B-157753, MAR. 31, 1970
Highlights
SHALL PAY HIM AT THE SAME PAY PERIOD INTERVALS AS IF STILL EMPLOYED THE SAME AMOUNT AS HIS BASIC PAY FOR THE PAY PERIOD IMMEDIATELY BEFORE SEPARATION UNTIL THE SEVERANCE PAY FUND IS EXHAUSTED. IS THE AVERAGE BASIC PAY FOR THE POSITION FOR THE 26 PAY PERIODS IMMEDIATELY BEFORE SEPARATION. YOU ALSO CONSIDER THAT IT WOULD DISTORT THE PURPOSE AND INTENT OF THE STATUTE TO PAY AN EMPLOYEE A GREATER OR LESSER AMOUNT OF SEVERANCE PAY OVER A YEAR'S TIME THAN HE WOULD HAVE RECEIVED IN A YEAR'S EMPLOYMENT IN HIS POSITION. BECAUSE OF THE PARTICULAR TIME AT WHICH HE WAS SEPARATED. WE HAVE NO OBJECTION TO THE AMENDMENT AND WE APPRECIATE YOUR GIVING US THE OPPORTUNITY TO COMMENT THEREON.
B-157753, MAR. 31, 1970
TO MR. HAMPTON:
YOUR LETTER OF MARCH 13, 1970, REQUESTS ADVICE AS TO WHETHER WE SEE ANY LEGAL OBJECTION TO A CLARIFYING AMENDMENT TO 550.704 OF THE COMMISSION'S SEVERANCE PAY REGULATIONS. THE AMENDMENT READS AS FOLLOWS (NEW MATERIAL UNDERSCORED, DELETED MATERIAL IN BRACKETS):
"(A) PAYMENT OF SEVERANCE PAY. (1) EXCEPT AS PROVIDED IN (SUBPARAGRAPH) SUBPARAGRAPHS (2) OR (3) OF THIS PARAGRAPH, ON AN EMPLOYEE'S SEPARATION, THE AGENCY SHALL COMPUTE HIS SEVERANCE PAY FUND, AND SHALL PAY HIM AT THE SAME PAY PERIOD INTERVALS AS IF STILL EMPLOYED THE SAME AMOUNT AS HIS BASIC PAY FOR THE PAY PERIOD IMMEDIATELY BEFORE SEPARATION UNTIL THE SEVERANCE PAY FUND IS EXHAUSTED, EXCEPT THAT THE FINAL PAYMENT SHALL CONSIST ONLY OF THAT PORTION OF THE SEVERANCE PAY FUND REMAINING.
"(3) FOR AN EMPLOYEE WHO SERVES IN A POSITION IN WHICH HE REGULARLY ALTERNATES BETWEEN RECEIVING ADDITIONAL ANNUAL PAY UNDER SECTION 5545 (C) (1) OF TITLE 5, U.S.C. AND NOT RECEIVING SUCH ADDITIONAL ANNUAL PAY, OR AN EMPLOYEE WHO SERVES IN A POSITION IN WHICH HE REGULARLY ALTERNATES BETWEEN FULL-TIME AND PART-TIME TOURS OF DUTY, THE BASIC PAY FOR THE PAY PERIOD IMMEDIATELY BEFORE SEPARATION, AS REQUIRED BY SUBPARAGRAPH (1) OF THIS PARAGRAPH, IS THE AVERAGE BASIC PAY FOR THE POSITION FOR THE 26 PAY PERIODS IMMEDIATELY BEFORE SEPARATION, COMPUTED ON THE BASIS OF THE BASIC RATE OF PAY IN EFFECT AT THE TIME OF SEPARATION."
THE AMENDMENT REFLECTS YOUR INTERPRETATION OF THE TERM "THE RATE RECEIVED IMMEDIATELY BEFORE SEPARATION" IN 5 U.S.C. 5595 (C) WHEN APPLIED TO AN EMPLOYEE WHOSE PAY FLUCTUATES AT REGULAR INTERVALS, EITHER BECAUSE HE HAS AN ALTERNATING PART-TIME/FULL-TIME TOUR OF DUTY OR BECAUSE HE RECEIVES UP TO 25 PERCENT ADDITIONAL PAY UNDER 5 U.S.C. 5545 (C) (1) FOR ONLY PART OF THE YEAR--FOR EXAMPLE, THE FOREST FIRE SEASON OR FISH HATCHING SEASON.
YOU CONSIDER THAT THE "RATE" FOR SUCH AN EMPLOYEE FOR SEVERANCE PAY PURPOSES REASONABLY MEANS THE AVERAGE HE WOULD RECEIVE THROUGHOUT THE YEAR IN THE POSITION FROM WHICH SEPARATED. YOU ALSO CONSIDER THAT IT WOULD DISTORT THE PURPOSE AND INTENT OF THE STATUTE TO PAY AN EMPLOYEE A GREATER OR LESSER AMOUNT OF SEVERANCE PAY OVER A YEAR'S TIME THAN HE WOULD HAVE RECEIVED IN A YEAR'S EMPLOYMENT IN HIS POSITION, BECAUSE OF THE PARTICULAR TIME AT WHICH HE WAS SEPARATED.
WE HAVE NO OBJECTION TO THE AMENDMENT AND WE APPRECIATE YOUR GIVING US THE OPPORTUNITY TO COMMENT THEREON.