B-170352, SEP 4, 1970, 50 COMP GEN 173

B-170352: Sep 4, 1970

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IS NOT ENTITLED TO THE RETROACTIVE SALARY ADJUSTMENT AUTHORIZED BY THE ACT FOR EMPLOYEES ON THE ROLLS ON THE EFFECTIVE DATE OF THE ACT APRIL 15. SINCE UNDER SECTION 3582(B) AN EMPLOYEE WHO TRANSFERS TO A PUBLIC INTERNATIONAL ORGANIZATION IS GUARANTEED THAT UPON REEMPLOYMENT THE COMPENSATION PAYABLE WILL NOT BE LESS THAN IF THE EMPLOYEE HAD REMAINED ON THE GOVERNMENT ROLLS. ANY SALARY ADJUSTMENT REQUIRED UPON REEMPLOYMENT MAY INCLUDE THE RETROACTIVE SALARY PAYMENT THE EMPLOYEE WOULD HAVE RECEIVED IF ON THE ROLLS ON APRIL 15. 1970: THIS IS IN REPLY TO YOUR LETTER OF JULY 14. WHO WERE SEPARATED BY TRANSFER TO INTERNATIONAL ORGANIZATIONS PRIOR TO THE ENACTMENT OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970.

B-170352, SEP 4, 1970, 50 COMP GEN 173

INTERNATIONAL ORGANIZATIONS - TRANSFER OF FEDERAL EMPLOYEES, ETC. - REEMPLOYMENT GUARANTEES AN EMPLOYEE OF THE FEDERAL GOVERNMENT WHO TRANSFERRED TO A PUBLIC INTERNATIONAL ORGANIZATION WITH REEMPLOYMENT RIGHTS UNDER 5 U.S.C. 3582(B), PRIOR TO THE ENACTMENT OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970, IS NOT ENTITLED TO THE RETROACTIVE SALARY ADJUSTMENT AUTHORIZED BY THE ACT FOR EMPLOYEES ON THE ROLLS ON THE EFFECTIVE DATE OF THE ACT APRIL 15, 1970 - A CONDITION PRECEDENT TO ENTITLEMENT. HOWEVER, SINCE UNDER SECTION 3582(B) AN EMPLOYEE WHO TRANSFERS TO A PUBLIC INTERNATIONAL ORGANIZATION IS GUARANTEED THAT UPON REEMPLOYMENT THE COMPENSATION PAYABLE WILL NOT BE LESS THAN IF THE EMPLOYEE HAD REMAINED ON THE GOVERNMENT ROLLS, ANY SALARY ADJUSTMENT REQUIRED UPON REEMPLOYMENT MAY INCLUDE THE RETROACTIVE SALARY PAYMENT THE EMPLOYEE WOULD HAVE RECEIVED IF ON THE ROLLS ON APRIL 15, 1970.

TO VLADIMIR OLEYNIK, UNITED STATES DEPARTMENT OF LABOR, SEPTEMBER 4, 1970:

THIS IS IN REPLY TO YOUR LETTER OF JULY 14, 1970, TRANSMITTING A VOUCHER AND SCHEDULE OF PAYMENTS FOR $167.78 ON BEHALF OF MRS. MARY D. CARRES, REPRESENTING A RETROACTIVE PAY ADJUSTMENT FOR THE PERIOD DECEMBER 28, 1969, TO APRIL 14, 1970, WHEN MRS. CARRES TRANSFERRED FROM YOUR DEPARTMENT TO A PUBLIC INTERNATIONAL ORGANIZATION. YOU REQUEST OUR DECISION AS TO WHETHER MRS. CARRES AND OTHER EMPLOYEES OF YOUR DEPARTMENT, WHO WERE SEPARATED BY TRANSFER TO INTERNATIONAL ORGANIZATIONS PRIOR TO THE ENACTMENT OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970, ARE ENTITLED TO THE RETROACTIVE PAY PROVISIONS OF THE ACT.

SECTION 5 OF THE FEDERAL EMPLOYEES SALARY ACT OF 1970, PUBLIC LAW 91 231, ENACTED APRIL 15, 1970, 84 STAT. 197, 5 U.S.C. 5332 NOTE, PROVIDES IN PERTINENT PART AS FOLLOWS:

SEC 5(A) RETROACTIVE PAY, COMPENSATION, OR SALARY SHALL BE PAID BY REASON OF THIS ACT ONLY IN THE CASE OF AN INDIVIDUAL IN THE SERVICE OF THE UNITED STATES (INCLUDING SERVICES IN THE ARMED FORCES OF THE UNITED STATES) OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA ON THE DATE OF ENACTMENT OF THIS ACT ***

SINCE MRS. CARRES WAS SEPARATED FROM THE GOVERNMENT SERVICE ON APRIL 14, 1970, SHE MAY NOT BE SAID TO HAVE BEEN IN THE SERVICE OF THE UNITED STATES ON THE DATE OF ENACTMENT OF THE ACT. HOWEVER, THE RECORD INDICATES THAT MRS. CARRES TRANSFERRED UNDER THE PROVISIONS OF PUBLIC LAW 85-795, NOW CODIFIED IN 5 U.S.C. 3581 TO 3584 (SUPP. V). SHE THEREFORE HAS REEMPLOYMENT RIGHTS UNDER 5 U.S.C. 3582(B) WHICH, AS AMENDED BY SECTION 502 OF THE FOREIGN ASSISTANCE ACT OF 1969, 83 STAT. 805, 825, PROVIDES WITH RESPECT TO A REEMPLOYED EMPLOYEE THAT:

*** ON REEMPLOYMENT, HE IS ENTITLED TO BE PAID, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE AND FROM APPROPRIATIONS OR FUNDS OF THE AGENCY FROM WHICH TRANSFERRED, AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE PAY, ALLOWANCES, POST DIFFERENTIAL, AND OTHER MONETARY BENEFITS PAID BY THE INTERNATIONAL ORGANIZATION AND THE PAY, ALLOWANCES, POST DIFFERENTIAL, AND OTHER MONETARY BENEFITS THAT WOULD HAVE BEEN PAID BY THE AGENCY HAD HE BEEN DETAILED TO THE INTERNATIONAL ORGANIZATION UNDER SECTION 3343 OF THIS TITLE. SUCH A PAYMENT SHALL BE MADE TO AN EMPLOYEE WHO IS UNABLE TO EXERCISE HIS REEMPLOYMENT RIGHT BECAUSE OF DISABILITY INCURRED WHILE ON TRANSFER TO AN INTERNATIONAL ORGANIZATION UNDER THIS SUBCHAPTER AND, IN THE CASE OF ANY EMPLOYEE WHO DIES WHILE ON SUCH A TRANSFER OR DURING THE PERIOD AFTER SEPARATION FROM THE INTERNATIONAL ORGANIZATION IN WHICH HE IS PROPERLY EXERCISING OR COULD EXERCISE HIS REEMPLOYMENT RIGHT, IN ACCORDANCE WITH SUBCHAPTER VIII OF CHAPTER 55 OF THIS TITLE. THIS SUBSECTION DOES NOT APPLY TO A CONGRESSIONAL EMPLOYEE NOR MAY ANY PAYMENT PROVIDED FOR IN THE PRECEDING TWO SENTENCES OF THIS SUBSECTION BE BASED ON A PERIOD OF EMPLOYMENT WITH AN INTERNATIONAL ORGANIZATION OCCURRING BEFORE THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS ON OR AFTER THE DATE OF ENACTMENT OF THE FOREIGN ASSISTANCE ACT OF 1969.

THE FOLLOWING COMMENTS CONCERNING AMENDMENTS MADE BY SECTION 502 APPEAR AT PAGE 63 OF H. REPT. NO. 91-611, NOVEMBER 6, 1969:

DETAILED EMPLOYEES REMAIN ON THE ACTIVE ROLLS OF THEIR FEDERAL AGENCIES AND RECEIVE THEIR PAY AND ALLOWANCES DIRECTLY FROM THEIR AGENCIES. POLICIES OF MOST INTERNATIONAL ORGANIZATIONS PROHIBIT OR PLACE SEVERE RESTRICTIONS ON ACCEPTANCE OF COMPENSATION BY THEIR STAFF MEMBERS FROM EXTERNAL SOURCES. UNDER THIS AMENDMENT, HOWEVER, THE DIFFERENCE, IF ANY, WOULD BE PAID TO THE EMPLOYEES ONLY UPON REEMPLOYMENT BY THE FEDERAL AGENCY. IT MAY BE ARGUED THAT THE ANTICIPATION OF A DEFERRED PAYMENT FOR SERVICES RENDERED TO AN INTERNATIONAL ORGANIZATION CONSTITUTES AN EFFECTIVE TIE OR RELATIONSHIP TO THE GOVERNMENT BUT THIS RELATIONSHIP EXISTS IN ANY CASE SINCE IT IS UNDERSTOOD THAT THE EMPLOYEE WILL RETURN TO HIS GOVERNMENT'S SERVICE AND WHILE HE IS WORKING FOR THE INTERNATIONAL ORGANIZATION HIS RETIREMENT AND OTHER BENEFITS ARE PROTECTED.

RECOGNIZING THAT PROVISION HAS BEEN MADE FOR CONSIDERING PERIODS OF EMPLOYMENT WITH INTERNATIONAL ORGANIZATIONS AS FEDERAL EMPLOYEE SERVICE FOR THE SPECIFIC PURPOSE OF RETAINING INSURANCE, HEALTH, AND RETIREMENT BENEFITS, IT IS NEVERTHELESS CLEAR THAT A DISTINCTION IS TO BE MADE BETWEEN THOSE EMPLOYEES TRANSFERRED TO INTERNATIONAL ORGANIZATIONS AND THOSE WHO ARE DETAILED. DETAILED EMPLOYEES REMAIN ON THE GOVERNMENT ROLLS AND RECEIVE PAY AS BEING IN THE SERVICE OF THE UNITED STATES. THOSE TRANSFERRED ARE GUARANTEED THAT THEIR PAY WILL NOT BE LESS THAN IF THEY HAD REMAINED ON THE GOVERNMENT ROLLS, BUT SUCH GUARANTEE IS EFFECTIVE ONLY UPON CONDITION OF REEMPLOYMENT. IF AN EMPLOYEE EARNS AS MUCH AS OR MORE WHILE SERVING WITH AN INTERNATIONAL ORGANIZATION THAN HE WOULD HAVE EARNED AS A FEDERAL EMPLOYEE, NO PAYMENT UNDER THE GUARANTEE WOULD BE REQUIRED. AND IF HE EARNS LESS WITHOUT BEING REEMPLOYED, NO PAYMENT WOULD BE AUTHORIZED.

ACCORDINGLY, THE PAY OF MRS. CARRES BEING FOR ADJUSTMENT UNDER THE PROVISIONS OF 5 U.S.C. 3582(B), AS AMENDED, TO INCLUDE THE RETROACTIVE PORTION IF REQUIRED, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE AND THE VOUCHER, WHICH IS RETURNED, MAY NOT BE CERTIFIED FOR PAYMENT.