B-162646, DEC. 6, 1967

B-162646: Dec 6, 1967

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AN EMPLOYEE WHO IS INVOLUNTARILY SEPARATED FROM A PERMANENT POSITION AND WHO ACCEPTS A TEMPORARY APPOINTMENT FROM WHICH HE IS INVOLUNTARILY SEPARATED AFTER THE EFFECTIVE DATE OF THE SEVERANCE PAY STATUTE (OCT. 29. 1965) IS ENTITLED TO SEVERANCE PAY SINCE COVERAGE OF THE STATUTE IS FOR DETERMINATION AT THE TIME OF FINAL SEPARATION. REQUESTS OUR DECISION ON THE QUESTION WHETHER PAYMENT OF SEVERANCE PAY IS AUTHORIZED TO AN EMPLOYEE INVOLUNTARILY SEPARATED FROM TEMPORARY EMPLOYMENT AFTER THE EFFECTIVE DATE OF THE SEVERANCE PAY STATUTE WHEN SUCH TEMPORARY EMPLOYMENT IMMEDIATELY FOLLOWED (NO BREAK IN SERVICE) AN INVOLUNTARY SEPARATION FROM CAREER EMPLOYMENT WHICH OCCURRED BEFORE THE EFFECTIVE DATE OF THE STATUTE.

B-162646, DEC. 6, 1967

COMPENSATION - SEVERANCE PAY DECISION TO CHAIRMAN, CSC AUTHORIZING PAYMENT OF SEVERANCE PAY TO EMPLOYEE INVOLUNTARILY SEPARATED FROM TEMPORARY EMPLOYMENT AFTER EFFECTIVE DATE OF SEVERANCE PAY LAW (OCT. 29, 1965). AN EMPLOYEE WHO IS INVOLUNTARILY SEPARATED FROM A PERMANENT POSITION AND WHO ACCEPTS A TEMPORARY APPOINTMENT FROM WHICH HE IS INVOLUNTARILY SEPARATED AFTER THE EFFECTIVE DATE OF THE SEVERANCE PAY STATUTE (OCT. 29, 1965) IS ENTITLED TO SEVERANCE PAY SINCE COVERAGE OF THE STATUTE IS FOR DETERMINATION AT THE TIME OF FINAL SEPARATION.

TO MR. MACY:

YOUR LETTER OF OCTOBER 5, 1967, REQUESTS OUR DECISION ON THE QUESTION WHETHER PAYMENT OF SEVERANCE PAY IS AUTHORIZED TO AN EMPLOYEE INVOLUNTARILY SEPARATED FROM TEMPORARY EMPLOYMENT AFTER THE EFFECTIVE DATE OF THE SEVERANCE PAY STATUTE WHEN SUCH TEMPORARY EMPLOYMENT IMMEDIATELY FOLLOWED (NO BREAK IN SERVICE) AN INVOLUNTARY SEPARATION FROM CAREER EMPLOYMENT WHICH OCCURRED BEFORE THE EFFECTIVE DATE OF THE STATUTE.

YOUR LETTER READS, IN PERTINENT PART, AS FOLLOWS: "SPECIFICALLY, IN A CURRENT INSTANCE A CAREER EMPLOYEE RECEIVED A REDUCTION-IN-FORCE NOTICE IN AN ESTABLISHMENT SCHEDULED FOR CLOSURE ON JUNE 30, 1965; IN JUNE, 1965, HE WAS GIVEN A TEMPORARY APPOINTMENT WITHOUT A BREAK IN SERVICE IN AN ESTABLISHMENT WHICH WAS SCHEDULED FOR CLOSURE JUNE 30, 1966; IN JUNE 1966, HE WAS GIVEN A TEMPORARY APPOINTMENT WITHOUT A BREAK IN SERVICE IN AN ESTABLISHMENT WHICH WAS SCHEDULED FOR CLOSURE JUNE 30, 1967. ON JUNE 30, 1967, HE WAS SEPARATED INVOLUNTARILY FROM THE TEMPORARY APPOINTMENT. "THE SEVERANCE PAY STATUTE (SECTION 9 OF PUBLIC LAW 89-301, NOW 5 U.S.C. 5595) WAS EFFECTIVE OCTOBER 29, 1965. IT PROVIDES THAT IT COVERS AN EMPLOYEE SERVING UNDER AN APPOINTMENT WITH A DEFINITE TIME LIMITATION IF HE WAS SO APPOINTED FOR FULL-TIME EMPLOYMENT WITHOUT A BREAK IN SERVICE OR MORE THAN THREE DAYS FOLLOWING SERVICE UNDER AN APPOINTMENT WITHOUT TIME LIMITATION. "ON THAT BASIS THE AGENCY CONCERNED PAID SEVERANCE PAY IN PAST INSTANCES SIMILAR TO THE CASE DESCRIBED. IN NOW REQUESTING THE COMMISSION TO OBTAIN A RULING FROM YOUR OFFICE, THE AGENCY SAYS: -A REVIEW OF SECTION 9 (B) OF THE LAW WOULD INDICATE THAT THE PROVISIONS WERE APPLICABLE TO EMPLOYEES SERVING UNDER TEMPORARY APPOINTMENTS WITHOUT A BREAK IN SERVICE OR AFTER A SEPARATION OF THREE DAYS OR LESS, FROM AN APPOINTMENT WITHOUT TIME LIMITATION. IN VIEW OF THIS, IT IS THE OPINION OF THIS OFFICE THAT THE EMPLOYEE WHOSE CASE IS CITED IS ELIGIBLE FOR SEVERANCE PAY.- ,APPARENTLY THE QUESTION HAS BEEN RAISED BECAUSE OF SECTION 550.704 (B) (4) OF THE COMMISSION'S REGULATIONS. THAT SECTION REQUIRES, WHEN AN EMPLOYEE IS SEPARATED FROM A TEMPORARY APPOINTMENT FOLLOWING AN UNLIMITED APPOINTMENT, THAT (1) THE UNLIMITED APPOINTMENT MUST HAVE BEEN WITHIN THE COVERAGE OF THE SEVERANCE PAY STATUTE, (2) THE SEPARATION FROM THAT APPOINTMENT MUST HAVE MET THE CONDITIONS FOR ENTITLEMENT TO SEVERANCE PAY, AND (3) THE RATE OF SEVERANCE PAY IS THE RATE LAST RECEIVED IN THE UNLIMITED APPOINTMENT. "WE BELIEVE THAT THE REASONS FOR THESE REQUIREMENTS ARE EVIDENT. THE FIRST REQUIREMENT PREVENTS RECEIPT OF SEVERANCE PAY WHICH WOULD RESULT SOLELY FROM A TEMPORARY APPOINTMENT, IF AN INDIVIDUAL WHO WAS SEPARATED FROM A POSITION NOT COVERED BY THE STATUTE IMMEDIATELY OBTAINED A TEMPORARY APPOINTMENT FROM WHICH HE WAS EVENTUALLY INVOLUNTARILY SEPARATED. THE SECOND ENSURES THAT AN EMPLOYEE CANNOT OBTAIN SEVERANCE PAY BY RESIGNING FROM A PERMANENT APPOINTMENT TO TAKE A TEMPORARY APPOINTMENT FROM WHICH HE IS CERTAIN TO BE INVOLUNTARILY SEPARATED. THE THIRD PERMITS EMPLOYEES UNDER NOTICE OF INVOLUNTARY SEPARATION TO ACCEPT LOWER-PAID TEMPORARY APPOINTMENTS IF AVAILABLE, BEING ASSURED THAT IT WILL NOT REDUCE THE AMOUNT OF SEVERANCE PAY IF THEY ARE THEN SEPARATED FROM THE SERVICE AT THE TERMINATION OF THE TEMPORARY APPOINTMENTS. THIS PROVISION APPEARED FAIR TO ALL CONCERNED, AS IT DID NOT SEEM THAT AN EMPLOYEE WHO HAPPENED TO OBTAIN A SHORT-TERM APPOINTMENT AT A HIGHER RATE WOULD HAVE A LEGITIMATE COMPLAINT AT RECEIVING SEVERANCE PAY AT THE RATE HE HAD RECEIVED IN HIS PERMANENT POSITION. "IT APPEARS TO US THAT THE STATUTE APPLIED WHEN THE ACTUAL SEPARATION FROM THE SERVICE (THAT IS, THE SEPARATION FROM THE LAST TEMPORARY APPOINTMENT) OCCURRED ON OR AFTER THE EFFECTIVE DATE OF THE STATUTE, AS ACTUAL SEPARATION IS A PREREQUISITE TO ENTITLEMENT TO SEVERANCE PAY.'

SECTION 9, PUB.L. 89-301, 79 STAT. 1118, PROVIDES, IN PERTINENT PART, THAT:

"/B) THIS SECTION DOES NOT APPLY TO ---

"/2) AN OFFICER OR EMPLOYEE SERVING UNDER AN APPOINTMENT WITH A DEFINITE TIME LIMITATION, EXCEPT ONE SO APPOINTED FOR FULL-TIME EMPLOYMENT, WITHOUT A BREAK IN SERVICE OR AFTER A SEPARATION OF THREE DAYS OR LESS, FOLLOWING SERVICE UNDER AN APPOINTMENT WITHOUT TIME LIMITATION;

"/8) SUCH OTHER OFFICERS OR EMPLOYEES AS MAY BE EXCLUDED BY RULES AND REGULATIONS OF THE PRESIDENT OR OF SUCH OFFICER OR AGENCY AS HE MAY DESIGNATE.'

WE NOTE THAT IN S.REPT. NO. 910, 89TH CONG., 1ST SESS., TO ACCOMPANY H.R. 10281, WHICH BECAME PUB.L. 89-301, IT IS CLEARLY INDICATED (PAGE 8) THAT THE SEVERANCE PAY PROVISIONS ARE APPLICABLE TO AN EMPLOYEE SERVING UNDER AN APPOINTMENT WITH A DEFINITE TIME LIMITATION WHO IS APPOINTED THERETO "IMMEDIATELY AFTER CAREER SERVICE.' OBVIOUSLY, THAT STATEMENT WAS REFERRING TO LANGUAGE OF THE STATUTE WHICH CONTINUES COVERAGE THEREOF TO AN EMPLOYEE WHO RECEIVES A TEMPORARY APPOINTMENT WITHIN THREE DAYS FROM THE TERMINATION OF HIS PERMANENT EMPLOYMENT.

THE REGULATIONS REFERRED TO BY YOU AS WELL AS CERTAIN STATEMENTS IN OUR DECISION OF JULY 25, 1967, B-157753, MIGHT TEND TO INDICATE THAT THE RIGHT TO SEVERANCE PAY UPON SEPARATION FROM TEMPORARY EMPLOYMENT IS PREDICATED ENTIRELY UPON WHETHER SEVERANCE PAY WOULD HAVE BEEN ALLOWABLE IF THE PERMANENT EMPLOYMENT HAD NOT BEEN IMMEDIATELY FOLLOWED BY TEMPORARY EMPLOYMENT. HOWEVER, YOUR EXPLANATION INDICATES THAT THE REGULATIONS WERE NOT INTENDED TO AFFECT THE MATTER OF COVERAGE OF THE STATUTE AT THE TIME OF ITS ENACTMENT. THE SAME MAY BE SAID OF OUR DECISION OF JULY 25, 1967, WHICH INVOLVED THE SAME REGULATIONS.

ACCORDINGLY, WE AGREE THAT THE COVERAGE OF THE STATUTE IN A SITUATION SUCH AS HERE INVOLVED IS FOR DETERMINATION AT THE TIME OF THE FINAL SEPARATION FROM THE TEMPORARY APPOINTMENT. SINCE THE EMPLOYEE'S TEMPORARY EMPLOYMENT TERMINATED (INVOLUNTARY) SUBSEQUENT TO THE EFFECTIVE DATE OF THE ACT THE FACT THAT THE INVOLUNTARY TERMINATION OF THE PERMANENT EMPLOYMENT OCCURRED PRIOR TO SUCH EFFECTIVE DATE IS IMMATERIAL. UNDER THE CIRCUMSTANCES RELATED OUR OPINION IS THAT THE PAYMENT OF SEVERANCE PAY IS AUTHORIZED.