B-233946.2, Dec 14, 1989

B-233946.2: Dec 14, 1989

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An employee is entitled to have his salary computed in accord with the highest previous rate rule. determining employee's highest previous rate. An agency uses scheduled salary for grade and step of the position held by the employee regardless of whether he was paid a special rate of pay under 5 U.S.C. 5303. David Robledo: This is in response to your letter of December 17. Asking us to decide whether your salary was correctly set following your reemployment with the Department of the Interior. Although your submission is inappropriate for a decision of the Comptroller General. The following information is being provided for your assistance. It appears that your concern is that upon being reemployed at the Bureau of Reclamation shortly after you were terminated due to a reduction in force (RIF).

B-233946.2, Dec 14, 1989

CIVILIAN PERSONNEL - Compensation - Rates - Determination - Highest previous rate rule DIGEST: Upon reemployment following a RIF, an employee is entitled to have his salary computed in accord with the highest previous rate rule. determining employee's highest previous rate, an agency uses scheduled salary for grade and step of the position held by the employee regardless of whether he was paid a special rate of pay under 5 U.S.C. 5303. See 5 C.F.R. Sec. 531.203.

David Robledo:

This is in response to your letter of December 17, 1988, asking us to decide whether your salary was correctly set following your reemployment with the Department of the Interior, Bureau of Reclamation, on November 6, 1988. Although your submission is inappropriate for a decision of the Comptroller General, the following information is being provided for your assistance.

Although not perfectly clear from your submission, it appears that your concern is that upon being reemployed at the Bureau of Reclamation shortly after you were terminated due to a reduction in force (RIF), the agency placed you in a position at a higher grade than your previous position but at a lower pay rate than you had been receiving. At the time of the RIF, you were a grade 11, step 7, with a scheduled pay rate of $33,260. You were actually being paid $36,819 apparently because your former position was one in which there was difficulty in recruiting and retaining employees thereby enabling your agency to pay you a special rate of pay in excess of your scheduled pay rate pursuant to 5 U.S.C. 5303. See David C. Starkie, B-229316, Apr. 18, 1988. When hired in November 1988, your new position was a grade 12, step 2, with a scheduled pay rate of $34,325 and a special pay rate of $35,065. Based on these facts, you have asked for waiver of an unidentified regulation apparently for the purpose of having the benefit of your special rate of pay be take into account so as to have your salary upon reemployment be in excess of your previous special rate of pay. /1/

Upon reemployment you were entitled to the benefit of your highest previous rate in setting the pay rate for your new position. See 5 C.F.R. Sec. 531.203. In establishing the highest previous rate, however, in the absence or prior approval from the Office of Personnel Management, the agency does not take into account a special rate that has been paid an employee but only the scheduled pay rate for the grade and step of the position previously held by the employee. See 5 C.F.R. Sec. 531.203(d)(3). Therefore, for purposes of this rule, your highest previous rate was $33,260. In setting the basic pay for your new position, the maximum rate to which you were entitled was the lowest step of the grade which was equal to or higher than your previous highest rate. See 5 C.F.R. Sec. 531.203(c)(1). Thus, upon appointment in November of 1988, you were entitled to be placed in step 2 of a grade 12, since this was the lowest step in grade 12 that exceeded the scheduled rate for a grade 11, step 7.

Thus, your agency complied with the highest previous rate rule in setting your new rate of pay which was at the maximum scheduled rate allowed by law. There is no authority for this regulation to be waived, especially since the regulation specifically contemplates situations such as yours involving special rates of pay.

/1/ It appears that you want your scheduled pay to be increased with a corresponding increase in your present special pay rate.

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