B-87806, AUGUST 25, 1949, 29 COMP. GEN. 93

B-87806, AUGUST 25, 1949, 29 COMP. GEN. 93

COMPENSATION - WITHHOLDING - EMPLOYEES SEPARATED BY REDUCTION IN FORCE IN CASES WHERE EMPLOYEES WHO HAVE BEEN GIVEN A 30-DAY NOTICE OF TERMINATION OF SERVICES DUE TO REDUCTION IN FORCE REMAIN IN AN ACTIVE DUTY STATUS FOR SUCH 30-DAY PERIOD, FINAL SALARY CHECKS, THAT IS, CHECKS FOR AMOUNTS DUE AS SALARY UPON THE LAST DAY OF WORK OR ACTIVE DUTY, PROPERLY ARE FOR WITHHOLDING AS AN OFFSET AGAINST PREVIOUS SALARY OVERPAYMENTS; SIMILARLY, CHECKS ISSUED AS LUMP-SUM PAYMENTS FOR ACCRUED ANNUAL LEAVE MUST BE WITHHELD. WHEN AN EMPLOYEE WHO IS INDEBTED FOR A SALARY OVERPAYMENT APPLIES FOR AND IS GRANTED ACCUMULATED ANNUAL LEAVE UPON RECEIPT OF A NOTICE OF TERMINATION OF SERVICES DUE TO REDUCTION IN FORCE, CHECKS ISSUED IN PAYMENT OF SALARY CURRENTLY ACCRUING DURING SUCH PERIOD OF TERMINAL LEAVE WITH PAY, OTHER THAN THE CHECK FOR FINAL SALARY, MUST BE REGARDED AS CURRENT SALARY AND MAY NOT BE WITHHELD TO OFFSET THE PREVIOUS SALARY OVERPAYMENT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, AUGUST 25, 1949:

REFERENCE IS MADE TO YOUR LETTER OF JULY 11, 1949, PRESENTING FOR DECISION TWO QUESTIONS, AS FOLLOWS:

1. WHEN AN EMPLOYEE, WHO HAS BEEN GIVEN A 30-DAY NOTICE OF TERMINATION OF SERVICES, DUE TO A REDUCTION IN FORCE, REMAINS IN AN ACTIVE DUTY STATUS FOR THE 30-DAY PERIOD, WHICH CHECKS FOR SALARY, IF ANY, ARE PROPER FOR WITHHOLDING AND FORWARDING TO THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT AS AN OFFSET TO A SALARY OVERPAYMENT?

2. WHEN AN EMPLOYEE, UPON RECEIPT OF A NOTICE OF TERMINATION OF SERVICES, DUE TO A REDUCTION IN FORCE, APPLIES FOR AND IS GRANTED ACCUMULATED LEAVE, WHICH CHECKS FOR SALARY WHILE IN A LEAVE STATUS, IF ANY, ARE PROPER FOR WITHHOLDING AND FORWARDING TO THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT AS AN OFFSET TO A SALARY OVERPAYMENT?

ALSO, YOUR LETTER RAISES A QUESTION AS TO WHETHER OFFICE DECISION OF DECEMBER 3, 1936, 16 COMP. GEN. 547, SO FAR AS IT RELATES TO EMPLOYEES FURLOUGHED WITHOUT PAY, HAS BEEN MODIFIED OR SUPERSEDED.

IT HAS BEEN HELD THAT THERE IS NO PROHIBITION AGAINST WITHHOLDING, BECAUSE OF AN INDEBTEDNESS, THE SALARY OR COMPENSATION DUE AN OFFICER OR EMPLOYEE UPON HIS SEPARATION FROM THE SERVICE. 24 COMP. GEN. 334; 16 ID. 547. ACCORDINGLY, THE QUESTIONS CONTAINED IN YOUR LETTER ARE ANSWERED IN THE ORDER PRESENTED:

1. UNDER THE CIRCUMSTANCES STATED IN THE QUESTION, THE FINAL SALARY CHECK, THAT IS, THE CHECK FOR THE AMOUNT DUE AS SALARY UPON THE LAST DAY OF WORK OR ACTIVE DUTY, PROPERLY IS FOR WITHHOLDING. SIMILARLY, A CHECK ISSUED AS A LUMP PAYMENT FOR ACCRUED ANNUAL LEAVE MUST BE WITHHELD.

2. IT IS WELL SETTLED THAT ANNUAL LEAVE WITH PAY IS SYNONYMOUS WITH WORK OR ACTIVE DUTY. SEE 20 COMP. GEN. 9, AND DECISIONS CITED THEREIN. ACCORDINGLY, CHECKS ISSUED IN PAYMENT OF SALARY CURRENTLY ACCRUING DURING A PERIOD OF TERMINAL LEAVE WITH PAY, OTHER THAN THE CHECK FOR FINAL SALARY, MUST BE REGARDED AS CURRENT SALARY AND MAY NOT BE WITHHELD. THE FINAL SALARY CHECK IS FOR WITHHOLDING AS STATED IN ANSWER TO QUESTION 1.

CLAIMS FOR SUCH AMOUNTS AS MAY BE WITHHELD SHOULD BE REFERRED TO THE CLAIMS DIVISION OF THIS OFFICE FOR APPROPRIATE DISPOSITION.

WITH RESPECT TO EMPLOYEES FURLOUGHED WITHOUT PAY, THE RULE STATED IN 16 COMP. GEN. 547 STILL IS CONTROLLING, AND SUCH FURLOUGHS MAY BE REGARDED AS SEPARATIONS.