B-150041, OCTOBER 12, 1962, 42 COMP. GEN. 202

B-150041: Oct 12, 1962

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ARE REGARDED AS HAVING A VESTED RIGHT TO THE STEP-INCREASE BEFORE THE NEW ACT WENT INTO EFFECT AND. ARE ENTITLED TO HAVE THEIR COMPENSATION FIXED AT THE NEXT STEP RATE WITHOUT REGARD TO THE ADDITIONAL WAITING PERIOD REQUIRED UNDER THE AMENDATORY ACT. ENCLOSES "PAYROLL CHANGE SLIP" AND "VOUCHER AND SCHEDULE OF PAYMENTS" WHEREIN PAYMENT IS PROPOSED BEGINNING OCTOBER 14. REQUESTS OUR DECISION WHETHER IT IS PROPER TO PROCESS THE INCREASE FOR PAYMENT. WILLIS IS CURRENTLY OCCUPYING A POSITION IN GRADE GS-12. WILLIS WILL HAVE COMPLETED THE REQUIRED PERIOD OF SERVICE (78 CALENDAR WEEKS) FOR ADVANCEMENT TO THE FIFTH STEP OF GRADE GS-12 AT MIDNIGHT ON OCTOBER 13. THE STEP-INCREASE HERE INVOLVED IS REQUIRED UNDER THE LAW IN EFFECT ON OCTOBER 13 TO BE EFFECTIVE AT THE BEGINNING OF THE FIRST PAY PERIOD OCCURRING AFTER COMPLETION OF THE WAITING PERIOD OR OCTOBER 14.

B-150041, OCTOBER 12, 1962, 42 COMP. GEN. 202

COMPENSATION - PERIODIC STEP-INCREASES - WAITING PERIOD COMMENCEMENT - EFFECT OF AMENDATORY ACT. EMPLOYEES WHO COMPLETED THE REQUIRED SERVICE FOR A STEP-INCREASE ON OCTOBER 13, 1962, THE DAY BEFORE THE EFFECTIVE DATE OF THE CLASSIFICATION ACT AMENDMENTS OF 1962, WHICH AMENDED TITLE VII OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1121-1125, TO INCREASE THE WAITING PERIOD FOR CERTAIN STEP-INCREASES, ARE REGARDED AS HAVING A VESTED RIGHT TO THE STEP-INCREASE BEFORE THE NEW ACT WENT INTO EFFECT AND, ACCORDINGLY, ARE ENTITLED TO HAVE THEIR COMPENSATION FIXED AT THE NEXT STEP RATE WITHOUT REGARD TO THE ADDITIONAL WAITING PERIOD REQUIRED UNDER THE AMENDATORY ACT.

TO W. B. UHLENHOP, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 12, 1962:

YOUR LETTER OF OCTOBER 4, 1962, ENCLOSES "PAYROLL CHANGE SLIP" AND "VOUCHER AND SCHEDULE OF PAYMENTS" WHEREIN PAYMENT IS PROPOSED BEGINNING OCTOBER 14, 1962, OF ADDITIONAL COMPENSATION REPRESENTING A WITHIN-GRADE INCREASE TO GERALD T. WILLIS, JR., AND REQUESTS OUR DECISION WHETHER IT IS PROPER TO PROCESS THE INCREASE FOR PAYMENT.

THE RECORD SHOWS THAT MR. WILLIS IS CURRENTLY OCCUPYING A POSITION IN GRADE GS-12, STEP 4, AT A SALARY RATE OF $9,735 PER ANNUM. UNDER THE PROVISIONS OF SECTION 701 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1121, IN EFFECT PRIOR TO OCTOBER 14, 1962, MR. WILLIS WILL HAVE COMPLETED THE REQUIRED PERIOD OF SERVICE (78 CALENDAR WEEKS) FOR ADVANCEMENT TO THE FIFTH STEP OF GRADE GS-12 AT MIDNIGHT ON OCTOBER 13, 1962. THE STEP-INCREASE HERE INVOLVED IS REQUIRED UNDER THE LAW IN EFFECT ON OCTOBER 13 TO BE EFFECTIVE AT THE BEGINNING OF THE FIRST PAY PERIOD OCCURRING AFTER COMPLETION OF THE WAITING PERIOD OR OCTOBER 14, 1962. SINCE THE NEW CLASSIFICATION ACT AMENDMENTS OF 1962, PUBLIC LAW 87-793, APPROVED OCTOBER 11, 1962, WHICH INCREASES THE WAITING PERIOD FOR STEP 5 FROM 78 CALENDAR WEEKS TO 104 CALENDAR WEEKS, WILL ALSO GO INTO EFFECT FOR THE EMPLOYEE ON OCTOBER 14, 1962, THE QUESTION ARISES AS TO WHETHER IT IS PROPER TO GRANT SUCH STEP INCREASE WITHOUT THE EMPLOYEE COMPLETING AN ADDITIONAL 26 WEEKS OF SERVICE.

THE EMPLOYEE WILL HAVE COMPLETED THE 78 CALENDAR WEEKS OF SERVICE BEFORE THE NEW SALARY ADJUSTMENT ACT GOES INTO EFFECT, AND HIS RIGHT TO A STEP- INCREASE WILL BECOME VESTED AT MIDNIGHT ON OCTOBER 13, 1962. TO HOLD THAT BY REASON OF A STATUTORY PROVISION EFFECTIVE ON OCTOBER 14, 1962, HE MUST SERVE AN ADDITIONAL 26 WEEKS BEFORE BECOMING ENTITLED TO ADVANCEMENT TO STEP 5 OF HIS GRADE WOULD DISTURB A VESTED RIGHT.

WE HAVE HELD THAT A LONGEVITY STEP-INCREASE BECOMES FIXED AND VESTED ON THE LAST DAY OF THE 3-YEAR REQUIRED WAITING PERIOD SO AS TO ENTITLE AN EMPLOYEE SEPARATED ON THAT DATE TO HAVE SUCH INCREASE INCLUDED IN HIS LUMP -SUM PAYMENT FOR ACCRUED ANNUAL LEAVE. B-145902, JUNE 28, 1961. ALSO, CONSISTENT WITH COURT DECISIONS WE HAVE HELD THAT A STATUTE CANNOT TAKE AWAY A VESTED RIGHT. 34 COMP. GEN. 149; 38 ID. 103.

ACCORDINGLY, IT IS OUR OPINION THAT MR. WILLIS IS ENTITLED TO HAVE HIS SALARY FIXED IN STEP 5 OF GRADE GS-12 ON OCTOBER 14, 1962, $10,735, WITHOUT REGARD TO THE PROVISION OF THE CLASSIFICATION ACT AMENDMENTS OF 1962, WHICH ON THAT DATE INCREASES THE WAITING PERIOD FOR STEP INCREASE FOR SALARY RATES IN HIS CATEGORY FROM 78 TO 104 CALENDAR WEEKS.

THE VOUCHER, WITH ATTACHMENTS, IS RETURNED AND MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.