B-51310, AUGUST 11, 1945, 25 COMP. GEN. 178

B-51310: Aug 11, 1945

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1945: I HAVE YOUR LETTER OF JULY 19. AS FOLLOWS: REFERENCE IS MADE TO DECISION 20 COMP. WHOSE ACTUAL EMPLOYMENT IS SEASONAL. THERE IS FREQUENTLY AN OPPORTUNITY TO EMPLOY SUCH PERSONNEL BETWEEN FIRE SEASONS ON OTHER CLASSES OF WORK FOR WHICH QUALIFIED AT CURRENT WAGE RATES THAT MAY BE LOWER OR HIGHER THAN THE SALARY RATE OF THE EMPLOYEE'S REGULAR POSITION. THE FOREST SERVICE HAS CONSIDERED SUCH BETWEEN-SEASON EMPLOYMENT (THAT IS. EMPLOYMENT ON JOBS OTHER THAN THE POSITION FOR WHICH THE EMPLOYEE IS REGULARLY APPOINTED) AS BEING ENTIRELY UNRELATED TO THE PERIODIC PROMOTIONS. $4.50) WERE GIVEN SEVERAL WEEKS EMPLOYMENT AS A LABORER AT $4.00 A DAY. IF LABORER WAGES WERE $5.00 A DAY. IF AN EMPLOYEE WERE EMPLOYED SIX MONTHS IN THE REGULAR PROTECTION POSITION AT $1620 AND BETWEEN SEASONS EMPLOYED AS A LABORER AT $4.00 A DAY FOR TWO MONTHS.

B-51310, AUGUST 11, 1945, 25 COMP. GEN. 178

COMPENSATION - WITHIN-GRADE PROMOTIONS - SEASONAL EMPLOYEES - ELIGIBILITY AS AFFECTED BY TEMPORARY BETWEEN-SEASON EMPLOYMENT AT HIGHER OR LOWER RATES BETWEEN-SEASON TEMPORARY EMPLOYMENT OF FOREST SERVICE FIRE PROTECTION PERSONNEL AT A RATE HIGHER OR LOWER THAN THAT RECEIVED IN THEIR REGULAR SEASONAL POSITIONS HELD UNDER CONTINUOUS APPOINTMENTS MAY BE DISREGARDED INSOFAR AS THE RESULTING RATE CHANGE MIGHT BE CONSIDERED AN "EQUIVALENT INCREASE IN COMPENSATION" AFFECTING THEIR RIGHT TO WITHIN-GRADE PROMOTIONS UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AND APPLICABLE REGULATIONS; BUT ALL CONTINUOUS EMPLOYMENT IN BOTH THE REGULAR SEASONAL POSITIONS AND THE TEMPORARY POSITIONS--- WHETHER OR NOT WITHIN THE PURVIEW OF THE CLASSIFICATION ACT--- MAY BE CREDITED FOR WITHIN-GRADE PROMOTION PURPOSES. 21 COMP. GEN. 369, AND 22 ID. 1051, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, AUGUST 11, 1945:

I HAVE YOUR LETTER OF JULY 19, 1945, AS FOLLOWS:

REFERENCE IS MADE TO DECISION 20 COMP. GEN. 335 HOLDING THAT THE FIRE PROTECTION PERSONNEL IN THE FOREST SERVICE UNDER CONTINUOUS APPOINTMENT, BUT WHOSE ACTUAL EMPLOYMENT IS SEASONAL, MAY BE CONSIDERED IN INVOLUNTARY FURLOUGH STATUS BETWEEN SEASONS AND DURING SUCH PERIOD BE EMPLOYED IN THE SAME OR A DIFFERENT DEPARTMENT WITHOUT CONTRAVENING THE DUAL COMPENSATION STATUTES.

AS EXPLAINED IN THE SUBMISSION RESULTING IN THE ABOVE-MENTIONED DECISION, THERE IS FREQUENTLY AN OPPORTUNITY TO EMPLOY SUCH PERSONNEL BETWEEN FIRE SEASONS ON OTHER CLASSES OF WORK FOR WHICH QUALIFIED AT CURRENT WAGE RATES THAT MAY BE LOWER OR HIGHER THAN THE SALARY RATE OF THE EMPLOYEE'S REGULAR POSITION. WHILE THAT DECISION ACCOMPLISHES THE VERY DESIRABLE OBJECT OF INCREASING THE EARNING PERIOD FOR THESE SEASONAL EMPLOYEES THERE HAS RECENTLY ARISEN QUESTION AS TO THE EFFECT, IF ANY, OF THE BETWEEN-SEASON EMPLOYMENT ON THE PERIODIC PROMOTIONS AUTHORIZED BY ACT OF AUGUST 1, 1941 (55 STAT. 613). THE FOREST SERVICE HAS CONSIDERED SUCH BETWEEN-SEASON EMPLOYMENT (THAT IS, EMPLOYMENT ON JOBS OTHER THAN THE POSITION FOR WHICH THE EMPLOYEE IS REGULARLY APPOINTED) AS BEING ENTIRELY UNRELATED TO THE PERIODIC PROMOTIONS. AS AN ILLUSTRATION, IF AN EMPLOYEE AT $1620 (DAILY EQUIVALENT, $4.50) WERE GIVEN SEVERAL WEEKS EMPLOYMENT AS A LABORER AT $4.00 A DAY, HE WOULD NOT UPON RETURN TO THE REGULAR DUTIES AT THE $1620 RATE BE CONSIDERED AS HAVING RECEIVED AN INCREASE IN COMPENSATION EQUIVALENT TO ONE STEP OR MORE IN HIS GRADE; OR, IF LABORER WAGES WERE $5.00 A DAY, IT WOULD NOT BE CONSIDERED THAT IN ACCEPTING THAT EMPLOYMENT HE HAD RECEIVED SUCH AN INCREASE SO AS TO PRECLUDE OR DELAY A PROMOTION BASED ON EMPLOYMENT IN THE REGULAR POSITION. CONSISTENTLY WITH THIS THE EMPLOYEE HAS NOT BEEN CREDITED WITH THE TIME SERVED IN THE BETWEEN-SEASON EMPLOYMENT, EXCEPT AS TO THE 30 DAYS THAT MAY BE CREDITED FOR NON-PAY STATUS UNDER THE REGULATIONS, REFERRED TO IN DECISION 21 COMP. GEN. 791. IN MOST CASES DESPITE EMPLOYMENT AT EVERY OPPORTUNITY THERE WOULD BE AN ACTUAL NON PAY STATUS OF MORE THAN 30 DAYS, AND THE MISCELLANEOUS EMPLOYMENT WOULD BE CONSIDERED ALSO AS NON-PAY STATUS WITH RESPECT TO PROMOTION IN THE REGULAR POSITION.

AS AN EXAMPLE, IF AN EMPLOYEE WERE EMPLOYED SIX MONTHS IN THE REGULAR PROTECTION POSITION AT $1620 AND BETWEEN SEASONS EMPLOYED AS A LABORER AT $4.00 A DAY FOR TWO MONTHS, THE FOREST SERVICE PRACTICE WOULD BE TO CREDIT HIM WITH SEVEN MONTHS TOWARD PERIODIC PROMOTIONS AND NOT TO CONSIDER THAT RESUMPTION OF DUTY IN THE REGULAR POSITION AT THE BEGINNING OF THE NEXT SEASON CONSTITUTED AN INCREASE IN COMPENSATION FROM $4.00 A DAY TO $1620 PER ANNUM. SIMILARLY, IF THE TWO-MONTHS' EMPLOYMENT WERE AT $5.00 A DAY, IT WOULD NOT BE CONSIDERED THAT WHEN ENTERING ON SUCH WORK THE EMPLOYEE HAD RECEIVED AN INCREASE IN SALARY EQUIVALENT TO ONE STEP IN THE $1620 GRADE AND HE WOULD STILL BE GIVEN SEVEN MONTHS PERIODIC-PROMOTION CREDIT IN THE $1620 POSITION.

IN ORDER THAT THERE MAY BE NO UNCERTAINTY CONCERNING THE PROPRIETY OF THIS PROCEDURE, I SHOULD BE GLAD TO HAVE YOUR DECISION AS TO WHETHER EMPLOYMENT IN OTHER POSITIONS DURING SUCH PERIODS OF INVOLUNTARY FURLOUGH FROM AN EMPLOYEE'S REGULAR POSITION (A) MAY BE DISREGARDED WITH RESPECT TO PROVISIONS OF THE 1941 ACT (AMENDED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945) RELATIVE TO EQUIVALENT INCREASES IN SALARY, AND CREDITABLE TIME TOWARD PROMOTION IN THE REGULAR POSITION, OR (B)MUST BE GOVERNED BY THE RULES STATED IN 21 COMP. GEN. 369 AND 22 COMP. GEN. 1051 CONCERNING RESTORATIONS AND TEMPORARY ASSIGNMENTS INVOLVING CHANGES IN RATES OF PAY. ASSUMING THAT THE PAST PRACTICE IS ACCEPTABLE WITH RESPECT TO EMPLOYMENT IN LABORER POSITIONS DURING THE PERIOD OF INVOLUNTARY FURLOUGH FROM THE REGULAR POSITION, FURTHER DECISION IS DESIRED AS TO FOLLOWING THE SAME PRACTICE WHERE BETWEEN-SEASON TEMPORARY EMPLOYMENT IS OBTAINED IN A CLASSIFIED POSITION EITHER IN THIS OR A DIFFERENT DEPARTMENT.

SO FAR AS HERE MATERIAL, THE RULES PRESCRIBED BY THE CIVIL SERVICE COMMISSION UNDER SUBSECTION (B) OF SECTION 7 OF THE CLASSIFICATION ACT, AS AMENDED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, 59 STAT. 299, PUBLIC LAW 106, RELATING TO "PERIODIC WITHIN- GRADE SALARY ADVANCEMENTS" ( CHAP. II, DEPARTMENTAL CIRCULAR NO. 529, DATED JUNE 30, 1945), ARE SUBSTANTIALLY THE SAME AS THE CORRESPONDING PROVISIONS IN EXECUTIVE ORDER 8862 DATED SEPTEMBER 3, 1941, EFFECTIVE OVER PERIODS PRIOR TO JULY 1, 1945, WHICH PROVISIONS WERE IN EFFECT WHEN THE DECISIONS MENTIONED IN YOUR LETTER WERE RENDERED.

THE DECISION OF DECEMBER 30, 1940, 20 COMP. GEN. 335, TO WHICH YOU REFER, RENDERED PRIOR TO THE EFFECTIVE DATE OF THE WITHIN-GRADE PROMOTION LAW, HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

FOREST GUARDS WHO HAVE CONTINUING APPOINTMENTS BUT WHOSE ACTUAL EMPLOYMENT IN THAT CAPACITY IS SEASONAL MAY BE CONSIDERED AS ON INVOLUNTARY FURLOUGH WITHOUT PAY DURING PERIODS BETWEEN SEASONS OF EMPLOYMENT (EXCEPT ON SUCH DAYS AS THEY ARE INTERMITTENTLY EMPLOYED AS GUARDS) AND THEIR EMPLOYMENT, DURING SUCH PERIODS, IN SEPARATE AND DISTINCT POSITIONS IN THE SAME OR DIFFERENT DEPARTMENTS WOULD NOT CONTRAVENE THE DUAL COMPENSATION STATUTES IF NOT MORE THAN ONE SALARY BE PAID FOR ANY DAY.

FOREST GUARDS WHOSE ACTUAL SERVICE IN THAT CAPACITY UNDER CONTINUING APPOINTMENTS IS SEASONAL MAY BE TEMPORARILY EMPLOYED, DURING PERIODS BETWEEN THE EMPLOYMENT SEASONS, IN SEPARATE AND DISTINCT POSITIONS HAVING CLASSIFIED RATES, EITHER ON THE BASIS OF THE PER ANNUM RATE OR THE EQUIVALENT PER DIEM OR HOURLY RATE.

THE ADMINISTRATIVE PROCEDURE AUTHORIZED IN THAT DECISION DID NOT INVOLVE THE FORMAL TRANSFER OF EMPLOYEES FROM THEIR REGULAR SEASONAL POSITIONS TO TEMPORARY POSITIONS BETWEEN SEASONS OF THE YEAR WHEN THEY WERE NOT NEEDED IN THEIR REGULAR POSITIONS, BUT SUCH PROCEDURE IS UNDERSTOOD TO RESULT IN A CONDITION SOMEWHAT SIMILAR TO THE "UP AND DOWN" SALARY CHANGES OF EMPLOYEES IN MORE THAN ONE POSITION DURING THE SAME PERIOD OF TIME. HENCE, THE RULE STATED IN THE DECISIONS CITED (21 COMP. GEN. 369; 22 ID. 1051) IN THE CONCLUDING PARAGRAPH OF YOUR LETTER THAT A TEMPORARY APPOINTMENT INVOLVING AN INCREASE IN COMPENSATION PROPERLY IS TO BE REGARDED AS AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE LAW AND REGULATIONS, WOULD NOT NECESSARILY BE FOR APPLICATION IN THE SITUATION HERE PRESENTED. HOWEVER, IT IS CLEAR THAT ALL CONTINUOUS CIVILIAN EMPLOYMENT UNDER THE GOVERNMENT IS CREDITABLE TOWARD A WITHIN- GRADE SALARY ADVANCEMENT. SEE SECTION 301 (A), PART III, CHAP. II, OF THE CURRENT REGULATIONS OF THE CIVIL SERVICE COMMISSION, SUPRA.

ACCORDINGLY, IN THE SITUATIONS HERE PRESENTED, THERE MAY BE APPLIED- - SUBJECT TO THE TERMS AND CONDITIONS OF THE NEW PAY LAW--- THE RULE STATED IN DECISION OF FEBRUARY 14, 1942, 21 COMP. GEN. 773 (QUOTING FROM THE SYLLABUS):

CIVILIAN EMPLOYEES OF THE ENGINEER DEPARTMENT OF THE ARMY WHO, PURSUANT TO AN ADMINISTRATIVE REGULATION PROVIDING FOR TEMPORARY "UP AND DOWN" SALARY CHANGES DISTINGUISHED FROM SALARY CHANGES UNDER RULES AND REGULATIONS APPLICABLE TO GOVERNMENT AGENCIES GENERALLY, ARE TEMPORARILY ASSIGNED FOR 30 DAYS OR LESS TO POSITIONS--- EITHER WITHIN OR WITHOUT THE CLASSIFICATION ACT--- PAYING HIGHER OR LOWER SALARIES THAN THEIR REGULAR POSITIONS AND WHO ARE RESTORED TO THEIR REGULAR POSITIONS AND SALARIES UPON COMPLETION OF SUCH ASSIGNMENTS ARE ENTITLED, IF OTHERWISE ELIGIBLE, TO WITHIN-GRADE SALARY ADVANCEMENTS UNDER THE ACT OF AUGUST 1, 1941, AFTER 18 OR 30 MONTHS FROM THE LAST EQUIVALENT COMPENSATION INCREASE RECEIVED IN THEIR REGULAR POSITIONS, WITHOUT REGARD TO THE SALARY CHANGES RESULTING FROM THE TEMPORARY ASSIGNMENTS. 21 COMP. GEN. 285 AND 21 COMP. GEN. 326, DISTINGUISHED.

THAT IS TO SAY, THE TEMPORARY INCREASES OR DECREASES IN COMPENSATION RESULTING FROM TEMPORARILY OCCUPYING CLASSES OF POSITION BETWEEN SEASONS OTHER THAN THEIR REGULAR SEASONAL POSITION MAY BE DISREGARDED SO FAR AS CONCERNS THE DEFINITION OF THE TERM "EQUIVALENT INCREASE IN COMPENSATION; " BUT ALL CONTINUOUS CIVILIAN EMPLOYMENT BOTH IN THE REGULAR SEASONAL POSITION AND IN THE TEMPORARY POSITION OCCUPIED BETWEEN SEASONS--- EITHER WITHIN OR WITHOUT THE PURVIEW OF THE CLASSIFICATION ACT--- MAY BE COUNTED PURSUANT TO THE TERMS OF THE CURRENT REGULATIONS IN COMPUTING THE 12 OR 18 MONTHS' SERVICE REQUIRED BY THE NEW PAY STATUTE IN DETERMINING AN EMPLOYEE'S ELIGIBILITY FOR A WITHIN-GRADE SALARY ADVANCEMENT SO FAR AS LENGTH OF SERVICE IS CONCERNED. COMPARE ANSWER TO QUESTION 18, DECISION OF JULY 28, 1945, B 51009, 25 COMP. GEN. 121, TO YOU, RELATIVE TO OVERTIME COMPENSATION OF LABORERS WORKING ONE DAY OF THEIR BASIC WORKWEEK AS A FIRE FIGHTER.