B-138963, APRIL 9, 1959, 38 COMP. GEN. 684

B-138963, APRIL 9, 1959, 38 COMP. GEN. 684

CIVILIAN PERSONNEL - COMPENSATION - REDUCTION IN GRADE - TEMPORARY PROMOTIONS - SAVED PAY CAREER EMPLOYEES WHO HAVE THEIR TEMPORARY REVOCABLE PROMOTIONS FOR INDEFINITE PERIODS, USUALLY NOT TO EXCEED ONE YEAR IN DURATION, EXTENDED SO THAT THEY SERVE TWO OR MORE YEARS IN A HIGHER GRADE BEFORE REDUCTION TO THEIR FORMER GRADES ARE ENTITLED TO THE SALARY RETENTION BENEFITS PROVIDED UNDER SECTION 507 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1107, FOR EMPLOYEES WHO HAVE SERVED TWO CONTINUOUS YEARS PRIOR TO REDUCTION IN GRADE.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, APRIL 9, 1959:

LETTER OF MARCH 9, 1959, FROM THE ACTING CHAIRMAN OF THE COMMISSION, REQUESTS OUR DECISION WHETHER CERTAIN EMPLOYEES OF THE BUREAU OF THE CENSUS ARE ENTITLED TO THE SALARY SAVINGS BENEFITS OF PUBLIC LAW 85 737, 5 U.S.C. 1107, APPROVED AUGUST 23, 1958.

WE UNDERSTAND THAT THE EMPLOYEES CONCERNED ARE CAREER EMPLOYEES OF THE BUREAU OCCUPYING CLASSIFICATION ACT, 5 U.S.C. 1071 NOTE, POSITION. WHEN THE CENSUS BUREAU IS TAKING A SPECIAL CENSUS OR A REGULAR CENSUS, THE INCREASED WORKLOAD AND THE LARGE NUMBER OF TEMPORARY EMPLOYEES RESULT IN A NEED FOR A GREATER THAN NORMAL NUMBER OF SUPERVISORY OR OTHER HIGH LEVEL POSITIONS. THE BUREAU HAS BEEN REQUIRING REGULAR EMPLOYEES AS A CONDITION TO THEIR BEING PROMOTED TO THESE POSITIONS, TO SIGN AN AGREEMENT THAT THE PROMOTION IS UNDERSTOOD TO BE ON A TEMPORARY REVOCABLE BASIS FOR AN INDETERMINATE PERIOD NOT TO EXCEED A CERTAIN PERIOD, USUALLY ONE YEAR. THE GREAT MAJORITY OF SUCH PROMOTIONS ARE TERMINATED WITHIN THE ONE-YEAR PERIOD SPECIFIED. HOWEVER, IT IS OCCASIONALLY NECESSARY TO EXTEND A PROMOTION SO THAT SOME EMPLOYEES MAY ACTUALLY SERVE TWO YEARS OR MORE IN THE HIGHER GRADE.

BOTH PUBLIC LAW 594, 5 U.S.C. 1107, APPROVED JUNE 18, 1956, AND PUBLIC LAW 85-737, APPROVED AUGUST 23, 1958, WERE DESIGNED TO CORRECT CERTAIN INEQUITIES STEMMING FROM THE CLASSIFICATION ACT OF 1949. THE FORMER ACT TOOK COGNIZANCE OF THE RESULT OF RECLASSIFICATION ACTIONS WHICH AFTER A PERIOD OF TWO OR MORE YEARS CAUSED A REDUCTION IN THE SALARY OF AN EMPLOYEE.

SECTION 507 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1107, AS AMENDED BY SECTION 1 (A) OF PUBLIC LAW 85-737, PROVIDES SO FAR AS HERE PERTINENT THAT ANY EMPLOYEE WHO AT ANY TIME AFTER JUNE 17, 1956, IS REDUCED IN GRADE FOR OTHER THAN PERSONAL CAUSE, AT HIS OWN REQUEST, OR AS A CONSEQUENCE OF A REDUCTION IN FORCE, AND WHO, FOR TWO CONTINUOUS YEARS IMMEDIATELY PRIOR TO SUCH REDUCTION IN GRADE SERVED IN THE SAME DEPARTMENT AND IN THE SAME OR HIGHER GRADE, SHALL BE ENTITLED TO RECEIVE FOR TWO YEARS THE RATE OF BASIC COMPENSATION TO WHICH HE WAS ENTITLED IMMEDIATELY PRIOR TO SUCH REDUCTION IN GRADE.

WHILE WE HAVE CONSIDERABLE DOUBT THAT THE CONGRESS INTENDED TO GRANT SALARY PROTECTION TO EMPLOYEES WHO RECEIVE TEMPORARY PROMOTIONS UNDER THE CIRCUMSTANCES OUTLINED IN YOUR LETTER, THE EMPLOYEES REFERRED TO SERVE FOR TWO YEARS OR MORE IN THE GRADES TO WHICH THEY WERE PROMOTED AND ARE NOT AMONG THOSE EXPRESSLY EXCEPTED FROM THE OPERATION OF THE ACT BY SUBSECTION 507 (A) (3), 5 U.S.C. 1107 (A) (3). ASSUMING THAT THE EMPLOYEES OTHERWISE QUALIFY, THERE IS NO BASIS UNDER THE STATUTE FOR DENYING THEM ENTITLEMENT TO THE BENEFITS OF THE ACT UPON REDUCTION TO THEIR FORMER GRADES AFTER HAVING SERVED TWO YEARS OR MORE IN HIGHER GRADES UNDER TEMPORARY PROMOTIONS.