B-152061, MAY 7, 1964
Highlights
MAY CONTINUE TO BE PAID TO EMPLOYEES WHO ARE ON EXTENDED LEAVE WITH PAY. OUR RULING BASED UPON THE CONTROLLING STATUTE AND REGULATIONS OF THE CIVIL SERVICE COMMISSION WAS RENDERED UPON THE REQUEST OF THE ATTORNEY GENERAL AND WAS NOT DIRECTED TOWARD A SPECIFIC FACTUAL SITUATION. WE UNDERSTAND THAT IN THE DEPARTMENT OF JUSTICE DETERMINATIONS CONCERNING DEPUTY MARSHALS ENTITLEMENT UNDER THE STATUTE ARE REVIEWED EVERY FOURTH PAY PERIOD AND THAT RATES ARE REVISED OR PAYMENTS OF ADDITIONAL COMPENSATION CONTINUED OR DISCONTINUED ACCORDING TO OVERTIME REQUIREMENTS IN THE PRECEDING PERIOD OR EXPECTATIONS REGARDING THE SUCCEEDING PERIOD. AN EMPLOYEE WHO ACTUALLY IS WORKING. MAY FIND THAT HIS DUTIES HAVE NOT OR REASONABLY MAY NOT CALL FOR ANY SUBSTANTIAL AMOUNT OF IRREGULAR.
B-152061, MAY 7, 1964
TO MR. ALBERT C. BAIN:
YOUR LETTER OF JANUARY 20, 1964, WHICH HAS BEEN THE SUBJECT OF CORRESPONDENCE BETWEEN OUR OFFICE AND THE DEPARTMENT OF JUSTICE, REFERS TO OUR DECISION OF OCTOBER 11, 1963, B-152061, TO THE ATTORNEY GENERAL. THAT DECISION CONCERNED THE QUESTION OF WHETHER THE ADDITIONAL ANNUAL COMPENSATION AUTHORIZED BY SECTION 401 (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 926 (2), MAY CONTINUE TO BE PAID TO EMPLOYEES WHO ARE ON EXTENDED LEAVE WITH PAY.
YOU EXPRESS THE VIEW THAT OUR DECISION WHEN APPLIED TO THE FACTS IN YOUR CASE LEADS TO AN UNEQUITABLE AND UNJUST RESULT. OUR RULING BASED UPON THE CONTROLLING STATUTE AND REGULATIONS OF THE CIVIL SERVICE COMMISSION WAS RENDERED UPON THE REQUEST OF THE ATTORNEY GENERAL AND WAS NOT DIRECTED TOWARD A SPECIFIC FACTUAL SITUATION.
WE UNDERSTAND THAT IN THE DEPARTMENT OF JUSTICE DETERMINATIONS CONCERNING DEPUTY MARSHALS ENTITLEMENT UNDER THE STATUTE ARE REVIEWED EVERY FOURTH PAY PERIOD AND THAT RATES ARE REVISED OR PAYMENTS OF ADDITIONAL COMPENSATION CONTINUED OR DISCONTINUED ACCORDING TO OVERTIME REQUIREMENTS IN THE PRECEDING PERIOD OR EXPECTATIONS REGARDING THE SUCCEEDING PERIOD.
THUS, AN EMPLOYEE WHO ACTUALLY IS WORKING, BECAUSE OF CIRCUMSTANCES WHICH CAN BE BEYOND HIS CONTROL AND THAT OF THE DEPARTMENT, MAY FIND THAT HIS DUTIES HAVE NOT OR REASONABLY MAY NOT CALL FOR ANY SUBSTANTIAL AMOUNT OF IRREGULAR, UNSCHEDULED, OVERTIME DUTY DURING A 4 PAY PERIOD UNIT. IN SUCH A SITUATION, HE NO LONGER WOULD MEET THE CONDITIONS PROVIDED BY LAW AND REGULATIONS FOR THE PAYMENT OF ADDITIONAL COMPENSATION AND, THEREFORE, SUCH PAYMENT MUST BE DISCONTINUED AT THE EXPIRATION OF THE PERIOD OF HIS ELIGIBILITY. THAT NORMALLY WOULD BE THE END OF THE 4 PAY PERIOD UNIT FOLLOWING THAT IN WHICH HE LAST HAD QUALIFIED FOR ADDITIONAL COMPENSATION. THIS WOULD BE SO REGARDLESS OF WHETHER HE WAS ACTUALLY AT WORK, ON ANNUAL LEAVE OR SICK LEAVE.
THE DEPARTMENT OF JUSTICE INFORMALLY ADVISED US THAT YOU WERE PAID ADDITIONAL COMPENSATION DURING THE PERIOD OF YOUR ELIGIBILITY THEREFOR, NOTWITHSTANDING THAT YOU WERE ON SICK LEAVE PENDING YOUR RETIREMENT ON DISABILITY. SUCH PAYMENT WAS DISCONTINUED, HOWEVER, AT THE BEGINNING OF THE NEXT FOLLOWING 4 PAY PERIOD REVIEW BASED UPON THE REASONABLE EXPECTATION THAT YOU NO LONGER WOULD PERFORM SUBSTANTIAL AMOUNTS OF IRREGULAR, UNSCHEDULED, OVERTIME WORK.
THAT ACTION WOULD BE IN CONSONANCE WITH OUR DECISION OF OCTOBER 11, 1963, B-152061, A COPY OF WHICH IS ENCLOSED. SIMILAR CASES ARISING SINCE OUR DECISION PRESUMABLY HAVE BEEN HANDLED IN THE SAME MANNER.