B-166917, JUN. 10, 1969

B-166917: Jun 10, 1969

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FC: THIS IS IN REPLY TO YOUR REQUEST OF APRIL 30. IF THE LATTER IS LESS. THE REGULATION ALSO PROVIDES THAT THE ADVANCES WILL BE REPAID BY SALARY DEDUCTIONS OVER A PERIOD OF TIME NOT TO EXCEED 10 MONTHS. THE CHRISTMAS BONUS ACCRUES DURING THE CALENDAR YEAR AND IS PAYABLE IN DECEMBER. THE SUMMER BONUS ACCRUES DURING THE FISCAL YEAR AND IS PAYABLE IN JUNE. AT THE TIME OF SEPARATION EMPLOYEES ARE ENTITLED TO PAYMENT OF A PROPORTIONAL SHARE OF THE CHRISTMAS AND SUMMER BONUS AND SEVERANCE PAY. UNPAID ADVANCES AT THE TIME OF SEPARATION ARE TO BE DEDUCTED FROM THE FINAL PAYMENTS DUE THE EMPLOYEES. THERE IS NO ITALIAN LAW SPECIFICALLY GOVERNING SALARY ADVANCES OR LOANS TO PERSONNEL OF PRIVATE EMPLOYERS.

B-166917, JUN. 10, 1969

TO CAPTAIN G. L. NIX, FC:

THIS IS IN REPLY TO YOUR REQUEST OF APRIL 30, 1969, REFERENCE AESELFIN (16 DEC 68), FOR AN ADVANCE DECISION AS TO WHETHER YOU MAY PAY A VOUCHER IN THE AMOUNT OF $112.36 IN FAVOR OF MR. ANGELO DALLA POZZA, A DIRECT HIRE ITALIAN CIVILIAN EMPLOYEE OF YOUR AGENCY.

REGULATION NO. 690-70, PROMULGATED OCTOBER 31, 1968, BY HEADQUARTERS, UNITED STATES ARMY, SOUTHERN EUROPEAN TASK FORCE, AUTHORIZES ADVANCES OF SALARY AS SHORT TERM EMERGENCY LOANS TO ITALIAN CITIZEN EMPLOYEES. THE REGULATION PROVIDES THAT THE ADVANCES SHALL NOT EXCEED THE EQUIVALENT OF ONE MONTH'S SALARY OR THE AGGREGATE AMOUNT OF EARNED CHRISTMAS BONUS, SUMMER BONUS AND SEVERANCE PAY, IF THE LATTER IS LESS. THE REGULATION ALSO PROVIDES THAT THE ADVANCES WILL BE REPAID BY SALARY DEDUCTIONS OVER A PERIOD OF TIME NOT TO EXCEED 10 MONTHS. YOU BELIEVE THAT PAYMENT OF THE VOUCHER, WHICH REPRESENTS AN ADVANCE OF SALARY UNDER REGULATION NO. 690- 70, WOULD BE IN VIOLATION OF 31 U.S.C. 529 AND 31 U.S.C. 665 (A) WHICH PROHIBIT, RESPECTIVELY, PAYMENTS IN ADVANCE OF THE RENDITION OF SERVICES AND PAYMENTS IN ADVANCE OF APPROPRIATIONS MADE FOR SUCH PURPOSE.

THE RECORD INDICATES THAT THE CHRISTMAS AND SUMMER BONUSES AMOUNT TO ONE MONTH'S SALARY EACH. THE CHRISTMAS BONUS ACCRUES DURING THE CALENDAR YEAR AND IS PAYABLE IN DECEMBER. THE SUMMER BONUS ACCRUES DURING THE FISCAL YEAR AND IS PAYABLE IN JUNE. SEVERANCE PAY ACCRUES AT VARIOUS RATES DEPENDING ON THE TYPE OF EMPLOYEE INVOLVED DURING EACH YEAR OF CREDITABLE SERVICE. AT THE TIME OF SEPARATION EMPLOYEES ARE ENTITLED TO PAYMENT OF A PROPORTIONAL SHARE OF THE CHRISTMAS AND SUMMER BONUS AND SEVERANCE PAY. UNPAID ADVANCES AT THE TIME OF SEPARATION ARE TO BE DEDUCTED FROM THE FINAL PAYMENTS DUE THE EMPLOYEES.

THE FILE CONTAINS A REFERENCE TO ARTICLE IX, SECTION 4, NORTH ATLANTIC TREATY, STATUS OF FORCES AGREEMENT, TIAS 2846, AND ITALIAN LAW NO. 180 DATED JANUARY 5, 1950. SECTION 4 OF THE AGREEMENT CITED PROVIDES AS FOLLOWS:

"4. LOCAL CIVILIAN LABOUR REQUIREMENTS OF A FORCE OR CIVILIAN COMPONENT SHALL BE SATISFIED IN THE SAME WAY AS THE COMPARABLE REQUIREMENTS OF THE RECEIVING STATE AND WITH THE ASSISTANCE OF THE AUTHORITIES OF THE RECEIVING STATE THROUGH THE EMPLOYMENT EXCHANGES. THE CONDITIONS OF EMPLOYMENT AND WORK, IN PARTICULAR WAGES, SUPPLEMENTARY PAYMENTS AND CONDITIONS FOR THE PROTECTION OF WORKERS, SHALL BE THOSE LAID DOWN BY THE LEGISLATION OF THE RECEIVING STATE. SUCH CIVILIAN WORKERS EMPLOYED BY A FORCE OR CIVILIAN COMPONENT SHALL NOT BE REGARDED FOR ANY PURPOSE AS BEING MEMBERS OF THAT FORCE OR CIVILIAN COMPONENT.' ITALIAN LAW NO. 180 DATED JANUARY 5, 1950, GOVERNS THE MAKING OF LOANS TO MILITARY AND CIVILIAN EMPLOYEES OF THE ITALIAN GOVERNMENT AND THE REPAYMENT OF SUCH LOANS THROUGH PAYROLL DEDUCTIONS. THERE IS NO ITALIAN LAW SPECIFICALLY GOVERNING SALARY ADVANCES OR LOANS TO PERSONNEL OF PRIVATE EMPLOYERS. HOWEVER, IT IS LOCAL CUSTOM AND PRACTICE FOR INDUSTRIAL EMPLOYERS TO MAKE SUCH PAYMENTS.

UNDER REGULATION NO. 690-70 ADVANCES OF SALARY ARE LOANS WHICH ARE TO BE REPAID BY DEDUCTIONS FROM FUTURE SALARY PAYMENTS OVER A PERIOD OF MONTHS WHICH MAY EXTEND BEYOND THE CURRENT FISCAL YEAR. SECTION 4 OF THE AGREEMENT CITED ABOVE PROVIDES THAT THE CONDITIONS OF EMPLOYMENT AND CONDITIONS OF WORK OF LOCAL CIVILIAN EMPLOYEES SHALL BE THOSE LAID DOWN BY THE LEGISLATION OF THE RECEIVING STATE. WHILE THAT PROVISION SEEMS TO REFER PRIMARILY TO LEGISLATION APPLICABLE TO EMPLOYEES IN PRIVATE INDUSTRY IT IS NOT ENTIRELY CLEAR THAT SUCH PROVISION WOULD NOT ALSO INCLUDE LEGISLATION APPLICABLE TO EMPLOYEES OF THE RECEIVING STATE IN A GIVEN CASE.

REGARDLESS OF THE ABOVE WE SEE NO REASON WHY THE AUTHORITY GRANTED TO THE DEPARTMENTS BY 22 U.S.C. 889 (B) TO ADMINISTER ALIEN EMPLOYEE PROGRAMS BASED UPON LOCAL EMPLOYMENT PRACTICES WOULD NOT BE APPLICABLE. SEE 40 COMP. GEN. 650. ACCORDINGLY, IF THE DEPARTMENT DETERMINES THAT PAYMENTS SIMILAR TO THAT HERE INVOLVED ARE IN THE PUBLIC INTEREST AND THE MATTER OF ADOPTING SUCH PRACTICE IS COORDINATED WITH OTHER AGENCIES OF THE UNITED STATES OPERATING IN ITALY, WE WILL NOT OBJECT TO THE PAYMENT OF THE INSTANT VOUCHER AND OTHERS SIMILAR THERETO.

THE VOUCHER IS RETURNED HEREWITH FOR HANDLING IN ACCORDANCE WITH THE FOREGOING.