B-131471, JULY 31, 1957, 37 COMP. GEN. 64

B-131471, JULY 31, 1957, 37 COMP. GEN. 64

CIVILIAN EMPLOYEES - DUAL COMPENSATION PROHIBITION IN ACT OF MAY 10, 1916 - COMPENSATION - ADDITIONAL PART-TIME, INTERMITTENT EMPLOYMENTS UNDER THE DUAL COMPENSATION ACT OF MAY 10, 1916, 5 U.S.C. 58, WHICH PROHIBITS THE AVAILABILITY OF APPROPRIATIONS FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT EXCEEDS $2,000 PER ANNUM, THE COURTS HAVE INTERPRETED THE WORD "SALARY" AS NOT APPLYING TO PERSONS EMPLOYED ON AN INTERMITTENT BASIS, AND, THEREFORE, INTERMITTENT EMPLOYMENTS ARE NOW HELD TO BE OUTSIDE THE PURVIEW OF SUCH PROHIBITION. PART-TIME EMPLOYMENTS ARE SUBJECT TO THE DUAL COMPENSATION ACT OF MAY 10, 1916, 5 U.S.C. 58, WHICH PROHIBITS THE AVAILABILITY OF APPROPRIATIONS FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT EXCEEDS $2,000 PER ANNUM. THE FACT THAT EMPLOYEES ARE IN A LEAVE-WITHOUT-PAY STATUS WHILE EMPLOYED IN OTHER FEDERAL POSITIONS DOES NOT EXEMPT THEM FROM THE DUAL COMPENSATION ACT OF MAY 10, 1916, 5 U.S.C. 58, WHICH PROHIBITS THE AVAILABILITY OF APPROPRIATIONS FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT EXCEEDS $2,000 PER ANNUM. ALTHOUGH EMPLOYEES HIRED ON PART-TIME BASIS MAY NOT BE APPOINTED TO OTHER PART-TIME POSITIONS WHEN THE $2,000 ANNUAL SALARY LIMITATION IN THE DUAL COMPENSATION ACT OF MAY 10, 1916, 5 U.S.C. 58, IS EXCEEDED, THEY MAY SERVE IN INTERMITTENT POSITIONS; AND, LIKEWISE, EMPLOYEES HIRED ON AN INTERMITTENT BASIS MAY SERVE IN OTHER INTERMITTENT OR PART TIME POSITIONS WITHOUT REGARD TO THE 1916 DUAL COMPENSATION ACT PROHIBITION. FOREST SERVICE EMPLOYEES, WHO ARE EMPLOYED ON A CONTINUOUS AND/OR INTERMITTENT BASIS YEAR AFTER YEAR AND WHO WORK FULL-TIME DURING THE FIELD SEASON AND AT THE END OF THE SEASON REMAIN ON ROLLS IN A NONPAY STATUS, MAY NOT DURING PERIOD OF FULL-TIME EMPLOYMENT HOLD A PART-TIME POSITION IF THE $2,000 SALARY LIMITATION IN THE DUAL COMPENSATION ACT OF MAY 10, 1916, 5 U.S.C. 58, IS EXCEEDED, BUT DURING THE PERIOD OUTSIDE OF THE FIELD SEASON THEY MAY BE CONSIDERED AS IN A FURLOUGH STATUS AND THUS THE 1916 DUAL COMPENSATION PROHIBITION WOULD NOT BE VIOLATED BY THE HOLDING OF A PART-TIME POSITION. IN VIEW OF MISUNDERSTANDING WHICH HAS PREVAILED OVER THE USE OF THE TERMS "PART-TIME" AND ,INTERMITTENT" IN CONNECTION WITH THE DUAL COMPENSATION PROHIBITION IN THE ACT OF MAY 10, 1916, 5 U.S.C. 58, RECOVERY OF COMPENSATION WHICH HAS BEEN PAID IN THOSE CASES WHICH ARE NOW HELD TO BE IN VIOLATION OF THE STATUTE WILL NOT BE REQUIRED.

TO THE SECRETARY OF AGRICULTURE, JULY 31, 1957:

ON APRIL 11, 1957, YOUR ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION UPON THE DUAL EMPLOYMENT PROBLEMS OF THE VARIOUS AGENCIES IN YOUR DEPARTMENT AS AMPLIFIED IN THE FIVE EXAMPLES HEREINAFTER SET FORTH.

THE PROBLEMS ARISE UNDER SECTION 6 OF THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, 5 U.S.C. 58. THAT ACT PROVIDES IN PERTINENT PART AS FOLLOWS:

UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY ANY ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM.

THE FEDERAL PERSONNEL MANUAL, CHAPTER R1-33, DIVIDES EMPLOYEES INTO THREE DISTINCT GROUPS AND DEFINES THEM AS FOLLOWS:

FULL-TIME EMPLOYEES ARE THOSE REGULARLY SCHEDULED TO WORK THE NUMBER OF HOURS AND DAYS REQUIRED BY THE ADMINISTRATIVE WORKWEEK FOR THEIR EMPLOYMENT GROUP OR CLASS.

PART-TIME EMPLOYEES ARE THOSE REGULARLY EMPLOYED ON A PREARRANGED SCHEDULE WHOSE HOURS OR DAYS OF WORK ARE LESS THAN THE PRESCRIBED HOURS OR DAYS OF WORK FOR FULL-TIME EMPLOYEES IN THE SAME GROUP OR CLASS.

INTERMITTENT EMPLOYEES ARE THOSE EMPLOYED ON AN IRREGULAR OR OCCASIONAL BASIS WHOSE HOURS OR DAYS OF WORK ARE NOT BASED ON A PREARRANGED SCHEDULE AND WHO ARE COMPENSATED ONLY FOR THE TIME WHEN ACTUALLY EMPLOYED OR FOR SERVICE ACTUALLY RENDERED.

THE STATUTE BY ITS TERMS APPLIES ONLY TO AN EMPLOYEE WHO IS RECEIVING MORE THAN ONE "SALARY.' THE COURTS HAVE INDICATED THAT THE WORD "SALARY" AS USED IN THE 1916 ACT DOES NOT APPLY TO PERSONS EMPLOYED ON AN INTERMITTENT BASIS. UNITED STATES V. GORMAN, 76 F.1SUPP. 218; UNITED STATES V. SHEA, 55 F.2D 382. IN LINE WITH THE JUDICIAL INTERPRETATION WE HERE HOLD THAT ALL INTERMITTENT EMPLOYMENTS ARE OUTSIDE THE PURVIEW OF THE STATUTE. WHEN A PART-TIME EMPLOYMENT EXISTS THE 1916 ACT APPLIES. THIS, OF COURSE, EXCLUDES EMPLOYMENTS UPON A FEE BASIS. 22 COMP. GEN. 312. PERIODS OF LEAVE WITHOUT PAY, AS DISTINGUISHED FROM FURLOUGH, ARE NO LONGER TO BE CONSIDERED AS PLACING THE EMPLOYEE IN A STATUS OUTSIDE THE ACT. CF. 16 COMP. GEN. 951; FEDERAL PERSONNEL MANUAL, R-1-13 (RE LWOP AND FURLOUGH). IN ARRIVING AT THESE CONCLUSIONS WE HAVE CONSIDERED NOT ONLY THE LANGUAGE OF THE STATUTE AND THE COURT INTERPRETATION BUT ALSO THE FACT THAT THE 1916 STATUTE WAS ENACTED SUBSEQUENT TO THE DUAL COMPENSATION STATUTES, 5 U.S.C. 62, ID. 69, ID. 70, AND PLACED AN ADDITIONAL RESTRICTION ON DUAL EMPLOYMENT. SEE 19 COMP. GEN. 751.

THE ADMINISTRATIVE ASSISTANT SECRETARY REQUESTS OUR DECISION CONCERNING THE EFFECT OF THE 1916 ACT UPON THE FOLLOWING EXAMPLES OF PART-TIME AND INTERMITTENT EMPLOYMENT USED IN YOUR DEPARTMENT WHEN THE EMPLOYEE HAS BEEN APPOINTED TO ANOTHER PART-TIME OR INTERMITTENT POSITION AND THERE IS NO CONFLICT OF DUTIES OR HOURS OF EMPLOYMENT BETWEEN OR AMONG THE APPOINTMENTS.

EXAMPLE A. EMPLOYEE IS APPOINTED UNDER TEMPORARY APPOINTMENT FOR SEASONAL WORK AND IS TERMINATED AT THE END OF THE SEASON. IF FULL-TIME SERVICE IS CONTEMPLATED, SALARY IS SHOWN AT A RATE PER ANNUM. IF ONLY INTERMITTENT SERVICE IS CONTEMPLATED, SALARY IS SHOWN AS W.A.E.--- EITHER PER ANNUM, PER DAY OR PER HOUR.

DURING THE PERIOD OF THE TEMPORARY SEASONAL EMPLOYMENT THE EMPLOYEE, IF FULL-TIME, MAY NOT HOLD A PART-TIME JOB IF THE COMBINED SALARIES EXCEED THE RATE OF $2,000 PER ANNUM. IN LINE WITH THE CONCLUSIONS SET OUT ABOVE INTERMITTENT EMPLOYMENT IN ANOTHER JOB WOULD NOT VIOLATE THE 1916 ACT, AND IF THE TEMPORARY SEASONAL EMPLOYMENT IS INTERMITTENT THE HOLDING OF ANOTHER PART-TIME OR INTERMITTENT POSITION IS NOT PROHIBITED BY THE ACT.

EXAMPLE B. SEVERAL THOUSAND EMPLOYEES ARE APPOINTED ANNUALLY BY THE SOIL CONSERVATION SERVICE FOR TEMPORARY, INTERMITTENT OR PART-TIME WORK IN THE FIELD SERVICE. THE SCHEDULE A EXCEPTED APPOINTMENT AUTHORIZATIONS PRINCIPALLY USED BY THE SERVICE IN MAKING THE APPOINTMENTS ARE A-6.101 (G) FOR PART-TIME OR INTERMITTENT EMPLOYEES (COMPENSATION LIMITED TO NOT MORE THAN $1,000 IN A SERVICE YEAR) AND A 6.111 (A) (5) (I) FOR SUBPROFESSIONAL AIDS, GS-1 TO GS-5 (EMPLOYMENT LIMITED TO NOT IN EXCESS OF 180 DAYS A YEAR). A MAJORITY OF THE A 6.101 (G) APPOINTEES ARE TYPISTS AND CLERKS, LOCAL TO THE AREA OF EMPLOYMENT AND AVAILABLE ONLY FOR PART-TIME OR INTERMITTENT WORK BECAUSE OF THEIR USUAL DUTIES AT HOME. MOST OF THE A- 6.111 (A) (5) (I) APPOINTEES ARE FARMERS OR OTHER LOCAL RESIDENTS WHO RECEIVE THEIR PRINCIPAL INCOME FROM FARMING OR OTHER SOURCES AND AS A RULE ARE AVAILABLE ONLY FOR TEMPORARY INTERMITTENT OR SEASONAL WORK.

IF A REGULAR TOUR OF DUTY OF LESS THAN 8 HOURS PER DAY FIVE DAYS A WEEK IS ASSIGNED TO THESE EMPLOYEES, THEY ARE REGARDED AS "PART-TIME" EMPLOYEES. IF THERE IS NO REGULAR TOUR OF DUTY, THEY ARE REGARDED AS "INTERMITTENT" EMPLOYEES. W.A.E. IS SHOWN ON THE APPOINTMENT ACTIONS OF ONLY THOSE EMPLOYEES APPOINTED FOR INTERMITTENT SERVICE WITH NO REGULAR TOUR OF DUTY AND THE SALARY IS SHOWN AT A RATE PER HOUR. THE SALARY FOR PART-TIME EMPLOYEES WITH A REGULAR TOUR OF DUTY IS SHOWN AT A RATE PER ANNUM.

THE PART-TIME EMPLOYEES MAY NOT BE APPOINTED TO ANOTHER PART-TIME POSITION OF THE $2,000 SALARY RATE LIMITATION IS EXCEEDED BUT THEY MAY SERVE IN AN INTERMITTENT JOB, AS THE COMPENSATION ATTACHED TO SUCH AN EMPLOYMENT IS NOT VIEWED AS SALARY. FOR LIKE REASON THE INTERMITTENT EMPLOYEES MAY SERVE IN ANOTHER INTERMITTENT OR PART-TIME POSITION.

EXAMPLE C. COLLEGE STUDENTS ARE EMPLOYED BY SOME OF OUR AGENCIES FOR TEMPORARY OR CONTINUOUS SERVICE ON EITHER A PART-TIME OR INTERMITTENT BASIS, DEPENDING ON THE NEED FOR THEIR SERVICES AND AVAILABILITY OF THE INDIVIDUALS. THE EMPLOYEES MAY OR MAY NOT HAVE A REGULARLY SCHEDULED TOUR OF DUTY. THOSE WITH A REGULARLY SCHEDULED TOUR OF LESS THAN 40 HOURS A WEEK ARE REGARDED AS ,PART-TIME," IN ACCORDANCE WITH THE CURRENT CIVIL SERVICE DEFINITION OF THAT TERM, AND THOSE WITH A REGULAR TOUR ARE REGARDED AS "INTERMITTENT.' BECAUSE OF THE CONFUSION THAT EXISTS IN REGARD TO THE EXACT MEANING OF "PART-TIME" AND "INTERMITTENT" WHEN USED IN CONTEXT WITH EITHER REGULARLY SCHEDULED OR IRREGULAR TOURS OF DUTY AND WITH PAYMENT ON A W.A.E. BASIS, EMPLOYMENT OFFICERS IN THESE AGENCIES HAVE ADOPTED THE PRACTICE OF SHOWING " W.A.E.' (EITHER PER ANNUM, PER DAY, OR PER HOUR) ON THE APPOINTMENT FORMS, REGARDLESS OF WHETHER THE EMPLOYEES ARE PART-TIME OR INTERMITTENT OR HAVE A REGULARLY SCHEDULED TOUR OF DUTY. THERE ARE CASES, HOWEVER, WHERE THE " W.A.E.' INSCRIPTION HAS BEEN OMITTED.

THE ANSWERS TO QUESTION B APPLY TO THE SEVERAL CLASSES OF EMPLOYMENTS EMBRACED IN THIS EXAMPLE.

EXAMPLE D. THE FOREST SERVICE GIVES SEVERAL THOUSAND EMPLOYEES A "CONTINUOUS AND/OR INTERMITTENT" APPOINTMENT EACH YEAR. EMPLOYEES SO APPOINTED ARE AVAILABLE YEAR AFTER YEAR. THEY ARE SELECTED FROM CIVIL SERVICE REGISTERS AND ARE APPOINTED UNDER REGULAR CIVIL SERVICE PROCEDURES APPLICABLE TO PERMANENT EMPLOYEES. THEY WORK FULL TIME DURING THE FIELD SEASON. AT THE END OF THE SEASON THEY REMAIN ON THE ROLLS IN A NON-PAY STATUS ALTHOUGH NO "FURLOUGH" ACTION IS PROCESSED FOR THEM.

THE "CONTINUOUS AND/OR INTERMITTENT" APPOINTMENT PERMITS FOREST SERVICE TO PLACE THEM IN A NON-PAY STATUS WITHOUT RESORTING TO REDUCTION-IN-FORCE PROCEDURES. THIS ARRANGEMENT IS APPROVED BY THE CIVIL SERVICE COMMISSION. THE EMPLOYEES MAY BE CALLED TO WORK INTERMITTENTLY, IF NEEDED, DURING THE PERIOD WHEN THEY ARE IN A NON-PAY STATUS. THE SALARY IS GENERALLY SHOWN AS PER ANNUM BUT IS SOMETIMES SHOWN AS A DUAL RATE, I.E., PER ANNUM OR PER DAY, W.A.E.

DURING THE PERIOD OF FULL-TIME EMPLOYMENT THE EMPLOYEES MAY NOT HOLD A PART-TIME POSITION IF THE $2,000 SALARY RATE LIMITATION IN THE 1916 ACT IS EXCEEDED. THE PERIOD OUTSIDE THE FIELD SEASON MAY BE CONSIDERED FOR 1916 ACT DUAL COMPENSATION PURPOSES AS SIMILAR TO A PERIOD OF FURLOUGH; THUS, THE PROVISIONS OF THE ACT WOULD NOT BE VIOLATED BY THE HOLDING OF A PART- TIME POSITION BY SUCH EMPLOYEES WHILE DEEMED IN SUCH FURLOUGH STATUS. SEE 20 COMP. GEN. 335; 16 ID. 951. BOTH DURING AND AFTER THE FIELD SEASON INTERMITTENT EMPLOYMENT WOULD BE PROPER UNDER THE ACT BECAUSE OF THE CONCLUSION HEREIN THAT COMPENSATION ATTACHED TO INTERMITTENT EMPLOYMENT IS NOT SALARY WITHIN THE MEANING OF THE 1916 ACT.

EXAMPLE E. ANOTHER AGENCY UTILIZES THE FOLLOWING TYPES OF PART-TIME AND INTERMITTENT ( WAE) EMPLOYMENT.

PART-TIME APPOINTMENT. A PERSON GIVEN A PART-TIME APPOINTMENT HAS A REGULARLY SCHEDULED TOUR OF DUTY EACH WEEK CONSISTING OF LESS THAN 40 HOURS. HIS TOUR OF DUTY IS FIXED AT THE TIME OF APPOINTMENT AND THE HOURS OF WORK ARE SPECIFIED ON THE APPOINTMENT PAPER. THE NATURE OF ACTION ON THE APPOINTMENT PAPER INCLUDES THE WORDS "PART-TIME.' THE APPOINTMENT PAPER DOES NOT INDICATE , WAE.'

INTERMITTENT ( WAE) APPOINTMENT. (A) WITHOUT A REGULAR TOUR OF DUTY. EMPLOYEE GIVEN THIS TYPE OF APPOINTMENT WORKS ONLY AT HOURS AND ON DAYS WHEN HE IS NOTIFIED THAT HIS SERVICES WILL BE NEEDED. THE NATURE OF ACTION ON THE APPOINTMENT PAPER INCLUDES THE ABBREVIATION " WAE.' IF THE POSITION IS UNDER THE CLASSIFICATION ACT, THE RATE OF PAY IS EXPRESSED AS "$----------------- PER ANNUM WAE.'

(B) WITH A REGULAR TOUR OF DUTY. OCCASIONALLY AN EMPLOYEE MAY WORK REGULARLY THE SAME DAY OR DAYS EACH WEEK BUT BE CALLED IN FREQUENTLY ON OTHER DAYS WHICH CANNOT BE DETERMINED IN ADVANCE. IN THESE CASES, THE EMPLOYEE IS GIVEN A WAE APPOINTMENT WITH A REGULAR TOUR OF DUTY. THE REGULAR TOUR CONSISTS OF THE HOURS AND DAYS WORKED REGULARLY EACH WEEK. ON THE TIME AND ATTENDANCE REPORT ALL HOURS OF THE REGULAR TOUR MUST BE ACCOUNTED FOR (EITHER BY ACTUAL WORK, LEAVE WITH PAY, LEAVE WITHOUT PAY, OR FURLOUGH WITHOUT PAY), THE SAME AS IS THE CASE WITH A FULL-TIME EMPLOYEE. OTHER HOURS OF WORK ARE SHOWN ON THE TIME AND ATTENDANCE REPORT ONLY AS PERFORMED. HERE AGAIN THE NATURE OF ACTION ON THE APPOINTMENT PAPER INCLUDES THE ABBREVIATION " WAE.' IF THE POSITION IS UNDER THE CLASSIFICATION ACT, THE COMPENSATION IS SHOWN AS "$------------- PER ANNUM WAE.' THE REGULAR TOUR OF DUTY IS SHOWN UNDER REMARKS.

THE ANSWERS TO THE SITUATIONS COVERED IN EXAMPLE B APPLY HERE.

IN VIEW OF THE MISUNDERSTANDING WHICH HAS PREVAILED OVER THE USE OF THE TERMS "PART-TIME" AND ,INTERMITTENT" INTERCHANGEABLY, WE WILL NOT INSIST ON RECOVERY OF COMPENSATION PAID IN THOSE CASES IN WHICH IT NOW APPEARS THAT APPOINTMENTS MAY HAVE BEEN MADE UNDER REGULATIONS WHICH ARE INCONSISTENT WITH THE REQUIREMENTS OF THE STATUTE. ALSO, ANY PRIOR DECISIONS OF OUR OFFICE WHICH ARE INCONSISTENT WITH THE VIEWS EXPRESSED IN THIS DECISION WILL NO LONGER BE FOLLOWED.