHIN THE MEANING OF TITLE VII OF THE CLASSIFICATION ACT OF 1949 AS AMENDED. PAY OF EMPLOYEES WHO ARE ALREADY RECEIVING BASIC COMPENSATION AT A RATE EQUIVALENT TO OR ABOVE THE NEW MINIMUM SHALL NOT BE AFFECTED.

WHILE THE REGULATION JUST QUOTED DOES NOT IN EXPRESS TERMS COVER A REASSIGNMENT SITUATION SUCH AS THAT HERE PRESENTED WE BELIEVE THAT, IN PRINCIPLE, THERE IS NO DIFFERENCE WITHIN THE PURVIEW OF THE STATUTE BETWEEN AN EMPLOYEE CURRENTLY EMPLOYED WHOSE PAY RATE IS RAISED TO THE NEW MINIMUM RATE OF THE GRADE PURSUANT TO THAT REGULATION AND THE EMPLOYEE IN THE INVOLVED CATEGORY WHO IS REASSIGNED TO A DIFFERENT CATEGORY OR CLASS IN THE SAME GRADE WHERE A HIGHER MINIMUM RATE IS FIXED BY THE COMMISSION FOR THAT DIFFERENT CATEGORY OR CLASS. LEGALLY, WE FEEL THAT AN EMPLOYEE IN ANY PARTICULAR CATEGORY COMING WITHIN PURVIEW OF SECTION 803 COULD RESIGN FROM THAT PARTICULAR POSITION AND BE REAPPOINTED IN THE SAME GRADE AT A HIGHER RATE OF COMPENSATION IN ANOTHER CATEGORY COMMANDING A HIGHER MINIMUM RATE IF HIS QUALIFICATION MEETS THE REQUIREMENT. WE SEE NO DIFFERENCE BETWEEN THAT TYPE OF A SITUATION AND ONE INVOLVING A REASSIGNMENT SUCH AS IN THE CASE HERE PRESENTED.

SINCE THE INCREASE IN THE MINIMUM RATE OF COMPENSATION HERE ARISES SOLELY FROM THE OPERATION OF SECTION 803 OF THE STATUTE WE HOLD THAT BY VIRTUE OF SUBSECTION (C) OF THAT SECTION SUCH INCREASE IS NOT AN "EQUIVALENT INCREASE" WITHIN THE MEANING OF SECTION 701 (A) OF THE ACT.