B-80284, OCTOBER 8, 1948, 28 COMP. GEN. 235

B-80284, OCTOBER 8, 1948, 28 COMP. GEN. 235

COMPENSATION - INITIAL SALARY RATES UPON REEMPLOYMENT THE INITIAL SALARY RATE OF A FORMER EMPLOYEE UPON REEMPLOYMENT MAY BE FIXED ADMINISTRATIVELY AT THE HIGHEST SALARY RATE USED IN COMPUTING HIS LUMP-SUM PAYMENT UNDER THE ACT OF DECEMBER 21, 1944, UPON SEPARATION FROM THE SERVICE, EVEN THOUGH THERE WAS INCLUDED IN SUCH COMPUTATION A PERIODIC PAY INCREASE WHICH WAS EARNED PRIOR TO SEPARATION BUT WHICH OTHERWISE WOULD NOT HAVE BECOME EFFECTIVE UNTIL THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING SUCH SEPARATION, AND THE PERIOD OF SERVICE FOR COMPUTING THE NEXT PERIODIC PAY INCREASE WILL COMMENCE ON THE DATE OF REEMPLOYMENT. COMP. GEN. 368, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF LABOR, OCTOBER 8, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 16, 1948, IN PERTINENT PART, AS FOLLOWS:

QUESTIONS HAVE ARISEN IN THE DEPARTMENT OF LABOR CONCERNING THE PROPER TIME FROM WHICH TO PAY CERTAIN EMPLOYEES PERIODIC PAY INCREASES AND CONCERNING THE COMPUTATION OF THE SERVICE PERIOD FOR THE NEXT SUCCEEDING PERIODIC PAY INCREASE FOR SUCH EMPLOYEES. AN EMPLOYEE OF THIS DEPARTMENT IN GRADE CAF-3 AT A SALARY RATE OF $2,318.76 PER ANNUM COMPLETED THE REQUIRED SERVICE PERIOD AND MET ALL OTHER CONDITIONS FOR A PERIODIC PAY INCREASE ON AUGUST 27, 1947. HOWEVER, HE WAS SEPARATED IN REDUCTION IN FORCE EFFECTIVE AUGUST 30, 1947, AND RECEIVED A LUMP SUM PAYMENT FOR ACCRUED ANNUAL LEAVE. AS AUTHORIZED BY YOUR DECISION NO. B-59352, AUGUST 8, 1946 (26 COMP. GEN. 102), THIS LUMP SUM WAS COMPUTED AT THE RATE OF $2,318.76 THROUGH SEPTEMBER 6, 1947, AND AT THE RATE OF $2,394.00 PER ANNUM FROM SEPTEMBER 7, 1947, THE DATE OF COMMENCEMENT OF WHAT WOULD HAVE BEEN THE PAY PERIOD NEXT SUCCEEDING THE DATE UPON WHICH THE RIGHT TO AN INCREASE IN COMPENSATION HAD BECOME COMPLETELY VESTED (FOR SAKE OF CLARITY ALL SALARY RATES HERETOFORE OR HEREAFTER MENTIONED ARE THOSE IN EFFECT PRIOR TO JULY 11, 1948).

AN OPPORTUNITY TO REEMPLOY THIS PERSON IN THE SAME GRADE AROSE RECENTLY AND HE ENTERED ON DUTY IN THE MIDDLE OF A PAY PERIOD WITHIN ONE YEAR AFTER HIS SEPARATION. THERE WAS CONSIDERABLE QUESTION AS TO WHETHER THE EMPLOYEE COULD BE COMPENSATED AT THE RATE OF $2,394.00 PER ANNUM, EFFECTIVE ON THE DATE OF REEMPLOYMENT, OR WHETHER THE HIGHEST RATE AT WHICH HE MIGHT BE COMPENSATED AT THE DATE OF REEMPLOYMENT WOULD BE THE RATE OF $2,318.76 PER ANNUM.

IN VIEW OF ALL OF THE ABOVE AND CONSIDERING THE FACTS HEREIN PRESENTED, YOUR OPINION IS REQUESTED ON THE FOLLOWING QUESTIONS:

1. WHAT IS THE EARLIEST DATE UPON WHICH PAYMENT OF THE REEMPLOYED EMPLOYEE AT THE RATE OF $2,394.00 PER ANNUM MAY COMMENCE?

2. WHAT IS THE DATE FROM WHICH THE NEXT SUCCEEDING SERVICE PERIOD FOR THE REEMPLOYED EMPLOYEE IN QUESTION SHOULD BE COMPUTED FOR PURPOSES OF ANY NEXT SUCCEEDING PERIODIC PAY INCREASE?

IN 26 COMP. GEN. 368, THE RULES WITH RESPECT TO THE SALARIES WHICH IT WOULD BE PERMISSIBLE TO PAY AN EMPLOYEE UPON TRANSFER OR REINSTATEMENT WERE COORDINATED AND RESTATED AS FOLLOWS, QUOTING FROM THE SYLLABUS:

THE INITIAL SALARY RATE OF AN EMPLOYEE IN A CLASSIFIED POSITION TO WHICH TRANSFERRED, PROMOTED, DEMOTED, REINSTATED, OR REEMPLOYED MAY, WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE--- IF APPROPRIATIONS ARE AVAILABLE --- BE FIXED AT SUCH A RATE ABOVE THE MINIMUM OF THE GRADE AS WILL NOT EXCEED THE HIGHEST SALARY ATTAINED IN ANY PRIOR GOVERNMENT POSITION, IT BEING IMMATERIAL THAT THE EMPLOYEE SUBSEQUENTLY OCCUPIED ONE OR MORE POSITIONS AT A LOWER SALARY RATE OR WITHOUT COMPENSATION: HOWEVER, SUCH RULE, BEING IN EFFECT A MODIFICATION OF EXISTING RULES, MAY NOT BE GIVEN RETROACTIVE EFFECT AS TO THE CASES ALREADY PROCESSED. 24 COMP. GEN. 226; ID. 368, OVERRULED. (AMPLIFIED BY 26 COMP. GEN. 530; ID. 601; ID. 664.)

WHILE IT IS TRUE THAT THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, 58 STAT. 845, PROVIDES THAT THE PAYMENT AUTHORIZED BY THAT ACT SHALL NOT BE REGARDED, EXCEPT FOR PURPOSES OF TAXATION, AS SALARY OR COMPENSATION, THE HIGHEST SALARY RATE USED IN THE COMPUTATION OF AN EMPLOYEE'S LUMP-SUM LEAVE PAYMENT FOR THE PURPOSE OF APPLYING THE RULE IN 26 COMP. GEN. 368, PROPERLY MAY BE CONSIDERED AS A SALARY "ATTAINED" WITHIN THE PURVIEW OF THAT DECISION. ACCORDINGLY, IN ANSWER TO YOUR QUESTIONS NOS. 1 AND 2, THE EMPLOYEE'S SALARY MAY BE FIXED AT $2,394 PER ANNUM FROM THE DATE OF HIS APPOINTMENT AND THE PERIOD OF SERVICE FOR COMPUTING HIS NEXT PERIODIC PAY INCREASE WILL COMMENCE ON THAT DATE.