B-201031, AUGUST 3, 1981, 60 COMP.GEN. 623

B-201031: Aug 3, 1981

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WAS TRANSFERRED FROM AN OFFICE PARTICIPATING IN A FLEXI TIME EXPERIMENT UNDER TITLE I OF THE FEDERAL EMPLOYEES FLEXIBLE AND COMPRESSED WORK SCHEDULES ACT OF 1978. 1981: THIS DECISION IS AT THE REQUEST OF MR. WAS TRANSFERRED FROM AN OFFICE WHICH PARTICIPATED IN AN ALTERNATIVE WORK SCHEDULES EXPERIMENT UNDER TITLE I OF PUBLIC LAW 95-390. TO AN OFFICE WHICH WAS NOT PARTICIPATING IN SUCH AN EXPERIMENT. PETERS WAS PAID $138.52 IN COMPENSATION FOR 5 3/4 CREDIT HOURS EARNED DURING THE PAY PERIOD OF JUNE 22 TO JULY 5. SECTION 106(B) AUTHORIZES PAYMENT FOR ACCUMULATED CREDIT HOURS AS FOLLOWS: (B) ANY EMPLOYEE WHO IS ON A FLEXIBLE SCHEDULE EXPERIMENT UNDER THIS TITLE AND WHO IS NO LONGER SUBJECT TO SUCH AN EXPERIMENT SHALL BE PAID AT SUCH EMPLOYEE'S THEN CURRENT RATE OF BASIC PAY FOR.

B-201031, AUGUST 3, 1981, 60 COMP.GEN. 623

COMPENSATION - AGGREGATE LIMITATION - APPLICABILITY TO CREDIT HOURS - FLEXI-TIME EXPERIMENT A GRADE GS-16, STEP 4 EMPLOYEE OF THE NATIONAL SECURITY AGENCY, BEING PAID $50,112.50 PER ANNUM, THE MAXIMUM SALARY PAYABLE UNDER 5 U.S.C. 5308, WAS TRANSFERRED FROM AN OFFICE PARTICIPATING IN A FLEXI TIME EXPERIMENT UNDER TITLE I OF THE FEDERAL EMPLOYEES FLEXIBLE AND COMPRESSED WORK SCHEDULES ACT OF 1978, TO AN OFFICE NOT PARTICIPATING. HE MAY BE PAID FOR HIS ACCUMULATED CREDIT HOURS UNDER THE AUTHORITY OF SECTION 106 OF THAT ACT. THE LIMITATIONS ON MAXIMUM ALLOWABLE PAY IN 5 U.S.C. 5547 AND 5308, AND SECTION 304 OF THE LEGISLATIVE BRANCH APPROPRIATION ACT OF 1979, DO NOT APPLY TO PAYMENTS FOR CREDIT HOURS.

MATTER OF: PAUL E. PETERS - FLEXIBLE WORK SCHEDULES - APPLICATION OF PAY CEILING TO CREDIT HOUR PAYMENT, AUGUST 3, 1981:

THIS DECISION IS AT THE REQUEST OF MR. W. SMALLETS, FINANCE AND ACCOUNTING OFFICER, NATIONAL SECURITY AGENCY, WHO ASKS WHETHER THE MAXIMUM PAY LIMITATION IMPOSED BY 5 U.S.C. 5308 (1976) APPLIES TO PAYMENTS FOR ACCRUED CREDIT HOURS AUTHORIZED BY SECTION 106(B) OF THE FEDERAL EMPLOYEES FLEXIBLE AND COMPRESSED WORK SCHEDULES ACT OF 1978, PUBLIC LAW 95-390, SEPTEMBER 29, 1978, 92 STAT. 755, 758, 5 U.S.C. 6101 NOTE.

MR. SMALLETS STATES THAT MR. PAUL E. PETERS, A GRADE GS-16, STEP 4 EMPLOYEE OF THE NATIONAL SECURITY AGENCY, EARNING THE MAXIMUM $50,112.50 PER ANNUM ALLOWED BY 5 U.S.C. 5308, WAS TRANSFERRED FROM AN OFFICE WHICH PARTICIPATED IN AN ALTERNATIVE WORK SCHEDULES EXPERIMENT UNDER TITLE I OF PUBLIC LAW 95-390, TO AN OFFICE WHICH WAS NOT PARTICIPATING IN SUCH AN EXPERIMENT. MR. PETERS WAS PAID $138.52 IN COMPENSATION FOR 5 3/4 CREDIT HOURS EARNED DURING THE PAY PERIOD OF JUNE 22 TO JULY 5, 1980. MR. PETERS SUBSEQUENTLY PAID BACK $138.52 TO THE NATIONAL SECURITY AGENCY PENDING RECEIPT OF A DECISION FROM THE COMPTROLLER GENERAL AS TO THE APPLICATION OF 5 U.S.C. 5308 TO THE PAYMENT FOR CREDIT HOURS.

THE FEDERAL EMPLOYEES FLEXIBLE AND COMPRESSED WORK SCHEDULES ACT OF 1978, PUBLIC LAW 95-390, PROVIDES IN SECTION 106(A) THAT FULL-TIME EMPLOYEES MAY ACCUMULATE NOT MORE THAN 10 CREDIT HOURS WHICH CAN BE CARRIED OVER INTO SUCCEEDING PAY PERIODS. UPON TERMINATION OF AN EMPLOYEE'S PARTICIPATION IN AN EXPERIMENT UNDER TITLE I OF THE ACT, SECTION 106(B) AUTHORIZES PAYMENT FOR ACCUMULATED CREDIT HOURS AS FOLLOWS:

(B) ANY EMPLOYEE WHO IS ON A FLEXIBLE SCHEDULE EXPERIMENT UNDER THIS TITLE AND WHO IS NO LONGER SUBJECT TO SUCH AN EXPERIMENT SHALL BE PAID AT SUCH EMPLOYEE'S THEN CURRENT RATE OF BASIC PAY FOR--

(1) IN THE CASE OF A FULL TIME EMPLOYEE, NOT MORE THAN 10 CREDIT HOURS ACCUMULATED BY SUCH EMPLOYEE * * * .

SECTION 5308 OF TITLE 5, U.S.C. HOWEVER, LIMITS THE PAY OF EMPLOYEES AS FOLLOWS:

PAY MAY NOT BE PAID, BY REASON OF ANY PROVISION OF THIS SUBCHAPTER, AT A RATE IN EXCESS OF THE RATE OF BASIC PAY FOR LEVEL V OF THE EXECUTIVE SCHEDULE.

THE QUESTION, THEREFORE, IS WHETHER SECTION 5308 OPERATES TO PREVENT PAYMENT FOR CREDIT HOURS ACCUMULATED UNDER TITLE I OF THE FEDERAL EMPLOYEES FLEXIBLE AND COMPRESSED WORK SCHEDULES ACT OF 1978 TO THOSE INDIVIDUALS ALREADY BEING PAID AT THE LEVEL V CEILING.

WE CONCLUDE THAT SECTION 5308 DOES NOT PREVENT PAYMENT FOR CREDIT HOURS AS THAT SECTION APPLIES ONLY TO "PAY" UNDER "ANY PROVISION OF THIS SUBCHAPTER" (PAY COMPARABILITY SYSTEM) AND NOT TO PAYMENTS AUTHORIZED ELSEWHERE. 55 COMP.GEN. 196 (1975). SINCE PAYMENTS FOR ACCUMULATED CREDIT HOURS ARE NOT AUTHORIZED IN THE PAY COMPARABILITY SYSTEM SUBCHAPTER, BUT ARE AUTHORIZED BY PUBLIC LAW 95-390, 5 U.S.C. 6101 NOTE, THOSE PAYMENTS ARE NOT LIMITED BY THE RESTRICTIONS IN 5 U.S.C. 5308.

THERE ARE TWO OTHER STATUTORY PAY LIMITATIONS, HOWEVER, WHICH MUST ALSO BE CONSIDERED IN THIS MATTER. THE FIRST IS 5 U.S.C. 5547 WHICH STATES:

AN EMPLOYEE MAY BE PAID PREMIUM PAY UNDER SECTIONS 5542, 5545(A) (C), AND 5546(A), (B) OF THIS TITLE ONLY TO THE EXTENT THAT THE PAYMENT DOES NOT CAUSE HIS AGGREGATE RATE OF PAY FOR ANY PAY PERIOD TO EXCEED THE MAXIMUM RATE FOR GS-15.

SINCE PAYMENT FOR CREDIT HOURS IS NOT A FORM OF PREMIUM PAY UNDER EITHER 5 U.S.C. 5542, 5545(A)-(C), OR 5546(A) OR (B), THE LIMITATION IN 5 U.S.C. 5547 HAS NO APPLICATION TO THE ACCUMULATION OF CREDIT HOURS OR TO PAYMENT FOR CREDIT HOURS.

THE SECOND PAY LIMITATION APPLICABLE AT THE TIME OF THE PAYMENT TO MR. PETERS IS FOUND IN SECTION 101(C) OF PUBLIC LAW 96-86, OCTOBER 12, 1979, 93 STAT. 656 (H.J. RES. 412) WHICH REFERS TO AND APPLIES THE PAY LIMITATION IN SECTION 304 OF THE LEGISLATIVE BRANCH APPROPRIATION ACT OF 1979, PUB. L. 95-391, SEPTEMBER 30, 1978, 92 STAT. 763, 788, WHICH STATES AS FOLLOWS:

SEC. 304. (A) NO PART OF THE FUNDS APPROPRIATED FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 1979, BY THIS ACT OR ANY OTHER ACT MAY BE USED TO PAY THE SALARY OR PAY OF ANY INDIVIDUAL IN ANY OFFICE OR POSITION IN THE LEGISLATIVE, EXECUTIVE, OR JUDICIAL BRANCH, OR IN THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, AT A RATE WHICH EXCEEDS THE RATE (OR MAXIMUM RATE, IF HIGHER) OF SALARY OR BASIC PAY PAYABLE FOR SUCH OFFICE OR POSITION FOR SEPTEMBER 30, 1978, IF THE RATE OF SALARY OR BASIC PAY FOR SUCH OFFICE OR POSITION IS--

(2) LIMITED TO A MAXIMUM RATE WHICH IS EQUAL TO OR GREATER THAN THE RATE OF BASIC PAY FOR SUCH LEVEL V (OR TO A PERCENTAGE OF SUCH A MAXIMUM RATE) BY REASON OF SECTION 5308 OF TITLE 5, U.S.C. OR ANY OTHER PROVISION OF LAW OR CONGRESSIONAL RESOLUTION.

(C) FOR PURPOSES OF ADMINISTERING ANY PROVISION OF LAW, RULE, OR REGULATION WHICH PROVIDES RETIREMENT, LIFE INSURANCE, OR OTHER EMPLOYEE BENEFIT, WHICH REQUIRES ANY DEDUCTION OR CONTRIBUTION, OR WHICH IMPOSES ANY REQUIREMENT OR LIMITATION, ON THE BASIS OF A RATE OF SALARY OR BASIC PAY, THE RATE OF SALARY OR BASIC PAY PAYABLE AFTER THE APPLICATION OF THIS SECTION SHALL BE TREATED AS THE RATE OF SALARY OR BASIC PAY.

WE DO NOT VIEW CREDIT HOURS AS SALARY OR PAY IN THE SENSE CONTEMPLATED BY SECTION 304 OF THE LEGISLATIVE BRANCH APPROPRIATION ACT OF 1979. THE PAYMENT FOR ACCUMULATED CREDIT HOURS IS NOT A PAYMENT OF SALARY OR BASIC PAY, BUT INSTEAD IS TO BE VIEWED AS SIMILAR IN NATURE TO THE LUMP-SUM PAYMENT FOR THE ACCRUED ANNUAL LEAVE MADE UNDER 5 U.S.C. 5551(A) WHEN AN EMPLOYEE LEAVES FEDERAL SERVICE. JUST AS THE LUMP-SUM LEAVE PAYMENT IS, UNDER THE TERMS OF SECTION 5551(A), PAY FOR TAX PURPOSES ONLY, A LUMP-SUM PAYMENT FOR ACCRUED CREDIT HOURS IS NEITHER BASIC PAY NOR SALARY FOR ANY GENERAL PURPOSE AND IS NOT PAY FOR PURPOSES OF ANY OF THE PAY CAPS DISCUSSED ABOVE. COMPARE BODINE 60 COMP.GEN. 198 (1981).

THEREFORE, SINCE NEITHER 5 U.S.C. 5547, 5308, NOR SECTION 304 OF THE LEGISLATIVE BRANCH APPROPRIATION ACT APPLIES TO LIMIT PAYMENT FOR CREDIT HOURS, MR. PETERS IS ENTITLED TO BE PAID AT HIS REGULAR HOURLY RATE FOR THE 5 3/4 CREDIT HOURS HE ACCUMULATED DURING THE PERIOD OF HIS PARTICIPATION IN THE EXPERIMENT UNDER TITLE I OF PUBLIC LAW 95-390.