B-132206, AUGUST 23, 1957, 37 COMP. GEN. 134

B-132206, AUGUST 23, 1957, 37 COMP. GEN. 134

COMPENSATION - PERIODIC STEP-INCREASES - WAITING PERIOD COMMENCEMENT - DEMOTIONS AND REPROMOTIONS - BREAK IN SERVICE - WHEN-ACTUALLY-EMPLOYED EMPLOYEES AN EMPLOYEE WHO HAS NOT COMPLETED THE TEN-YEAR AGGREGATE SERVICE REQUIREMENT AT THE MAXIMUM OF THE GRADE WHEN DEMOTED AND WHO IS GRANTED A LONGEVITY INCREASE BASED ON THREE CONTINUOUS YEARS OF SERVICE IN THE HIGHER GRADE MAY ON SUBSEQUENT REPROMOTION HAVE THE SAME THREE YEARS OF LONGEVITY PERIOD SERVICE USED TO QUALIFY FOR A TEN-YEAR AGGREGATE SERVICE LONGEVITY INCREASE. UNDER SECTION 704 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1124, LONGEVITY CREDIT FOR GRADES 11 TO 15 IS LIMITED TO THREE YEARS OR MORE OF SERVICE IMMEDIATELY PRECEDING SEPTEMBER 12, 1954--- THE EFFECTIVE DATE OF THE AMENDATORY ACT OF SEPTEMBER 1, 1954--- AND, THEREFORE, AN EMPLOYEE WHO DID NOT PERFORM HIS LONGEVITY SERVICE IN GRADE GS-11 IMMEDIATELY PRECEDING SEPTEMBER 12, 1954, IS NOT ENTITLED TO A LONGEVITY STEP-INCREASE ON REPROMOTION TO GRADE GS-11, AND AN EMPLOYEE WHO WAS PROMOTED FROM GS-11 TO GS-12 IN 1952 AFTER FOUR YEARS OF SERVICE IN THE TOP STEP OF GRADE GS-11 IS CONSIDERED TO HAVE RECEIVED A CHANGE IN GRADE SO AS TO PRECLUDE PRIOR GS-11 SERVICE CREDIT FOR LONGEVITY PURPOSES ON SUBSEQUENT REPROMOTION TO GRADE GS-11 FROM GRADE GS-9. AN EMPLOYEE WHO, PRIOR TO A BREAK IN SERVICE IN EXCESS OF FOUR WORKWEEKS, HAS COMPLETED THREE YEARS CONTINUOUS SERVICE AT THE TOP OF THE GRADE, BUT BEFORE COMPLETION OF THE TEN-YEAR AGGREGATE PERIOD, IS NOT REQUIRED TO SERVE ANOTHER THREE-YEAR LONGEVITY PERIOD AFTER REEMPLOYMENT IN ADDITION TO COMPLETING THE TEN-YEAR AGGREGATE PERIOD; HOWEVER, IN CASE AN EMPLOYEE HAS NOT COMPLETED THREE CONTINUOUS YEARS OF SERVICE AND HAS A BREAK IN SERVICE IN EXCESS OF FOUR WORKWEEKS NO PRIOR SERVICE CREDIT FOR LONGEVITY PURPOSES IS PERMITTED. WHEN-ACTUALLY-EMPLOYED EMPLOYEES WHO PERFORM SERVICE IN EXCESS OF 40 HOURS A WEEK, BUT WHO HAVE NO REGULARLY SCHEDULED TOUR OF DUTY, MAY NOT HAVE THE EXCESS WORK CREDITED TO SHORTEN THE PERIOD OF 52 OR 78 CALENDAR WEEKS REQUIRED FOR PERIODIC STEP-INCREASE PURPOSES, THEREFORE, WHEN AN EMPLOYEE HAS PERFORMED THE REQUIRED CALENDAR PERIOD AND WITHIN THAT PERIOD HAS SERVED THE REQUIRED HOURS AT STRAIGHT TIME RATES, HE HAS MET THE WAITING PERIOD REQUIREMENT FOR PERIODIC STEP-INCREASES, REGARDLESS OF HOW THE HOURS ARE DIVIDED AMONG THE CALENDAR WEEKS.

TO THE SECRETARY OF AGRICULTURE, AUGUST 23, 1957:

ON JUNE 13, 1957, YOUR ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION CONCERNING THE PROPER ACTION TO TAKE IN THE SEVERAL SITUATIONS INVOLVING LONGEVITY AND REGULAR WITHIN-GRADE INCREASES IN COMPENSATION HEREINAFTER SET FORTH.

SITUATION 1.

EMPLOYEE ATTAINED MAXIMUM SCHEDULED RATE OF GS-4 ON NOVEMBER 12, 1950. SHE DID NOT MEET THE 10-YEAR AGGREGATE PERIOD REQUIREMENT AT THAT TIME. SHE WAS DEMOTED TO THE MAXIMUM SCHEDULED RATE OF GS-3 ON MAY 10, 1954. EFFECTIVE SEPTEMBER 12, 1954, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 703 (A) OF THE CLASSIFICATION ACT, AS AMENDED BY SECTION 102 (A) (1) OF THE FRINGE EMPLOYMENT BENEFITS ACT OF SEPTEMBER 1, 1954, SHE WAS GRANTED ONE LONGEVITY INCREASE IN GS-3, BASED ON HER PREVIOUS GS-4 SERVICE OF MORE THAN THREE CONTINUOUS YEARS AT THE MAXIMUM SCHEDULED RATE ( NOVEMBER 12, 1950, TO MAY 10, 1954). ON OCTOBER 31, 1955, THE EMPLOYEE WAS REPROMOTED TO THE TOP SCHEDULED RATE OF GS-4. APPROXIMATELY FIVE AND ONE-HALF MONTHS LATER, SHE MET THE 10-YEAR AGGREGATE PERIOD REQUIREMENT IN GS-4. INDICATED, THE TIME PREVIOUSLY SERVED AT THE MAXIMUM SCHEDULED RATE OF GS- 4 HAD ALREADY BEEN USED TO GRANT A LONGEVITY INCREASE IN GS-3. * * * ARE WE CORRECT IN ASSUMING THAT WHERE THE 3 YEARS OF LONGEVITY PERIOD SERVICE HAVE BEEN USED IN GRANTING A LONGEVITY INCREASE IN A LOWER GRADE, THIS WILL NOT PRECLUDE USING THEM AGAIN TO GRANT A LONGEVITY INCREASE IN THE GRADE IN WHICH SUCH SERVICE WAS COMPLETED, OR IN AN INTERMEDIATE GRADE UPON REPROMOTION OF THE EMPLOYEE TO THAT GRADE?

SECTION 703 (B) (3) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 968, 5 U.S.C. 1123 (B) (3), PROVIDES:

(3) NO OFFICER OR EMPLOYEE SHALL RECEIVE MORE THAN ONE LONGEVITY STEP- INCREASE FOR ANY THREE YEARS OF CONTINUOUS SERVICE.

SECTION 703 (A) OF THAT ACT, 5 U.S.C. 1123 (A), AS ORIGINALLY ENACTED REQUIRED THREE YEARS OF CONTINUOUS SERVICE FOR LONGEVITY PURPOSES "WITHOUT CHANGE OF GRADE.' THAT SECTION TOGETHER WITH SECTION 703 (B) ABOVE, 5 U.S.C. 1123 (B), RESTRICTED THE 3-YEAR RULE TO SERVICE IN THE SAME GRADE. HOWEVER, UPON DEMOTION AFTER SATISFYING THE 3-YEAR REQUIRED BUT PRIOR TO COMPLETION OF 10 YEARS AGGREGATE SERVICE, AND SUBSEQUENT REPROMOTION TO SAME GRADE, THE EMPLOYEE WAS PERMITTED TO USE THE 3 YEARS SERVED IN THE HIGHER GRADE PRIOR TO DEMOTION FOR LONGEVITY PURPOSES IN THE HIGHER GRADE. 33 COMP. GEN. 271. THE AMENDATORY LANGUAGE OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1105, 5 U.S.C. 1105,"WITHOUT INCREASE IN GRADE" PERMITS THE CREDITABLE SERVICE IN THE HIGHER GRADE TO BE USED FOR A LONGEVITY IN THE GRADE TO WHICH DEMOTED. WE DO NOT VIEW THE AMENDMENT AS OPERATING TO BROADEN THE ORIGINAL COVERAGE OF SECTION 703 (B) (3) AND PROHIBITING THE USE OF THE 3 YEARS CONTINUOUS SERVICE CREDIT OF THE HIGHER GRADE UPON REPROMOTION SOLELY BECAUSE THE CREDIT WAS USED TO GIVE THE EMPLOYEE A LONGEVITY INCREASE IN A LOWER GRADE. THEREFORE, WE HOLD THAT IN THE EXAMPLE SET FORTH IN THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER THE 3 YEARS CONTINUOUS SERVICE AT THE MAXIMUM SCHEDULED RATE OF GS- 4 PRIOR TO THE DEMOTION MAY BE USED TO GRANT A LONGEVITY INCREASE IN GRADE GS-4 UPON REPROMOTION. THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.

SITUATION 2.

WE HAVE AN EMPLOYEE WHO REACHED THE TOP SCHEDULED RATE OF GS-11 AFTER SEVEN AND ONE-HALF YEARS IN THE GRADE. HE SERVED AT THE TOP RATE FOR 4 YEARS AND 11 MONTHS, FROM MAY 12, 1947, TO APRIL 12, 1952. ON APRIL 13, 1952, HE WAS PROMOTED TO GS-12 AND ON MARCH 29, 1954, WAS DEMOTED TO GS-9 AT THE TOP SCHEDULED RATE. REPROMOTION TO THE TOP SCHEDULED RATE OF GS-11 WAS EFFECTED ON JUNE 5, 1955. THE SIMILARITY BETWEEN THIS AND CASE 1, ABOVE, WILL BE NOTED. IT SEEMS CLEAR THAT THE EMPLOYEE WAS ENTITLED TO ONE LONGEVITY INCREASE IN GS-9, EFFECTIVE SEPTEMBER 12, 1954, BUT QUESTION ARISES ABOUT HIS ENTITLEMENT TO A LONGEVITY INCREASE IN GS-11 UPON REPROMOTION TO THAT GRADE ON JUNE 5, 1955. * * * AS A FURTHER EXAMPLE TO ILLUSTRATE OUR POINT, AN EMPLOYEE WHO HAD 4 CONTINUOUS YEARS AT THE TOP OF GS-11 FROM 1948 TO 1952, FOLLOWED BY PROMOTION FOR A YEAR TO GS-12 AND THEN A CHANGE BACK TO THE TOP OF GS-11 IN JANUARY 1954 WOULD, IN OUR OPINION, BE AS ENTITLED TO ONE LONGEVITY INCREASE IN GS-11 ON SEPTEMBER 12, 1954, AS WOULD ANOTHER EMPLOYEE WHO HAD BEEN 4 CONTINUOUS YEARS AT THE TOP OF GS-11 ON SEPTEMBER 12, 1954, ASSUMING BOTH EMPLOYEES WERE OTHERWISE ELIGIBLE.

SECTION 704 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED BY SECTION 103 (A), 5 U.S.C. 1124 (A), AND (B), 5 U.S.C. 1124 (B), OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1105, PROVIDES:

SEC. 704. IN THE CASE OF OFFICERS AND EMPLOYEES IN GRADES 11 TO 15, INCLUSIVE, OF THE GENERAL SCHEDULE WHO ARE RECEIVING COMPENSATION AT OR ABOVE THE MAXIMUM SCHEDULED RATES FOR THEIR RESPECTIVE GRADES ON THE DATE IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS AMENDATORY SECTION, NOT TO EXCEED THREE YEARS OF SERVICE PERFORMED IMMEDIATELY PRECEDING SUCH EFFECTIVE DATE SHALL BE COUNTED TOWARD LONGEVITY STEP INCREASES UNDER SECTION 703. * * *

(B) THE AMENDMENT MADE BY SUBSECTION (A) SHALL BECOME EFFECTIVE AT THE BEGINNING OF THE FIRST PAY PERIOD FOLLOWING THE DATE OF ENACTMENT OF THIS ACT. ( ITALICS SUPPLIED.)

THE ABOVE LANGUAGE IS SPECIFIC IN LIMITING CREDIT IN GRADES 11 TO 15 FOR PAST SERVICE TO NOT TO EXCEED THREE YEARS OF SERVICE PERFORMED "IMMEDIATELY PRECEDING" THE EFFECTIVE DATE OF THE AMENDATORY SECTION. THEREFORE, SINCE THE EMPLOYEE IN THE FIRST ILLUSTRATION DID NOT PERFORM HIS THREE YEARS OR MORE OF SERVICE IN GS-11 IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE AMENDATORY SECTION, NO CREDIT MAY BE ALLOWED TOWARD A LONGEVITY STEP-INCREASE IN GS-11 FOR THE PERIOD FROM 1947 TO 1952 WHEN HE SERVED AT THE MAXIMUM SCHEDULED RATE IN GS-11. IN THE SECOND ILLUSTRATION THE PROMOTION FROM GS-11 TO GS-12 IN 1952 ELIMINATES ANY CREDIT FOR SERVICE PERFORMED PRIOR TO THE PROMOTION TOWARD THE REQUIRED THREE YEARS OF CONTINUOUS SERVICE IN GS-11 FOR A LONGEVITY STEP-INCREASE. THE PROMOTION WOULD CONSTITUTE A CHANGE IN GRADE OR RATE OF BASIC COMPENSATION UNDER SECTION 703 (A) OF THE CLASSIFICATION ACT OF 1949 BEFORE ITS AMENDMENT. IT ALSO WOULD CONSTITUTE AN INCREASE IN GRADE OR RATE OF BASIC COMPENSATION AFTER THE AMENDATORY ACT OF SEPTEMBER 1, 1954. THE EMPLOYEE WHO HAD FOUR YEARS OF CONTINUOUS SERVICE AT THE TOP OF GS-11 IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE ACT IS ENTITLED TO CREDIT FOR THREE YEARS OF THAT SERVICE TOWARD A LONGEVITY STEP-INCREASE IN GS- 11.

SITUATION 3.

THIS SITUATION CONCERNS THE QUESTION WHETHER AN EMPLOYEE WHO HAS A BREAK IN SERVICE OF MORE THAN FOUR WORKWEEKS AFTER COMPLETING THE THREE YEAR LONGEVITY PERIOD, BUT BEFORE COMPLETING THE TEN-YEAR AGGREGATE PERIOD, MUST SERVE ANOTHER THREE-YEAR LONGEVITY PERIOD AFTER REEMPLOYMENT IN ADDITION TO COMPLETING THE TEN-YEAR AGGREGATE PERIOD.

THE CIVIL SERVICE COMMISSION HAS ADVISED US THAT THE STATEMENT IN SECTION 25.52 OF THE FEDERAL EMPLOYEES PAY REGULATIONS THAT "A NEW LONGEVITY PERIOD BEGINS WHEN A LONGEVITY STEP INCREASE IS EFFECTED, OR AFTER A BREAK IN SERVICE IN EXCESS OF FOUR WORKWEEKS" WAS NOT INTENDED TO REQUIRE THE SERVING OF A SECOND THREE-YEAR LONGEVITY PERIOD FOR ONE LONGEVITY STEP- INCREASE WHEN ONE SUCH PERIOD HAD BEEN COMPLETED BEFORE A BREAK IN SERVICE. IN CONNECTION THEREWITH THE COMMISSION FURNISHED THE FOLLOWING STATEMENT:

THE THREE-YEAR LONGEVITY PERIOD AT THE MAXIMUM RATE OR A LONGEVITY RATE, WHILE IT MAY OCCUR AT ANY TIME WITHIN THE AGGREGATE PERIOD (33 COMP. GEN. 271) IS REQUIRED BY THE LAW TO BE "THREE YEARS OF CONTINUOUS SERVICE" (SECTION 703 (A) OF THE CLASSIFICATION ACT). IT IS THIS REQUIREMENT OF CONTINUITY WHICH IS THE REASON FOR THE PROVISION IN THE DEFINITION OF "LONGEVITY PERIOD" (SECTION 25.52 (D) ( THAT A NEW LONGEVITY PERIOD BEGINS AFTER A BREAK IN SERVICE IN EXCESS OF FOUR WORKWEEKS.

THEREFORE, AND SINCE WE ARE OF THE VIEW THAT THE REGULATION, AS CLARIFIED BY THE CIVIL SERVICE COMMISSION, IS REASONABLE WE HOLD THAT AN EMPLOYEE WHO HAS A BREAK IN SERVICE OF MORE THAN FOUR WORKWEEKS AFTER COMPLETING THE THREE-YEAR LONGEVITY PERIOD, BUT BEFORE COMPLETING THE TEN-YEAR AGGREGATE PERIOD, IS NOT REQUIRED TO SERVE ANOTHER THREE YEAR LONGEVITY PERIOD AFTER REEMPLOYMENT IN ADDITION TO COMPLETING THE TEN-YEAR AGGREGATE PERIOD. CF. 33 COMP. GEN. 271. IN OUR DECISION B 128620, AUGUST 1, 1956, REFERRED TO BY YOU, THE EMPLOYEE ON MAY 14, 1950, RECEIVED A PROMOTION TO THE MAXIMUM SCHEDULED RATE OF GS-4. ON JANUARY 21, 1952, SHE RECEIVED AN INDEFINITE APPOINTMENT IN THE DEPARTMENT OF AGRICULTURE TO THE MAXIMUM SCHEDULED RATE OF GS-3. THIS CONSTITUTED A CHANGE IN GRADE UNDER SECTION 703 (A) OF THE CLASSIFICATION ACT OF 1949 BEFORE ITS AMENDMENT BY THE ACT OF SEPTEMBER 1, 1954, AND, THEREFORE, THE EMPLOYEE WAS REQUIRED TO BEGIN A NEW THREE YEAR LONGEVITY PERIOD. ON JUNE 19, 1953, SHE RESIGNED AND WAS NOT REEMPLOYED UNTIL NOVEMBER 29, 1954. THUS, IT WILL BE SEEN THAT SHE WAS NOT IN THE SERVICE WHEN THE AMENDATORY ACT OF SEPTEMBER 1, 1954, BECAME EFFECTIVE AND THAT THE BREAK IN SERVICE IN EXCESS OF 4 WORKWEEKS OCCURRED PRIOR TO HER COMPLETION OF 3-YEAR CONTINUOUS SERVICE. WE HELD THAT SINCE HER SERVICE WAS BROKEN BY A PERIOD OF MORE THAN 4 WORKWEEKS SHE FORFEITED ANY CREDIT FOR PRIOR SERVICE TOWARD A LONGEVITY INCREASE.

SITUATION 4.

THIS SITUATION CONCERNS W.A.E. EMPLOYEES WITH NO ADMINISTRATIVELY ESTABLISHED WORKWEEK. THE SPECIFIC QUESTION INVOLVED IS WHETHER SERVICE IN EXCESS OF 40 HOURS PER WEEK PERFORMED BY W.A.E. EMPLOYEES WITH NO REGULARLY SCHEDULED TOURS OF DUTY MAY BE CREDITED TOWARD THEIR PERIODIC STEP INCREASES. IN OUR DECISION 34 COMP. GEN. 471 WE HELD THAT W.A.E. EMPLOYEES WITH NO ADMINISTRATIVELY ESTABLISHED WORKWEEKS MAY NOT BE PAID OVERTIME COMPENSATION BUT ARE ENTITLED TO STRAIGHT TIME COMPENSATION FOR ALL HOURS WORKED IN A PARTICULAR BI-WEEKLY PAY PERIOD, IRRESPECTIVE OF WHETHER SERVICES BE PERFORMED IN EXCESS OF 40 HOURS PER WEEK.

SECTION 25.11 (E) OF THE FEDERAL EMPLOYEES PAY REGULATIONS PROVIDES THAT "FOR INTERMITTENT PART-TIME OR W.A.E. EMPLOYEES THE WAITING PERIOD SHALL BE 2,080 OR 3,120 HOURS IN A PAY STATUS DURING THE APPLICABLE TIME PERIOD OF NOT LESS THAN 52 OR 78 CALENDAR WEEKS.' PARAGRAPH (1) OF THE SAME SUBSECTION PROVIDES THAT CREDITABLE SERVICE INCLUDES "CONTINUOUS PAID CIVILIAN EMPLOYMENT * * * BUT NOT INCLUDING SERVICE PAID AT OVERTIME RATES.' THE PERFORMANCE OF MORE THAN 40 HOURS OF SERVICE IN A WEEK DOES NOT SHORTEN THE PERIOD OF 52 OR 78 CALENDAR WEEKS REQUIRED FOR A PERIODIC INCREASE. THEREFORE, WHEN THE EMPLOYEE HAS PERFORMED THE REQUIRED CALENDAR PERIOD AND WITHIN THAT PERIOD HAS SERVED THE REQUIRED HOURS AT STRAIGHT TIME RATES, HE HAS MET THE WAITING PERIOD REQUIREMENT FOR A PERIODIC INCREASE, REGARDLESS OF HOW THE HOURS MAY HAVE BEEN DIVIDED AMONG THE CALENDAR WEEKS OF THE WAITING PERIOD.