B-158876, JULY 27, 1966, 46 COMP. GEN. 96

B-158876: Jul 27, 1966

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ALTHOUGH ALASKA RAILROAD EMPLOYEES ARE CIVILIAN OFFICERS OR EMPLOYEES IN OR UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT AND ARE ELIGIBLE FOR SEVERANCE PAY UNDER SECTION 9 OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965. THEY ARE NOT ELIGIBLE FOR SEVERANCE PAY. ALASKA RAILROAD EMPLOYEES ARE CIVILIAN OFFICERS OR EMPLOYEES IN OR UNDER THE EXECUTIVE BRANCH OF THE UNITED STATES GOVERNMENT AND AS SUCH THEY ARE ELIGIBLE FOR SEVERANCE PAY UNDER THE PROVISIONS OF SECTION 9 OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965 IF THEY OTHERWISE ARE QUALIFIED FOR SUCH BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THAT SECTION. INIMPLEMENTING SUCH REDUCTION IN FORCE YOUR DEPUTY ASSISTANT SECRETARY SAYS THAT EMPLOYEES WITH 1 YEAR OF SERVICE OR MORE ARE SELECTED FOR RELEASE IN ACCORDANCE WITH RETENTION ROSTERS WHICH COMPLY WITH THE REQUIREMENTS OF THE APPLICABLE LABOR AGREEMENT-APPARENTLY SUCH RETENTION ROSTERS ALSO COMPLY WITH THE REQUIREMENT OF THE VETERANS' PREFERENCE ACT OF 1944.

B-158876, JULY 27, 1966, 46 COMP. GEN. 96

ALASKA RAILROAD - EMPLOYEES - SEVERANCE PAY - INVOLUNTARY SEPARATION REQUIREMENT. ALTHOUGH ALASKA RAILROAD EMPLOYEES ARE CIVILIAN OFFICERS OR EMPLOYEES IN OR UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT AND ARE ELIGIBLE FOR SEVERANCE PAY UNDER SECTION 9 OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965, WHEN FURLOUGHED AND PLACED ON RETENTION ROSTERS COMPLYING WITH THE VETERANS' PREFERENCE ACT OF 1944 AND ENTITLED TO RESTORATION IN THE ORDER OF SENIORITY, COVERAGE UNDER GOVERNMENT LIFE INSURANCE WITHOUT CHARGE FOR UP TO 1 YEAR, AND MEDICAL BENEFITS FOR 4 MONTHS, THEY ARE NOT ELIGIBLE FOR SEVERANCE PAY, THE 1965 ACT PRESCRIBING THAT TO QUALIFY FOR SEVERANCE PAY AN EMPLOYEE MUST BE INVOLUNTARILY SEPARATED FROM THE SERVICE AND CONTAINING NO REFERENCE TO SEVERANCE PAY FOR EMPLOYEES INVOLUNTARILY PLACED IN A FURLOUGH OR OTHER NONPAY STATUS.

TO THE SECRETARY OF THE INTERIOR, JULY 27, 1966:

WE REFER TO THE LETTER OF YOUR DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION DATED MAY 31, 1966, CONCERNING THE ENTITLEMENT OF CERTAIN FURLOUGHED EMPLOYEES OF THE ALASKA RAILROAD, DEPARTMENT OF THE INTERIOR, TO SEVERANCE PAY UNDER THE PROVISIONS OF SECTION 9 OF THE FEDERAL EMPLOYEES PAY ACT OF 1965, APPROVED OCTOBER 29, 1965, PUBLIC LAW 89-301, 79 STAT. 1118, 5 U.S.C. 1117.

ALASKA RAILROAD EMPLOYEES ARE CIVILIAN OFFICERS OR EMPLOYEES IN OR UNDER THE EXECUTIVE BRANCH OF THE UNITED STATES GOVERNMENT AND AS SUCH THEY ARE ELIGIBLE FOR SEVERANCE PAY UNDER THE PROVISIONS OF SECTION 9 OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965 IF THEY OTHERWISE ARE QUALIFIED FOR SUCH BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THAT SECTION.

WITH REGARD TO THE PARTICULAR EMPLOYEES HERE INVOLVED THE DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION SAYS THAT A DECLINE IN TRAFFIC HAS NECESSITATED A REDUCTION IN THE RAILROAD'S WORK FORCE. INIMPLEMENTING SUCH REDUCTION IN FORCE YOUR DEPUTY ASSISTANT SECRETARY SAYS THAT EMPLOYEES WITH 1 YEAR OF SERVICE OR MORE ARE SELECTED FOR RELEASE IN ACCORDANCE WITH RETENTION ROSTERS WHICH COMPLY WITH THE REQUIREMENTS OF THE APPLICABLE LABOR AGREEMENT-APPARENTLY SUCH RETENTION ROSTERS ALSO COMPLY WITH THE REQUIREMENT OF THE VETERANS' PREFERENCE ACT OF 1944. ALSO STATES THAT EMPLOYEES SUBJECT TO RELEASE ARE PLACED ON FURLOUGH AND AS A RESULT OF SUCH FURLOUGH STATUS ARE ENTITLED TO RESTORATION TO WORK IN THE ORDER OF SENIORITY, COVERAGE UNDER GOVERNMENT LIFE INSURANCE WITHOUT CHARGE FOR UP TO 1 YEAR, AND CERTAIN MEDICAL BENEFITS FOR 4 MONTHS.

CIVIL SERVICE REGULATION 351.604 WHICH WAS ISSUED UNDER SECTION 12 OF THE VETERANS' PREFERENCE ACT OF 1944, 5 U.S.C. 861, AUTHORIZES AGENCIES TO FURLOUGH EMPLOYEES WHO ARE SUBJECT TO REDUCTION IN FORCE IN LIEU OF SEPARATING THEM IF IT IS EXPECTED THAT SUCH EMPLOYEES WILL BE RETURNED TO A WORK STATUS WITHIN 1 YEAR. UNDER THAT REGULATION FURLOUGHED EMPLOYEES ARE ENTITLED TO RESTORATION TO WORK STATUS IN ACCORDANCE WITH THEIR VETERANS PREFERENCE RETENTION. FURTHERMORE, EMPLOYEES FURLOUGHED UNDER THAT SECTION ARE ENTITLED TO LIFE INSURANCE COVERAGE WITHOUT COST FOR UP TO 1 YEAR (SECTION 870.501/C), CIVIL SERVICE REGULATIONS) AND TO LIMITED HEALTH BENEFITS COVERAGE (SECTIONS 890.304/A) (1), 890.401, CIVIL SERVICE REGULATIONS).

SUBSECTION 9/C) OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965, 5 U.S.C. 1117/C), PROVIDES:

AN OFFICER OR EMPLOYEE TO WHOM THIS SECTION APPLIES WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE, ON OR AFTER THE EFFECTIVE DATE OF THIS SECTION, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY, SHALL, UNDER THE RULES AND REGULATIONS PRESCRIBED BY THE PRESIDENT OR SUCH OFFICER OR AGENCY AS HE MAY DESIGNATE, BE PAID SEVERANCE PAY IN REGULAR PAY PERIODS BY THE DEPARTMENT, INDEPENDENT ESTABLISHMENT, CORPORATION, OR OTHER GOVERNMENTAL UNIT, FROM WHICH SEPARATED. (ITALICS SUPPLIED.)

UNDER THE EXPRESS WORDS OF THAT SUBSECTION AN EMPLOYEE MUST BE INVOLUNTARILY SEPARATED IN ORDER TO QUALIFY FOR BENEFITS. THE LEGISLATIVE HISTORY OF THAT ACT CONTAINS NO REFERENCE TO THE GRANTING OF SEVERANCE PAY TO EMPLOYEES WHO ARE INVOLUNTARILY PLACED IN A FURLOUGH OR OTHER NONPAY STATUS. FURTHERMORE, SUBSECTION (H) OF SECTION 9, 5 U.S.C. 1117/H), PROVIDES:

SEVERANCE PAY UNDER THIS SECTION SHALL NOT BE A BASIS FOR PAYMENT, NOR BE INCLUDED IN THE BASIS FOR COMPUTATION, OF ANY OTHER TYPE OF FEDERAL OR DISTRICT OF COLUMBIA GOVERNMENT BENEFITS, AND ANY PERIOD COVERED BY SEVERANCE PAY SHALL NOT BE REGARDED AS A PERIOD OF FEDERAL OR DISTRICT OF COLUMBIA GOVERNMENT SERVICE OR EMPLOYMENT.

THAT SUBSECTION WAS INCLUDED IN SECTION 9 TO INSURE THAT EMPLOYEES RECEIVING SEVERANCE PAY WOULD NOT BE GRANTED OTHER BENEFITS AS EMPLOYEES OF THE UNITED STATES. SEE S. REPT. NO. 910, 89TH CONG; 1ST SESS; PAGE 10.

SINCE THE CONGRESS PROVIDED SEVERANCE PAY BENEFITS ONLY FOR SEPARATED EMPLOYEES AT A TIME WHEN FURLOUGH AS WELL AS SEPARATION WAS AUTHORIZED IN CIVIL SERVICE REGULATIONS WE DO NOT BELIEVE THAT EMPLOYEES OF THE ALASKA RAILROAD WHO WOULD BE ENTITLED TO SEVERANCE PAY IF SEPARATED FROM THEIR POSITIONS IN A REDUCTION IN FORCE MAY BE ALLOWED SUCH BENEFIT WHEN THEY ARE NOT SEPARATED BUT PLACED IN A FURLOUGH STATUS. WE HAVE BEEN ADVISED BY THE GENERAL COUNSEL OF THE CIVIL SERVICE COMMISSION, THE BODY RESPONSIBLE FOR REGULATING UNDER SECTION 9 OF PUBLIC LAW 89-301, THAT HE AGREES WITH OUR CONCLUSION.

FOR THE REASON STATED PAYMENTS UNDER SECTION 9 OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965 SHOULD NOT BE MADE TO THE EMPLOYEES IN QUESTION.