B-158044, DEC. 15, 1965, 45 COMP. GEN. 345

B-158044, DEC. 15, 1965, 45 COMP. GEN. 345

COMPENSATION - PROMOTIONS - TERMINATION AND REAPPOINTMENT OF EMPLOYEE - INTERIM NONWORKDAYS A TEMPORARY EMPLOYEE TERMINATED FROM GRADE GS-2 ON FRIDAY, OCTOBER 12, 1962, AND REAPPOINTED AS A TEMPORARY GS-3 EMPLOYEE ON MONDAY, OCTOBER 15, IS CONSIDERED TO HAVE BEEN PROMOTED WITHIN THE MEANING OF SECTION 802 (B) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1132 (B), ALTHOUGH TECHNICALLY OFF THE ROLLS ON OCTOBER 14, 1962, THE EFFECTIVE DATE OF THE FEDERAL SALARY REFORM ACT OF 1962 (5 U.S.C. 1171 NOTE), AND THE EMPLOYEE IS ENTITLED TO STEP 2 OF GRADE GS-3 UNDER THE TWO-STEP PROMOTION PROVISION OF THE 1962 ACT, THE REMOVAL FROM THE ROLLS ON THE NONWORKDAYS NOT HAVING INTERRUPTED HER CONTINUOUS SERVICE, THE 1962 SALARY INCREASE EFFECTIVE ON THE LAST WORKDAY ,IMMEDIATELY PRIOR TO THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS ON OR AFTER THE DATE OF ENACTMENT OF THIS ACT" OPERATES TO PLACE THE EMPLOYEE IN STEP 2 OF GRADE GS-2 ON OCTOBER 12, THEN THE PROMOTION PREDICATED ON THE INCREASED SALARY RATE ENTITLES THE EMPLOYEE TO STEP 2 OF GRADE GS-3 AS OF OCTOBER 15, 1962, IN ACCORDANCE WITH THE TWO-STEP PROMOTION REQUIREMENT OF THE 1962 ACT.

TO THE SECRETARY OF THE TREASURY, DECEMBER 15, 1965:

THIS IS IN REPLY TO LETTER OF NOVEMBER 15, 1965, FROM THE ASSISTANT SECRETARY FOR ADMINISTRATION, REGARDING THE PROPER SALARY TO WHICH MRS. VIRGINIA L. HUME IS ENTITLED UNDER THE PROVISIONS OF THE FEDERAL SALARY REFORM ACT OF 1962, PUBLIC LAW 87-793, APPROVED OCTOBER 11, 1962, 76 STAT. 841, 5 U.S.C. 1171 NOTE.

THE FOLLOWING FACTS WERE SET FORTH IN THE LETTER OF NOVEMBER 15, 1965:

* * * MRS. HUME HAS RECEIVED TEMPORARY APPOINTMENTS AS A CLERK GS-2 DURING SEVERAL TAX FILING PERIODS BEGINNING IN 1955. ON OCTOBER 11, 1961, SHE RECEIVED ANOTHER TEMPORARY APPOINTMENT NOT TO EXCEED DECEMBER 10, 1962, AS CLERK GS-2, $3,500 P.A., IN THE COLLECTION DIVISION. ON FRIDAY, OCTOBER 12, 1962, THE DISTRICT OFFICE TERMINATED THE APPOINTMENT OF MRS. HUME AND SEVERAL OTHER GS-2 TEMPORARY EMPLOYEES AND REAPPOINTED THEM THE FOLLOWING MONDAY, OCTOBER 15, AS TEMPORARY EMPLOYEES, GS-3.

ON OCTOBER 11, 1962, THE SALARY REFORM ACT WAS PASSED AND BECAME EFFECTIVE IN IRS ON OCTOBER 14, THE FIRST DAY OF THE FIRST PAY PERIOD AFTER THE ENACTMENT OF THE LAW. THIS ACT PROVIDED SALARY ADVANCES FOR THOSE EMPLOYEES ON THE ROLLS IMMEDIATELY PRIOR TO THE ENACTMENT. TECHNICALLY, MRS. HUME WAS OFF THE ROLLS BECAUSE OF OUR TERMINATION. HOWEVER, NO WORK DAYS WERE LOST AND THERE WAS NO REAL BREAK IN SERVICE. HAD THIS TERMINATION BEEN EFFECTIVE SATURDAY, OCTOBER 13, AND THE REAPPOINTMENT EFFECTIVE SUNDAY, OCTOBER 14, MRS. HUME, AS A RESULT OF THE NEW LAW, WOULD HAVE BEEN AUTOMATICALLY ENTITLED TO STEP 2 OF GS-2, $3,665. HER "PROMOTION" TO GS-3 (WHICH HAD TO BE AT LEAST THE EQUIVALENT OF TWO STEPS MORE THAN HER SALARY AT THAT TIME) WOULD HAVE INCREASED HER SALARY TO $3,925, (THE PAY FOR GS-3, STEP 2 IN OCTOBER 1962) INSTEAD OF $3,820, (GS-3, STEP 1).

WITH RESPECT TO THE INITIAL ADJUSTMENT OF SALARY RATES SUBSECTION 602 (B) OF THE FEDERAL SALARY REFORM ACT OF 1962, 5 U.S.C. 1113 NOTE, PROVIDES IN PERTINENT PART AS FOLLOWS:

(B) THE RATES OF BASIC COMPENSATION OF OFFICERS AND EMPLOYEES TO WHOM COMPENSATION SCHEDULE I OF THE GENERAL SCHEDULE SET FORTH IN SUBSECTION (A) OF THIS SECTION APPLIES SHALL, SUBJECT TO THE PROVISIONS OF PARAGRAPH (10) OF THIS SUBSECTION, BE INITIALLY ADJUSTED, EFFECTIVE ON THE FIRST DAY OF THE FIRST PAY PERIOD BEGINNING ON OR AFTER THE DATE OF ENACTMENT OF THIS ACT, AS FOLLOWS:

(1) IF THE OFFICER OR EMPLOYEE IS RECEIVING BASIC COMPENSATION IMMEDIATELY PRIOR TO THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS ON OR AFTER THE DATE OF ENACTMENT OF THIS ACT AT THE FIRST, SECOND, THIRD, FOURTH, FIFTH, SIXTH, OR SEVENTH SCHEDULED RATE, OR AT THE FIRST OR SECOND LONGEVITY RATE OF A GRADE BELOW GRADE 4 OF THE GENERAL SCHEDULE OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, HE SHALL BE ADVANCED AS FOLLOWS: EMPLOYEES IN STEP 1 TO STEP 2 OF THE NEW SCHEDULE; * * *

IN VARIOUS SITUATIONS THE NONWORKDAYS FALLING BETWEEN OTHERWISE CONTINUOUS PERIODS OF SERVICE ARE NOT REGARDED AS INTERRUPTING SUCH SERVICE. FOR EXAMPLE, THE PRIOR REGULATIONS OF THE CIVIL SERVICE COMMISSION PERTAINING TO LONGEVITY INCREASES PROVIDED THAT THE CONTINUOUS PERIOD OF SERVICE REQUIRED BY LAW AS ONE OF THE CONDITIONS FOR ENTITLEMENT TO SUCH INCREASES WAS NOT BROKEN BY A BREAK IN SERVICE OF LESS THAN FOUR WORKWEEKS. THE CURRENT REGULATIONS OF THE COMMISSION PERTAINING TO PAY UNDER THE CLASSIFICATION ACT, 5 CFR 531.202, REFER TO A BREAK IN SERVICE AS ONE WORKDAY IN DEFINING THE TERMS "REEMPLOYMENT" AND "TRANSFER.' ALSO, OUR DECISION IN 31 COMP. GEN. 215 (ANSWER TO QUESTION 6), INDICATES THAT THE "CONTINUOUS PERIOD OF NINETY DAYS UNDER ONE OR MORE APPOINTMENTS WITHOUT A BREAK IN SERVICE" AS USED IN THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, REFERS TO A BREAK IN SERVICE OF ONE OR MORE WORKDAYS.

IN VIEW OF THE ABOVE WE BELIEVE THERE IS A REASONABLE BASIS FOR THE VIEW THAT THE TERM ,IMMEDIATELY PRIOR TO THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS ON OR AFTER THE DATE OF ENACTMENT OF THIS ACT" REFERS TO THE LAST WORKDAY BEFORE THE BEGINNING OF THE PAY PERIOD, AND WE SO HOLD. LIKEWISE, WE HOLD THAT THE ADVANCEMENT OF THE EMPLOYEE HERE INVOLVED FROM THE GRADE GS-2 POSITION SHE HELD ON FRIDAY, OCTOBER 12, 1962, THE LAST WORKDAY PRECEDING THE NEW PAY PERIOD, TO A GRADE GS 3 POSITION ON MONDAY, OCTOBER 15, 1962, IS TO BE REGARDED AS A PROMOTION WITHIN THE MEANING OF SECTION 802 (B) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1132 (B). WE NOTE THAT THE CIVIL SERVICE COMMISSION REGULATIONS DEFINE "PROMOTION" AS A CHANGE OF AN EMPLOYEE, WHILE CONTINUOUSLY EMPLOYED, FROM ONE CLASSIFICATION ACT GRADE TO A HIGHER CLASSIFICATION ACT GRADE. 5 CFR 531.202.

WE HAVE HELD THAT UNDER THE LANGUAGE OF A SALARY INCREASE ACT SIMILAR TO THAT HERE INVOLVED THE INCREASE PROVIDED THEREBY OPERATES ONLY ON THE BASIC COMPENSATION AN EMPLOYEE WAS RECEIVING IMMEDIATELY PRIOR THERETO AND THAT ANY PROMOTION EFFECTIVE ON THE SAME DATE WOULD BE PREDICATED ON THE INCREASED SALARY RATE. 40 COMP. GEN. 184. APPLYING THAT RULE TO THE INSTANT CASE IT APPEARS THAT SECTION 602 (B) OF THE 1962 SALARY INCREASE ACT, SUPRA, WOULD FIRST OPERATE TO PLACE THE EMPLOYEE IN STEP 2 OF GRADE GS-2. THEN SECTION 802 (B) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED BY THE 1962 ACT (TWO STEP PROMOTION REQUIREMENT), WOULD OPERATE TO PLACE THE EMPLOYEE IN STEP 2 OF GRADE GS-3 AS OF OCTOBER 15, 1962.

THE EMPLOYEE'S SALARY RATE IS FOR ADJUSTMENT IN ACCORDANCE WITH THIS DECISION.