B-136189, AUGUST 26, 1958, 38 COMP. GEN. 161

B-136189: Aug 26, 1958

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TO EMPLOYEES FOR FOREST-FIRE DETECTION DUTY IN ADDITION TO THEIR REGULAR 40-HOUR WORK PERIODS IS FOR INCLUSION IN LUMP-SUM LEAVE PAYMENTS MADE TO THE EMPLOYEES. IN CASE EMPLOYEES ARE SEPARATED DURING THE PREDETERMINED PERIOD FOR WHICH PREMIUM COMPENSATION ON A PERCENTAGE BASIS IS PAYABLE UNDER 5 U.S.C. 926. THE LUMP-SUM LEAVE PAYMENT SHOULD INCLUDE THE PREMIUM COMPENSATION FOR ONLY SUCH PART OF THE PERIOD FOR WHICH THE PREMIUM COMPENSATION WOULD HAVE BEEN PAID HAD THE EMPLOYEE REMAINED IN THE SERVICE. EVEN THOUGH THE CHANGE IS EFFECTED PRIOR TO EXPIRATION OF THE PERIOD COVERED BY THE LUMP-SUM PAYMENT. IN CASE OF EMPLOYEES WHO ARE SEPARATED DURING AN EXTENDED PERIOD FOR WHICH PREMIUM COMPENSATION ON A PERCENTAGE BASIS PAYABLE UNDER 5 U.S.C. 926.

B-136189, AUGUST 26, 1958, 38 COMP. GEN. 161

CIVILIAN PERSONNEL - LUMP-SUM LEAVE PAYMENTS - IRREGULAR, UNSCHEDULED OVERTIME - PERCENTAGE BASIS DETERMINATION PREMIUM COMPENSATION PAID ON A PERCENTAGE BASIS FOR TEMPORARY PERIODS UNDER SUBSECTIONS (1) AND (2) OF SECTION 401 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS ADDED BY SECTION 208 (A) OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 926, TO EMPLOYEES FOR FOREST-FIRE DETECTION DUTY IN ADDITION TO THEIR REGULAR 40-HOUR WORK PERIODS IS FOR INCLUSION IN LUMP-SUM LEAVE PAYMENTS MADE TO THE EMPLOYEES. IN CASE EMPLOYEES ARE SEPARATED DURING THE PREDETERMINED PERIOD FOR WHICH PREMIUM COMPENSATION ON A PERCENTAGE BASIS IS PAYABLE UNDER 5 U.S.C. 926, THE LUMP-SUM LEAVE PAYMENT SHOULD INCLUDE THE PREMIUM COMPENSATION FOR ONLY SUCH PART OF THE PERIOD FOR WHICH THE PREMIUM COMPENSATION WOULD HAVE BEEN PAID HAD THE EMPLOYEE REMAINED IN THE SERVICE, ANY ADMINISTRATIVE DETERMINATION TO EXTEND OR SHORTEN THE PERIOD INITIALLY DETERMINED AFTER DATE OF THE EMPLOYEE'S SEPARATION WOULD NOT AFFECT THE AMOUNT OF THE LUMP- SUM LEAVE PAYMENT, EVEN THOUGH THE CHANGE IS EFFECTED PRIOR TO EXPIRATION OF THE PERIOD COVERED BY THE LUMP-SUM PAYMENT. IN CASE OF EMPLOYEES WHO ARE SEPARATED DURING AN EXTENDED PERIOD FOR WHICH PREMIUM COMPENSATION ON A PERCENTAGE BASIS PAYABLE UNDER 5 U.S.C. 926, THE LUMP-SUM LEAVE PAYMENT SHOULD REFLECT THE ADDITIONAL COMPENSATION TO THE END OF THE CURRENTLY EFFECTIVE EXTENDED PERIOD; HOWEVER, EMPLOYEES WHO REMAIN IN THE SERVICE UNTIL THE END OF A PERIOD FOR WHICH PREMIUM COMPENSATION IS PAYABLE, INCLUDING AN EXTENSION OF THE INITIAL PERIOD, ARE NOT ENTITLED TO HAVE PREMIUM COMPENSATION INCLUDED IN THE LUMP-SUM LEAVE PAYMENT.

TO THE SECRETARY OF AGRICULTURE, AUGUST 26, 1958:

THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER OF MAY 15, 1958, REQUESTS OUR DECISION ON CERTAIN QUESTIONS, HEREINAFTER DETAILED, CONCERNING THE RATE OF COMPENSATION TO BE USED IN COMPUTING LUMP-SUM PAYMENTS FOR ANNUAL LEAVE UPON SEPARATION IN THE CASE OF FOREST SERVICE EMPLOYEES EMPLOYED FOR OR ASSIGNED TO FOREST-FIRE DETECTION AND SUPPRESSION DUTIES ON A SEASONAL BASIS. THE QUESTION ARISES BECAUSE THE EMPLOYEES ARE PAID FOR TEMPORARY PERIODS PREMIUM COMPENSATION ON A PERCENTAGE BASIS (REFERRED TO IN THE LETTER AS A "DIFFERENTIAL") UNDER AUTHORITY OF SUBSECTIONS (1) AND (2) OF SECTION 401 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS ADDED BY SECTION 208 (A) OF THE ACT OF SEPTEMBER 1, 1954, ( PUBLIC LAW 763), 68 STAT. 1111, 5 U.S.C. 926, IN LIEU OF PREMIUM COMPENSATION UNDER OTHER PROVISIONS OF LAW FOR OVERTIME, NIGHT AND HOLIDAY DUTY; AND BECAUSE OF THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944, AS AMENDED, 5 U.S.C. 61B, THAT A LUMP-SUM PAYMENT FOR LEAVE SHALL EQUAL THE COMPENSATION THAT THE EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE LEAVE.

IT APPEARS FROM THE LETTER THAT THE EMPLOYEES PAID PERCENTAGE PREMIUM COMPENSATION UNDER SUBSECTION (1) OF THE CITED STATUTORY PROVISIONS ARE DIVIDED INTO TWO CLASSES, NAMELY, SEASONAL EMPLOYEES, FOR THE MOST PART, HIRED TO ACT AS OBSERVERS AT FIRE LOOKOUTS AND FOR PATROL DUTY; AND REGULAR AND SEASONAL EMPLOYEES WHO, IN ADDITION TO THE REGULAR 40-HOUR WORK PERIOD ARE SCHEDULED TO STAND BY IN A READY/FOR/WORK STATUS FOR POSSIBLE FIRE SUPPRESSION DUTY FOR A FEW HOURS EACH WORKDAY AND ON SATURDAYS, SUNDAYS OR HOLIDAYS, DEPENDING ON THE FIRE DANGER. THE PERCENTAGE PREMIUM COMPENSATION IS PAID TO THE FIRST CLASS OF EMPLOYEES UNDER SECTION 25.254 (A) (2) OF THE FEDERAL EMPLOYEES PAY REGULATIONS AND TO THE SECOND CLASS UNDER SECTION 25.254 (A) (3) OF SUCH REGULATIONS. ALSO, PAYMENTS OF PERCENTAGE PREMIUM COMPENSATION ARE MADE FOR ESTABLISHED PERIODS UNDER THE PROVISIONS OF SUBSECTION (2) OF SECTION 401 OF THE 1945 STATUTE, AS AMENDED, IN THE CASE OF CERTAIN KEY PERSONNEL ON ACCOUNT OF NECESSITY FOR UNSCHEDULED OVERTIME DUTY.

THE PERCENTAGE RATES FOR THE SELECTED SEASONAL PERIOD DURING WHICH THE PREMIUM COMPENSATION IS TO BE PAID ARE SAID TO BE BASED UPON THE ANTICIPATED AVERAGE HOURS OF DUTY FOR THE ENTIRE PERIOD. THE ESTIMATE IS BASED UPON THE HISTORICAL RECORDS FOR EACH POSITION, AVERAGE WEATHER CONDITIONS, AND JUDGMENT, TAKING INTO ACCOUNT CURRENT CHANGES IN METHODS OF FIRE DETECTION AND SUPPRESSION. THE ASSISTANT SECRETARY POINTS OUT, HOWEVER, THAT THE ACTUAL HOURS OF DUTY VARY FROM DAY TO DAY OR FROM WEEK TO WEEK DEPENDING UPON FLUCTUATIONS IN FACTORS AFFECTING FIRE RISK SUCH AS RAIN, NUMBER OF VISITORS IN THE FORESTS, ETC.; AND THAT DURING BRIEF PERIODS OF REDUCED FIRE DANGER WHEN STANDBY DUTY IS UNNECESSARY, THE EMPLOYEES ARE ASSIGNED OTHER TASKS FOR STANDARD 8-HOUR WORKDAYS. FURTHERMORE, THE SEASONS MAY BE LONGER OR SHORTER THAN ANTICIPATED WHEN DEPARTURES FROM AVERAGE CONDITIONS OCCUR.

THE NUMBERED QUESTIONS PRESENTED FOR OUR DECISION, TOGETHER WITH THE LAST PARAGRAPH OF THE ASSISTANT SECRETARY'S LETTER, ARE AS FOLLOWS:

1. SHOULD THE DIFFERENTIAL BE INCLUDED IN THE LUMP SUM LEAVE PAYMENT MADE TO EMPLOYEES DESCRIBED ABOVE WHO RESIGN OR ARE SEPARATED DURING THE DIFFERENTIAL PERIOD?

2. IF YOUR ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, AND IF IT CAN BE DETERMINED AT THE TIME OF SEPARATION THAT THE EMPLOYEE WOULD HAVE RECEIVED THE DIFFERENTIAL FOR ONLY A PART OF THE PERIOD COVERED BY THE LUMP SUM LEAVE PAYMENT, IS IT PROPER TO INCLUDE IN THE LUMP SUM LEAVE PAYMENT ONLY THAT PART OF THE LEAVE PERIOD FOR WHICH THE EMPLOYEE WOULD HAVE BEEN PAID A DIFFERENTIAL?

3. IF THE ANSWERS TO QUESTIONS 1 AND 2 ARE IN THE AFFIRMATIVE, SHOULD THE LUMP SUM PAYMENT INCLUDE THE DIFFERENTIAL FOR THE ENTIRE LEAVE PERIOD WHERE IT IS NOT KNOWN AT THE TIME OF RESIGNATION, BECAUSE OF CONDITIONS BEYOND THE DEPARTMENT'S CONTROL, HOW LONG THE DIFFERENTIAL WILL BE PAID?

THIS PROBLEM ARISES IN CONNECTION WITH A DETERMINATION AS TO WHETHER THE DIFFERENTIAL WOULD HAVE BEEN CONTINUED FOR A PARTICULAR EMPLOYEE IN CASES WHERE BECAUSE OF VARYING FIRE CONDITIONS, SOME EMPLOYEES IN AN ADMINISTRATIVE UNIT CONTINUE SUBJECT TO THE DIFFERENTIAL WHILE OTHERS IN THE SAME UNIT RETURN TO A 40-HOUR A WEEK STATUS WITH OVERTIME PAY FOR WORK IN EXCESS OF 40 HOURS A WEEK. AS THE SEASON NEARS ITS CLOSE, MANY TEMPORARY SHIFTS OF ASSIGNMENT OCCUR TO MEET THE PROBLEMS OF DECREASING FORCES AND VARYING FIRE RISK, DEPENDING UPON ALTITUDE AND OTHER PHYSICAL FACTORS. IN SUCH CASES, SHOULD THE LUMP SUM PAYMENT INCLUDE THE DIFFERENTIAL? IF SO SHOULD IT BE COMPUTED FOR THE ENTIRE LEAVE PERIOD WHERE IT IS NOT KNOWN AT THE TIME OF RESIGNATION HOW LONG THE DIFFERENTIAL PERIOD WILL CONTINUE FOR SOME OF THE EMPLOYEES.

WE HELD IN 36 COMP. GEN. 18 THAT THE PREMIUM PERCENTAGE COMPENSATION FOR IRREGULAR OR UNSCHEDULED OVERTIME AUTHORIZED BY SECTION 401 (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, CITED ABOVE, WHICH IS BEING RECEIVED BY AN EMPLOYEE SHOULD BE INCLUDED IN A LUMP-SUM PAYMENT FOR HIS ANNUAL LEAVE UPON SEPARATION. NO REASON IS APPARENT FOR APPLYING A DIFFERENT RULE HERE WHETHER THE COMPENSATION BE PAID UNDER SUBSECTION (1) OR SUBSECTION (2) OF SECTION 401. IN THIS CONNECTION WE MAY REFER TO SUBSECTIONS (C) AND (E) OF SECTION 25.272 OF THE PAY REGULATIONS WHICH PROVIDED FOR CONTINUATION OF THE PERCENTAGE COMPENSATION DURING CERTAIN PERIODS OF RELIEF FROM STANDBY DUTY AND DURING PERIODS OF LEAVE WITH PAY, INDICATING THAT ACTUAL PERFORMANCE OF DUTY IS NOT ALWAYS A CONDITION TO ENTITLEMENT TO THE PREMIUM COMPENSATION. QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE, SUBJECT TO THE QUALIFICATIONS SET FORTH IN THE ANSWERS TO THE REMAINING QUESTIONS.

QUESTIONS 2 AND 3 WILL BE CONSIDERED TOGETHER. THE GENERAL RULE IS THAT THE LUMP-SUM PAYMENT FOR LEAVE 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 THE TIME WHICH WOULD HAVE AFFECTED HIS COMPENSATION HAD HE REMAINED IN THE SERVICE FOR THE PERIOD COVERED BY THE LEAVE. 26 COMP. GEN. 102,105. WE NOTE FROM THE ASSISTANT SECRETARY'S LETTER THAT THE PERCENTAGE PREMIUM COMPENSATION IS PAID ONLY FOR ,SELECTED PERIODS.' WHILE SUCH PREDETERMINED PERIODS MAY EVENTUALLY BE LENGTHENED OR SHORTENED DUE TO CHANGED CONDITIONS, NEVERTHELESS, AN INDISPENSABLE REQUIREMENT OF SECTIONS 25.253 AND 25.254 OF THE PAY REGULATIONS, READ AS A WHOLE, IS THAT, IN THE FIRST INSTANCE, AN ADMINISTRATIVE DETERMINATION COVERING A DEFINITE PERIOD OF TIME SHALL BE MADE FOR EACH POSITION OR GROUP OF POSITIONS TO WHICH THE SAME CONDITIONS APPLY, IN ORDER TO ARRIVE AT A REASONABLY ACCURATE ESTIMATE OF THE AVERAGE OF WEEKLY HOURS OF DUTY. IF AN EMPLOYEE IS SEPARATED DURING THIS PRESELECTED PERIOD FOR RECEIPT OF PREMIUM COMPENSATION--- ASSUMING THAT NO CHANGE THEN HAD BEEN MADE IN THE INITIAL DETERMINATION--- THE LUMP-SUM PAYMENT FOR LEAVE SHOULD INCLUDE PERCENTAGE PREMIUM COMPENSATION ONLY FOR SUCH PART OF THE PERIOD COVERED BY THE LEAVE AS TO WHICH THE PREMIUM COMPENSATION WOULD HAVE APPLIED HAD HE REMAINED IN SERVICE. THE AMOUNT OF THE LUMP-SUM PAYMENT WOULD NOT BE AFFECTED BY AN EXTENSION OR DIMINUTION OF THE INITIAL PERIOD DETERMINED TO BE NECESSARY AFTER THE DATE OF SEPARATION, EVEN THOUGH THE CHANGE BE EFFECTED PRIOR TO EXPIRATION OF THE PERIOD COVERED BY THE LUMP-SUM PAYMENT. IF THE SEPARATION OCCURS AFTER SUCH INITIAL PERIOD BUT DURING AN EXTENSION, THE LUMP-SUM PAYMENT SHOULD REFLECT THE ADDITIONAL COMPENSATION TO THE END OF THE CURRENTLY EFFECTIVE EXTENDED PERIOD. IT FOLLOWS AS A MATTER OF COURSE THAT AN EMPLOYEE WHO REMAINS IN SERVICE UNTIL THE END OF THE "DIFFERENTIAL PERIOD" INCLUDING ANY EXTENSION OF THE INITIAL PERIOD IS NOT ENTITLED TO HAVE PREMIUM COMPENSATION INCLUDED IN HIS LUMP-SUM PAYMENT FOR LEAVE. SEE SECTION 25.272 (B) OF THE PAY REGULATIONS WHICH PROVIDES THAT AN EMPLOYEE IN A POSITION IN WHICH CONDITIONS WARRANTING ADDITIONAL COMPENSATION EXIST ONLY DURING A CERTAIN PERIOD OF THE YEAR, SUCH AS DURING A GIVEN SEASON, SHALL BE PAID THE COMPENSATION ONLY DURING THE PERIOD HE IS SUBJECT TO SUCH CONDITIONS; AND CF. 27 COMP. GEN. 341. QUESTIONS 1 AND 2 ANSWERED ACCORDINGLY.

REFERRING TO THE LAST PARAGRAPH OF THE LETTER QUOTED ABOVE, OUR VIEW IS, AS HEREINBEFORE INDICATED, THAT THE REGULATIONS REQUIRE A PREDETERMINATION OF THE SEASONAL "DIFFERENTIAL PERIOD" FOR EACH POSITION. THE ASSISTANT SECRETARY SAYS IN THE FIFTH PARAGRAPH OF HIS LETTER THAT THE INITIAL ESTIMATES OF THE AVERAGE HOURS FOR THE PERIOD ARE BASED UPON HISTORICAL RECORDS FOR EACH POSITION, AND, THEREFORE, WE ASSUME THAT THE REQUIREMENT MENTIONED IS BEING MET. WE CONCLUDE THAT PREMIUM COMPENSATION SHOULD BE INCLUDED IN THE LUMP-SUM PAYMENT FOR LEAVE ACCORDING TO THE UNEXPIRED PORTION OF THE PREDETERMINED "DIFFERENTIAL PERIOD," OR ANY EXTENSION THEREOF, FOR THE PARTICULAR POSITION OCCUPIED BY THE EMPLOYEE ON THE DATE OF SEPARATION, UNDER THE RULES STATED IN OUR ANSWERS TO QUESTIONS 1 AND 2.