B-135656, MAY 19, 1958, 37 COMP. GEN. 774

B-135656: May 19, 1958

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YOUR ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR ADVICE UPON THE QUESTION WHETHER RETROACTIVE ACTION MAY BE TAKEN TO CORRECT ADMINISTRATIVE ERRORS IN PROCESSING PERIODIC WITHIN-GRADE STEP INCREASES ADMINISTRATIVELY GRANTED TO EMPLOYEES WHO ARE NOT SUBJECT TO THE CLASSIFICATION ACT OF 1949. A SPECIFIC INSTANCE OF SITUATIONS WHICH ARISE FROM TIME TO TIME IS STATED IN THE LETTER. WAS DUE TO RECEIVE A STEP INCREASE TO THE SECOND STEP OF THE WAGE SCHEDULE. THE TICKLER NOTATION FOR SUCH STEP INCREASE WAS RECORDED FOR JANUARY 1958 AND SUCH ERROR WAS NOT DISCOVERED UNTIL LATE IN NOVEMBER 1957. THE EMPLOYEE WILL SUFFERAN ADDITIONAL LOSS. WHEREAS THE EMPLOYEE WOULD HAVE OTHERWISE RECEIVED IT EFFECTIVE JULY 12.

B-135656, MAY 19, 1958, 37 COMP. GEN. 774

CIVILIAN PERSONNEL - WAGE BOARD EMPLOYEES - PERIODIC STEP-INCREASES - ADMINISTRATIVE ERROR AN ADMINISTRATIVE ERROR IN FAILING TO MAKE THE PROPER NOTATION SO THAT A WAGE BOARD EMPLOYEE WOULD RECEIVE A PERIODIC STEP-INCREASE ON THE DATE HE BECAME ELIGIBLE FOR THE INCREASE, PURSUANT TO REGULATIONS WHICH IMPLEMENT 5 U.S.C. 1082 (7) AND WHICH DO NOT REQUIRE ANY ADMINISTRATIVE DETERMINATION AFTER THE EMPLOYEE MEETS THE SERVICE REQUIREMENTS, MAY BE RETROACTIVELY CORRECTED WITHOUT VIOLATING THE GENERAL RULE WHICH PROHIBITS INCREASES IN COMPENSATION BASED ON RETROACTIVE ADMINISTRATIVE DETERMINATION.

TO THE SECRETARY OF AGRICULTURE, MAY 19, 1958:

ON MARCH 25, 1958, YOUR ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR ADVICE UPON THE QUESTION WHETHER RETROACTIVE ACTION MAY BE TAKEN TO CORRECT ADMINISTRATIVE ERRORS IN PROCESSING PERIODIC WITHIN-GRADE STEP INCREASES ADMINISTRATIVELY GRANTED TO EMPLOYEES WHO ARE NOT SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1071 NOTE.

A SPECIFIC INSTANCE OF SITUATIONS WHICH ARISE FROM TIME TO TIME IS STATED IN THE LETTER, AS FOLLOWS:

AN EMPLOYEE OF THE DEPARTMENT OCCUPYING A WAGE BOARD POSITION, WB 21, WAS DUE TO RECEIVE A STEP INCREASE TO THE SECOND STEP OF THE WAGE SCHEDULE, UPON COMPLETION OF 26 WEEKS OF SERVICE, EFFECTIVE JANUARY 13, 1957. THROUGH ADMINISTRATIVE ERROR, HOWEVER, THE TICKLER NOTATION FOR SUCH STEP INCREASE WAS RECORDED FOR JANUARY 1958 AND SUCH ERROR WAS NOT DISCOVERED UNTIL LATE IN NOVEMBER 1957. IF THE ADMINISTRATIVE ERROR CANNOT BE CORRECTED BY RETROACTIVE ACTION, THE EMPLOYEE WILL SUFFERAN ADDITIONAL LOSS, APART FROM THE IMMEDIATE FINANCIAL LOSS, BECAUSE HIS NEXT STEP INCREASE, WHICH WOULD OTHERWISE BE DUE UPON THE COMPLETION OF 78 WEEKS OF SERVICE AT THE SECOND STEP OF THE WAGE SCHEDULE WOULD NOT BECOME EFFECTIVE UNTIL JUNE 1, 1959, WHEREAS THE EMPLOYEE WOULD HAVE OTHERWISE RECEIVED IT EFFECTIVE JULY 12, 1958.

THE COMPENSATION OF WAGE BOARD EMPLOYEES IS DETERMINED PURSUANT TO SECTION 202 (7) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1082 (7), THE CODIFIED PROVISIONS READING AS FOLLOWS:

THIS CHAPTER (EXCEPT TITLE XII) SHALL NOT APPLY TO--- ( * * * * * * *

(7) EMPLOYEES IN RECOGNIZED TRADES OR CRAFTS, OR OTHER SKILLED MECHANICAL CRAFTS, OR IN UNSKILLED, SEMISKILLED, OR SKILLED MANUAL LABOR OCCUPATIONS, AND OTHER EMPLOYEES INCLUDING FOREMEN AND SUPERVISORS IN POSITIONS HAVING TRADE, CRAFT, OR LABORING EXPERIENCE AND KNOWLEDGE AS THE PARAMOUNT REQUIREMENTS, * * *: PROVIDED, THAT THE COMPENSATION OF SUCH EMPLOYEES SHALL BE FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES * * *.

YOUR DEPARTMENTAL REGULATIONS GOVERNING THE STEP INCREASES FOR THE WAGE BOARD EMPLOYEES CONCERNED ARE AS FOLLOWS (8 AR 217F):

WITHIN-GRADE PAY ADVANCEMENTS.--- REGULAR WORKERS AND EMPLOYEES IN SEASONALLY RECURRING JOBS FOR WHOM THE WAGE BOARD CONCERNED HAS ESTABLISHED A THREE-STEP RATE RANGE SHALL BE ADVANCED FROM STEP TO STEP WITHIN THE RATE RANGE IN ACCORDANCE WITH THE FOLLOWING PLAN:

(1) REGULAR WORKERS PAID UNDER A RATE RANGE SHALL BE RATED UNDER THE PERFORMANCE RATING SYSTEM.

(2) AN EMPLOYEE WHOSE PERFORMANCE IS SATISFACTORY SHALL BE ADVANCED TO THE SECOND STEP OF THE RANGE AT THE BEGINNING OF THE PAY PERIOD FOLLOWING 26 CALENDAR WEEKS OF SERVICE.

(3) AN EMPLOYEE WHOSE PERFORMANCE IS SATISFACTORY SHALL BE ADVANCED FROM THE SECOND TO THE THIRD STEP AT THE BEGINNING OF THE PAY PERIOD FOLLOWING 78 CALENDAR WEEKS OF SERVICE IN THE SECOND STEP.

IT IS CLEAR FROM THE ABOVE-QUOTED REGULATION THAT IT IS NOT ONLY THE POLICY OF YOUR DEPARTMENT, BUT A REQUIREMENT, THAT STEP INCREASES BE GIVEN THOSE WAGE BOARD EMPLOYEES WHO MEET THE REQUIREMENTS OF THE REGULATION. NO ADMINISTRATIVE DETERMINATION OF ENTITLEMENT IS REQUIRED AFTER AN EMPLOYEE WHOSE PERFORMANCE IS SATISFACTORY HAS SERVED THE REQUIRED PERIOD OF TIME IN HIS JOB.

IN THE SITUATION PRESENTED IT APPEARS THAT THE EMPLOYEE MET ALL THE REQUIREMENTS FOR A STEP INCREASE ON JANUARY 13, 1957, AND THAT THE ADMINISTRATIVE ERROR IN PLACING A TICKLER NOTATION WAS THE ONLY REASON HE WAS NOT GIVEN THE STEP INCREASE ON THAT DATE. UNDER THESE CIRCUMSTANCES OUR VIEW IS THAT THE ADMINISTRATIVE ERROR OR OVERSIGHT DID NOT DEFEAT OR DELAY THE RIGHT OF THE EMPLOYEE TO THE STEP INCREASE ON AND AFTER THE DATE HE BECAME QUALIFIED AND ENTITLED THERETO. THEREFORE, ADMINISTRATIVE ACTION RETROACTIVELY CORRECTING SUCH ERROR OR OVERSIGHT WILL NOT BE REGARDED AS PROHIBITED UNDER THE GENERAL RULE THAT INCREASES IN COMPENSATION LAWFULLY MAY NOT BE GRANTED BY ADMINISTRATIVE DETERMINATION TO HAVE RETROACTIVE EFFECT. SEE 21 COMP. GEN. 369 ( ANSWER TO FIFTH QUESTION AT PAGE 376), AND 37 COMP. GEN. 300.