B-170212, AUG 11, 1970, 50 COMP GEN 82

B-170212: Aug 11, 1970

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AS THE EMPLOYEE BY VIRTUE OF THE TEMPORARY PROMOTION IS NOT CONSIDERED AS HAVING BECOME "ENTITLED TO A HIGHER RATE OF BASIC PAY BY OPERATION OF" THE CLASSIFICATION LAW WITHIN THE MEANING OF 5 U.S.C. 5337. 1970: THIS IS IN FURTHER REFERENCE TO YOUR LETTER DATED JUNE 29. IT IS STATED IN YOUR LETTER THAT IN ONE INSTANCE TWO EMPLOYEES ARE HESITATING TO ACCEPT TEMPORARY PROMOTIONS BECAUSE OF THE DOUBT. THAT IN ANOTHER INSTANCE AN EMPLOYEE HAS PROTESTED AN ADMINISTRATIVE DENIAL OF SALARY RETENTION UNDER THE FOLLOWING CIRCUMSTANCES: *** THE EMPLOYEE WAS DEMOTED EFFECTIVE SEPTEMBER 16. SHE APPLIED FOR A GS-5 POSITION ADVERTISED AS BEING FILLED ON A TEMPORARY BASIS AND WAS SELECTED. BEFORE THE PROMOTION WAS EFFECTED SHE WAS ADVISED THAT IF SHE ACCEPTED IT SHE WOULD LOSE HER SALARY RETENTION.

B-170212, AUG 11, 1970, 50 COMP GEN 82

COMPENSATION - DOWNGRADING - SAVED COMPENSATION - TEMPORARY PROMOTIONS AN EMPLOYEE DEMOTED FROM GS-5, STEP 9, TO GS-4, STEP 10, WITH SALARY RETENTION PURSUANT TO 5 U.S.C. 5337, WHO ACCEPTS A TEMPORARY PROMOTION AND THEN RETURNS TO THE SAME GRADE TO WHICH INITIALLY DEMOTED HAS NOT FORFEITED ENTITLEMENT TO THE SALARY RETENTION AUTHORIZED FOR 2 YEARS BY SECTION 5337, THE RETENTION PERIOD TO COMMENCE ON DATE OF DEMOTION, SEPTEMBER 16, 1968. THE TEMPORARY PROMOTION DID NOT AFFECT THE RUNNING OF THE SALARY-RETENTION PERIOD, AS THE EMPLOYEE BY VIRTUE OF THE TEMPORARY PROMOTION IS NOT CONSIDERED AS HAVING BECOME "ENTITLED TO A HIGHER RATE OF BASIC PAY BY OPERATION OF" THE CLASSIFICATION LAW WITHIN THE MEANING OF 5 U.S.C. 5337--A BAR TO SALARY-RETENTION COVERAGE.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, AUGUST 11, 1970:

THIS IS IN FURTHER REFERENCE TO YOUR LETTER DATED JUNE 29, 1970, REQUESTING A DECISION ON WHETHER AN EMPLOYEE RECEIVING A RETAINED RATE UNDER 5 U.S.C. 5337 LOSES ENTITLEMENT TO THE RETAINED RATE BY ACCEPTING A TEMPORARY PROMOTION TO THE SAME GRADE AND STEP FROM WHICH DEMOTED OR HIGHER, AND THEN BEING RETURNED TO THE GRADE TO WHICH ORIGINALLY DEMOTED.

IT IS STATED IN YOUR LETTER THAT IN ONE INSTANCE TWO EMPLOYEES ARE HESITATING TO ACCEPT TEMPORARY PROMOTIONS BECAUSE OF THE DOUBT, AND THAT IN ANOTHER INSTANCE AN EMPLOYEE HAS PROTESTED AN ADMINISTRATIVE DENIAL OF SALARY RETENTION UNDER THE FOLLOWING CIRCUMSTANCES:

*** THE EMPLOYEE WAS DEMOTED EFFECTIVE SEPTEMBER 16, 1968, FROM GS 5, STEP 9, $7265 PER ANNUM, TO GS-4, STEP 10, WITH SALARY RETENTION. DECEMBER, 1969, SHE APPLIED FOR A GS-5 POSITION ADVERTISED AS BEING FILLED ON A TEMPORARY BASIS AND WAS SELECTED. BEFORE THE PROMOTION WAS EFFECTED SHE WAS ADVISED THAT IF SHE ACCEPTED IT SHE WOULD LOSE HER SALARY RETENTION. SHE WAS PROMOTED DECEMBER 28, 1969, TO GS-5, STEP 9, $7824 PER ANNUM. THE ACTIVITY IS NOW BEING DISESTABLISHED, AND SHE WAS PLACED ON THE REEMPLOYMENT PRIORITY LIST AT THE GS-5 AND GS-4 LEVELS. SHE ACCEPTED A GS-4 POSITION AT ANOTHER ACTIVITY IN THE SAME DEPARTMENT, BUT WAS FIRST RETURNED TO HER PERMANENT GS-4 POSITION, HER SALARY BEING SET AS GS-4, STEP 10, $7608 PER ANNUM (THE REGULAR SALARY RATE) ON THE BASIS THAT SHE HAD FORFEITED HER ENTITLEMENT TO SALARY RETENTION WHEN PROMOTED TEMPORARILY TO THE GS-5 POSITION. ***

YOU STATE THAT IT WOULD APPEAR TO BE REASONABLE TO APPLY THE SAME PRINCIPLE THAT WAS APPLIED IN 30 COMP. GEN. 82 (1950) TO ENTITLEMENT TO WITHIN-GRADE INCREASES WHEN AN EMPLOYEE IS TEMPORARILY PROMOTED AND THEN RETURNED TO HIS PERMANENT GRADE. FURTHER, YOU BELIEVE THAT AN EMPLOYEE NEED NOT BE CONSIDERED AS HAVING BECOME "ENTITLED TO A HIGHER RATE OF BASIC PAY BY OPERATION OF" THE CLASSIFICATION LAW, WITHIN THE MEANING OF THE SALARY-RETENTION PROVISION, 5 U.S.C. 5337, BY VIRTUE OF HAVING BEEN TEMPORARILY PROMOTED, AND THAT IT WOULD BE IN THE INTEREST OF THE GOVERNMENT AS WELL AS EMPLOYEES TO PERMIT TEMPORARY PROMOTIONS WITHOUT AFFECTING THE RUNNING OF A SALARY-RETENTION PERIOD.

WE AGREE WITH YOUR VIEW AND FOR THE REASONS STATED ABOVE THAT TEMPORARY PROMOTIONS NEED NOT BE VIEWED AS AFFECTING THE RUNNING OF THE SALARY- RETENTION PERIOD, THUS, IN THE EXAMPLE QUOTED ABOVE THE SALARY RETENTION PERIOD WOULD COMMENCE SEPTEMBER 16, 1968, THE EFFECTIVE DATE OF THE DEMOTION, AND END, IF OTHERWISE PROPER, 2 YEARS THEREFROM WITHOUT REGARD TO THE INTERVENING TEMPORARY PROMOTION.