B-159401, JUN. 20, 1966

B-159401: Jun 20, 1966

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WORK PERFORMED ON SUNDAYS AND HOLIDAYS ARE TO BE CONSIDERED AS . WHILE A VOUCHER WAS NOT SUBMITTED YOU INDICATE THAT THE MATTER IS BEFORE YOU FOR DISPOSITION. THE SPECIFIC CASE BEFORE YOU INVOLVES AN EMPLOYEE WHO WAS RESTORED TO HIS POSITION WITH THE INTERNAL REVENUE SERVICE ON JANUARY 3. THE EMPLOYEE CONTENDS THAT SUCH WAGES ($350) SHOULD NOT BE DEDUCTED FROM HIS BACK PAY SINCE THEY WERE EARNED EITHER DURING HOURS OR ON DAYS OUTSIDE OF HIS REGULAR TOUR OF DUTY WITH THE INTERNAL REVENUE SERVICE. THE DEDUCTION OF INTERIM EARNINGS FROM RETROACTIVE COMPENSATION PAID AN EMPLOYEE WHO HAS BEEN IMPROPERLY REMOVED FROM THE SERVICE IS REQUIRED BY SECTION 6 (B) (1) OF THE ACT OF AUGUST 24. THE RULE EXPRESSED BY THE UNITED STATES COURT OF CLAIMS AND BY OUR OFFICE UNDER THAT PROVISION IS THAT ONLY THOSE ADDITIONAL EARNINGS WHICH WOULD HAVE ACCRUED TO THE EMPLOYEE CONCERNED REGARDLESS OF HIS SUSPENSION OR REMOVAL ARE NOT TO BE DEDUCTED FROM RETROACTIVE COMPENSATION.

B-159401, JUN. 20, 1966

TO AUTHORIZED CERTIFYING OFFICER, INTERNAL REVENUE SERVICE CENTER, U.S. TREASURY DEPARTMENT:

YOUR LETTER OF MAY 26, 1966, AND ENCLOSURES, REQUESTS OUR DECISION WHETHER WAGES REPRESENTING OVERTIME, NIGHT DIFFERENTIAL, AND WORK PERFORMED ON SUNDAYS AND HOLIDAYS ARE TO BE CONSIDERED AS ,AMOUNTS EARNED THROUGH OTHER EMPLOYMENT" FOR THE PURPOSE OF COMPUTING THE DEDUCTIONS FROM BACK PAY DUE AN EMPLOYEE UPON CANCELLATION OF AN ERRONEOUS REMOVAL ACTION. WHILE A VOUCHER WAS NOT SUBMITTED YOU INDICATE THAT THE MATTER IS BEFORE YOU FOR DISPOSITION.

THE SPECIFIC CASE BEFORE YOU INVOLVES AN EMPLOYEE WHO WAS RESTORED TO HIS POSITION WITH THE INTERNAL REVENUE SERVICE ON JANUARY 3, 1966, FOLLOWING REMOVAL THEREFROM ON DECEMBER 4, 1964. DURING HIS PERIOD OF SEPARATION THE EMPLOYEE EARNED GROSS INCOME OF $5,775.75 IN PRIVATE INDUSTRY. THAT AMOUNT, APPROXIMATELY $350 REPRESENTS WAGES FOR OVERTIME, NIGHT DIFFERENTIAL AND WORK PERFORMED ON SUNDAYS AND HOLIDAYS. THE EMPLOYEE CONTENDS THAT SUCH WAGES ($350) SHOULD NOT BE DEDUCTED FROM HIS BACK PAY SINCE THEY WERE EARNED EITHER DURING HOURS OR ON DAYS OUTSIDE OF HIS REGULAR TOUR OF DUTY WITH THE INTERNAL REVENUE SERVICE.

THE DEDUCTION OF INTERIM EARNINGS FROM RETROACTIVE COMPENSATION PAID AN EMPLOYEE WHO HAS BEEN IMPROPERLY REMOVED FROM THE SERVICE IS REQUIRED BY SECTION 6 (B) (1) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652 (B) (1). THAT SECTION REQUIRES THE DEDUCTION OF "ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD.' THE RULE EXPRESSED BY THE UNITED STATES COURT OF CLAIMS AND BY OUR OFFICE UNDER THAT PROVISION IS THAT ONLY THOSE ADDITIONAL EARNINGS WHICH WOULD HAVE ACCRUED TO THE EMPLOYEE CONCERNED REGARDLESS OF HIS SUSPENSION OR REMOVAL ARE NOT TO BE DEDUCTED FROM RETROACTIVE COMPENSATION. JACKSON V. UNITED STATES, 121 CT.CL. 405; 32 COMP. GEN. 408; 34 ID. 384. AMOUNTS EARNED BY A SUSPENDED OR SEPARATED EMPLOYEE FOR WORK PERFORMED OUTSIDE OF HIS REGULAR HOURS OF EMPLOYMENT WITH THE GOVERNMENT OR ON DAYS WHICH NORMALLY WOULD HAVE BEEN NONWORKDAYS WITH THE GOVERNMENT ARE NOT AUTOMATICALLY TO BE SUBTRACTED FROM INTERIM EARNINGS BUT ARE SUBJECT TO THE RULE EXPRESSED ABOVE. SEE B-95927, JANUARY 12, 1951, AND B 150550, JANUARY 28, 1963 (COPIES ENCLOSED).

THEREFORE, SINCE THE EMPLOYEE HERE APPARENTLY HAD NO INCOME FROM OUTSIDE EMPLOYMENT PRIOR TO HIS SEPARATION, THE TOTAL AMOUNT OF INTERIM EARNINGS ($5,775.75) IS TO BE DEDUCTED FROM HIS RETROACTIVE COMPENSATION.