DOCUMENT RESUOE

00685 - (A105.826S

Manual on Remedies Available to Third Parties in AdjudicatingFederal Employee Grievances. FPCD-76-68. March 30, 1977. 39 pp.+ appendices.

Staff study by Elmer B. Staats, Comptroller General.

Issue Area: Personnel Management and Compensation (300).Contact: Federal Personnel and Compensation Div.Budget Function: General Government: Central Personnel

Management (805).Organization Concerned: Civil Service Commission; Department of

Labor; Federal Labor Relations Council; Federal Mediationand Conciliation Service.

congressional Relevance: House Committee on Post Office andCivil Service; Senate Committee on Governmental Affairs.

Authority: Back Pay Act of 1970 (5 U.S.C. 5596). Back Pay Act of1966 (5 U.S.C. 5596). Equal Employment Opportunity Act of1972 (42 U.S.C. 2000e-16(a) (Supp. IV); P.L. 92-26'). (5U.S.C. 6304(d) (Supp. III); P.Y. 93-161). F.P.M. ch. 335,sec. 6-4. P.P.M. Letter 630-22. 5 C.F.R. 511.701 et seq. 5C.F.R. 550.111. 5 C.F.R. 550.114(c). 5 C.F.R. 630.401. 5C.F.R. 713. 31 U.S.C. 74. 31 U.S.C. 82(d). 5 U.S.C.5542(b) (2). 5 U.S.C. 6101. 5 U.S.C. 7511(2), 5 U.S.C. 8706(Supp. III). 5 U.S.C. 8908.

Third parties under the Federal labor-managementrelations program adjudicate a wide range of issues, and theremedies they offer must conform to the requirements of law andregulation. GAO prepared the manual to assist third parties infashioning remedies consistent with Federal statutes andregulations. The manual details the available remedies for themost common cases requiring make-whole remedies. It is dividedinto separate issue areas: discharges or suspensions; demotions;promotions; leave; overtime compensation; resignation orvoluntary reduction in rank; equal employment opportunityviolations; work assignment; pay; and miscellaneous cases. Eachissue area has a general description of the type of caseinvolved and the determination a third party must make to permita particular remedy. Also listed are available remedies andtheir effective dates, the statutory authorities, and recentcomptroller General decisions as references. (Author/QM)

- .UNITED STA TESc,. GENERAL ACCOUNTING OFFICE

Manual On Remedies AvailableTo Third Parties InAdjudicating FederalEmployee Grievances

'hnird parties under the Federal labor-manage-rmnilt relations program adjudicate a widerange of issues, and +',a remedies they offermust conform to the requirements of law andregulation. Therefore, GAO prepared thismanual to assist third parties in fashioningremedies consistent with Federal statutes &aidregulations. The manual details the availableremedies for the most common cases requir-ing make-whole remedies. It does not intendto cover all situations, because many cases areunique.The Comptroller General has a statutory re-sponsibility to review awards in which agencyofficials question the propriety of Federalexpenditures ordered by a third party. Under31 U.S.C. 74 and 82 (d), disbursing officers,certifying officers, and heads of Governmentdepartments or establishments nave the rightto apply for and obtain advance decisionsfrom the Comptroller General on any ques-t;on of law involved in the expenditure ofFederal funds, intluding those ordered by abind;ng arbitration award, Assistant Secretaryof Labor decision, or Federal Labor RelationsCouncil decision.

FPCD-;6-68 -? 977FPCD-76-6877

FOREWORD

With the recent expansion of the Federal labor-management relations program, arbitration has become an im-portant procedure for adjudicating employee grievances. Cur-rently most collective bargaining agreements contain provi-bions that requize binding arbitration when the parties areunabl. to informally adjust such grievances. Similarly,other third-party activity has expanded to encompass a widerange of issues.

The Assistant Secretary of Labor for Labor ManagementRelations is authorized to hear unfair labor practice com-plaints and to require that agencies and labor organizationstake appropriate affirmative action when unfair labor prac-tices are found. This authority anables the AssistantSecretary to order agencies to take correcticve action con-sistent with laws and regulations when an employee has beendiscriminated against because of union activitiy.

As a third-party agency, the Federal Labor RelationsCouncil has the primary responsibility under Executive Order11491, as amended, of reviewing arbitration awards andAssistant Secretary decisions in which either party files anappeal. The Comptroller General has a statutory responsi-bility to review awards in which agency officials questionthe propriety of Federal expenditures ordered by a thirdparty. In this regard, unJer 31 U.S.C. 74 and 82(d), dis-bursing officers, certifying officers, and heads ofGovernment departments or establishments have the right toapply for and obtain advance decisions from the ComptrollerGeneral on any question of law involved in the expendituresof Federal funds, including expenditures ordered by a bindingarbitration award, Assistant Secretary decisions, or FederalLabor Relations Council decisions.

Sin.e all Federal expeneitures must bc authorized by lawor regulation, it is important that monetary awards conformto this criterion.

Consequently, this manual has been prepared to helpthird parties fashion remedies consistent with Federal stat-utes and regulations. In the Federal sector, remedies mustconform to the requirements of law and regulations. The BackPay Act, 5 U.S.C. 5536 (1C70), is the single most comprehen-sive statutory remedy for Federal employees who have beenwrongfully deprived through an agency action of pay, allow-ances, or differentials. This manual details the remedies

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available to third parties in adjudicating employeegrievances in certain situations, emphasizing backpay reme-dies. Examples in this manual are the most common casesthat require monetary make-whole remedies. Because manycases are unique, however, not all situations are covered.We have also included some issues normally covered by statu-tory appeals procedures.

The manual is divided into separate issue areas--dis-charges or suspensions, demotions, promotions, leave, overtimecompensation, etc. Each issue area has a general descriptionof the type of case involved and the determination a thirdparty must make to permit a particular remedy. Also listedare available remedies and their effective dates, the statu-tory authorities, and recent Comptroller General decisionsas references. Additionally, the appendixes provide supple-mental information concerning pertinent laws, regulations,and Comptroller General decisions.

We have solicited and incorporated the views of variousFederal agencies in writing this manual. The Department ofLabor, the Civil Service Commission, the Federal Mediationand Conciliation Service, and the Federal Labor RelationsCouncil have commented on a draft. Their views have nelpedto refine this manual.

Finally, recognizing the dynamic nature of this subject,we plan to update the manual as changes in laws, appropriateregulations, and Comptroller C-neral decisions occur. Theeffects of such changes on th available remedies will beconsidered and incorporated. ve hope this manual will promotebetter understanding of the available make-whole remedies andcontribute to a responsive labor-management relations program.We would appreciate the comments and suggestions of thost whouse this manual on how it may be improved.

Comptroller Generalof the United States

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Con t n t sPage

CHAPTER

1 DISCHARGE OR SUSPENSION 1-1

2 DEMOTION 2-1

3 PROMOTION 3-1Situation 1 3-1Situation 2 3-1Situation 3 3-?Considerations in directing

promotions 3-3

4 LEAVE 4-1Loss of annual leave due to an

unwarranted or unjustifiedpersonnel action 4-1

Loss of annual leave not due toan unwarranted or unjustifiedpersonnel action 4-1

Denial of annual leave for periodof absence 4-3

Denial of sick leave for periodof absence 4-5

5 OVERTIME COMPENSATION 5-1Denial of opportunity to workovertime 5-1

Change in basic workweek 5-2Work actually performed 5-4Work performed while in travel status 5-6Travel performed on weekend 5-7Compensatory time versus occa-

sional overtime compensation 5-9

6 RESIGNATION OR VOLUNTARYREDUCTION IN RANK 6-1

7 EQUAL EMPLOYMENT OPPORTUNITYVIOLATIONS 7-1

8 WORK ASSIGNMENT 8-1Job appointment 8-1Work function 8-1Temporary extended detail

to a higher grade 8-2

CHAPTER

9 PAY 9-1Rate of pay 9-1Environmental pay 9-1Periodic step increase 9-3Dues withholding 9-4

10 MISCELLANEOUS CASES 10-1Jury duty 10-1Standby duty 10-2APPENDIX

I Provisions of Back Pay Act of 1966,5 U.S.C. 5596 (1970) I-1

II Remedies not available under BackPay Act of 1966, 5 U.S.C. 5596 (1970) II-1

III Other available remedies III-1

IV Restoration of annual leave IV-l

V 5 U.S.C. 6101: general requirements V-l

VI No work, no pay rule VI-1

VII Failure to consult as provided innegotiated agreement VII-l

VIII Text of Back Pay Act of 1966.5 U.S.C. 5596, as amended throughJanuary 1, 1977 VIII-1

IX Interpretations of Back Pay Actof 1966, 5 U.S.C. 5596 (1970) IX-1

X Text of health insurance forrestored employees X-l

XI Partial text of Government lifeinsurance for restored employees XI-1

XII Partial text of special accumu-lation of annual leave XII-1

ABBREVIATIONS

AWOL absence without leave

B- Six digit number refers toComptroller General decision

Comp. Gen. Comptroller General

CSC Civil Service Commission

FLSA Fair Labor Standards Act

GS general schedule

LWOP leave without pay

WG wage system

How to Obtain Copies of This Manual-ani-omptrol erer GeeaOTT DecaTons

We invite users of this manual to provide their commentsand suggestions on how it can be improved. Should you needadditional copies of the manual, please write:

U.S. General Accounting OfficeDistribution Section, Room 4522441 G street, NW.Washington, D.C. 20548

If you need copies or additional information onComptroller General decisions referred to in this manual,please call (202) 275-5308 or write to the General Counsel,U.S. General Accounting Office, Washington, D.C. 20548.

In addition to an annual bound volume of publishedDecisions of the Comptroller General available through theGovernment Printing Office, GAO issues monthly pamphlets ofpublished and quarterly digests of unpublished decisions inprocurement law, personnel law (both civilian and military),general government matters 1 , and transportation law.

CHAPTFF 1

DISCHARGE OR SUSPENSION (See note.)

Type of case: An employee is discharged or suspendedfrom a position as a result of unsatis-

factory work performanice; a serious em-ployee action, such as theft; or a re-latively serious disciplinary problem,such as insubordinate conduct or un-explained or unexcused absences.

Determinat -n: The discharge or suspension (1) is anunjustified or unwarranted personnelaction and (2) directly results in thewithdrawal or reduction of the empluy-ee's pay, allowances, or differentials.

(See "Interpretations," app. IX.)

Available remedies: Restore employee retroactively to nosi-tion with backpay and leave (see "BackPay Act," asp. I), reinstatement of

Government life insurance (see app.III), and option of retroactive rein-statement of prior health insuranceor enrollment in new health insuranceplan of choice (see app. III).

orRecommend a lesser disciplinary sanc-tion (such as reducing it to a suspen-sion, reducing the length of suspension,or issuing a letter of reprimand) withbackpay, as appropriate, (see "Back PayAct," app. I) and, if applicable, rein-state Government life insurance (seeapp. III) and provide option of retro-active reinstatement of prior healthinsurance or tirollment in new healthinsurance plan of choice (see app. III).

Effective date The effective date of the unwarrantedof remedies: or unjustified removal or suspension.

Note: Discharges and suspensions of over 30days are adverse actions, as defined in5 U.S.C. 7511(2) (1970), for whichstatutory appeal procedures are avail-able and are thus precluded from the

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coverage and scone of a negotiatiedgrievance procedure under section 13(a)of Executive Order 11491, as amended.Therefore, they are not subject toarbitration.

Authority: Back Pay Act of 1966, 5 U.S.C. 5596(1970): 5 U.S.C. 8908: and 5 U.S.C.8706(f) (suop. III, 1973).

Reference: B-162578, May 6, 1974.

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CHAPTER 2

DEMOTION (See note.)

Type of case: An employee is demoted to a lower grade

or position. (For example, the allegeddemotion may involve a change from one

pay system to another, as from the qen-

eral schedule (GS) to prevailing ratesystem. In such cases, the demotionmust result in a lower rate of pay when

representative rates are compared.)

Determination: The demotion (1, is an unjustified orunwarranted pers)nnel action and (2)

directly results in the withdrawal or

reduction of the employee's pay,

allowances, or differentials. (See"Interpretations," app. IX.)

Available remedies: Restore employee retroactively to posi-

tion held at time of demotion with back-

pay. (See "Back Pay Act," app. I.)or

Recommend a lesser disciplinary sanction

'such as letter of reprimand) and retro-

active restoration to position with

backpay. (See "Back Pay Act," app. I.)

Effective dateof remedies: The effective date of the unwarranted

oi unjustified demotion.

Note: Demotions are adverse actions, as de-

fined in 5 U.S.C. 7511(2) (1970), forwhich statutory appeal procedures are

available and are thus precluded fromthe coverage and scope of a negotiatedgrievance procedure under section 13(a)

of Executive Order 11491, as amended.Therefore, they are not subject to

arbitration.

Authority: Back Pav Act of 1966, 5 U.S.C. 5596(1970).

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References: Schweizer v. United States 128 Ct. Cl.456, 2T- TF. SuDp.. 7 (2rTi 4), andSalter v. United States, 188 Ct. C1.3'7i-T12 F.-772-'d74- 9).

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CHAPTER 3

PROMOTION

SITUATION 1Type of case: An eligible employee is denied a pro-

motion in violation of Civil ServiceCommission (CSC) requirements for pro-motion programs, the agency's negoti-ated procedure, or the agency's promo-tion plan as incorporated in the agree-ment or applicable law.

Determination: The grievant would have been promoted"but for" the agency's violation of itsnegotiated procedure or promotion plan,and thus the denial (1) is an unwar-ranted or unjustified personnel actionand (2) directly results in the with-drawal or reduction of the grievant'spay, allowances, or differentials.(See "Interpretations," app. IX.)

Available remedy: Promote grievant retroactively to posi-tion with backpay. Order the agency tovacate the position in dispute consis-tent with appropriate regulation. (See"Back Pay Act," app. I.)

Effective dateof remedy: The date the grievant would have been

promoted "but for" the unjustified orunwarranted personnel action.

Authority: Federal Personnel Manual, Ch. 335,Sec. 6-4, and Back Pay Act of 1966, 5U.S.C. 5596 (1970),

Reference: 54 Comp. Gen. 312 (1974).

SITUATION 2Type of case: Same as situation 1.

Determination: The agency's promotion decision was de-fective because it did not conform tothe negotiated agreement or the agencypromotion plan, as incorporated in theagreement; but it cannot be determined

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that the grievant would have been pro-moted "but for" the defectiveness ofthe process.

Available remedy: Direct that the promotion action bereconstituted so that the grievant maybe properly considered for the position;or alternatively, depending on the sit-uation, direct that the grievant begiven priority consideration for thenext promotion.

Effective dateof remedy: Prospective.

Authority: Federal Personnel Manual, Ch. 335,Sec. 6-4.

Reference: None

SITUATION 3Type of case: Same as situation 1.

Determination: The grievant did not receive properconsideration for the position in ques-tion; however, the selection processwas not so defective as to warrant anew process.

Available remedy: Direct the agency to correct systemicdefect or error that led to improperconsideration of the grievant.

Effective dateof remedy: Prospective.

Authority: Federal Personnel Manual, Ch. 335, Sec.6-4.

Reference: None

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CONSIDERATIONS INDIRECTING PROMOTIONS

Note 1: Subject to the requirements outlinedbelow, the Whitten Amendment (5 U.S.C.3101 Note) requires generally that aclassified employee of qrades GS-5 orabove serve 1 year in the next lowergrade before being eligible for eithera temporary or permanent promotion. Tothe extent this requirement has notbeen fulfilled, the grievant may not beretroactively promoted. The amendmentrequires as follows: (a) An agency mayadvance an employee to a position atGS-12 or above only after the employeehas served 1 year at the next lowergrade. (b) An agency may advance anemployee to a position GS-6 th oughGS-11 only after the employee .-asserved 1 year at the next lower grade,when the position to which the employ-ee is advanced is in a line of workclassified at one--grade intervals, orafter the employee has served in aposition two grades lower, when thepostition to which the employee isadvanced is in a line of work classi-fied at two-grade intervalr. (c) Anagency may advance an employee to aposition at GS-5 or below which is notmore than two grades above the lowestgrade held within the preceding yearunder a nontemporary appointment.Exception: To avoid undue hardship orinequity, an agency head may requestCSC to waive this requirement andauthorize promotions in individualcases of a meritorious nature. However,CSC has advised us that they rarely ap-prove such requests for waivers.

Note 2: Because salary is part of the positionappointment, it is not legally possibleto make a retroactive promotion withoutan award of backpay.

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Note 3: If an agency agrees to limit its rightto exercise discretion on a matter thatis discretionary within the agency,such as certain aspects of promotionpolicy, the agency is bound by the non-discretionary policy expressed in thenegotiated agreement, as long as thepolicy does not conflict with law,Executive order, or appropriateregulation.

Note 4: The Comptroller General has held inrecent decisions that a violation of amandatory provision in a negotiatedagreement which causes an employee tolose pay, allowances, or differentialsis as much an unjustified or unwarrantedpersonnel action as is an improper sus-pension, furlough without pay, etc.

Note 5: An unwarrranted or unjustified person-nel action may involve acts of omissionas well as commission. Therefore, thefailure to promote an employee or thefailure to provide overtime work tospecified employees in violation of aprovision in a negotiated agreement--an act of omission--is remediable underthe Back Pay Act.

Note 6: Occasionally organizational or otherchanges occur between the date of theunwarranted personnel action and thedate when corrective action may betaken, which influence the remedy thatcan be given. For example, a situationmay arise in which the agency abolishedthe position in question (perhaps dueto a reorganization of the agency) be-fore the arbitration award. To avoidhaving the awari ruled too indefiniteto permit implementation, the evidenceshould consider the grievant's entitle-ments "but for" the unjustified or un-warranted personnel action and whetherthe grievant would have been demotedfrom the position. If the evidenceindicates that the grievant would

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have been demoted, a terminationdate of the award setting a definitedate of demotion should be established.

Authority: Back Pay Act of 1966, 5 U.S.C. 5596(1970).

RefLrences: 53 Comp. Gen. 1054 (1974); 54 Comp. Gen.263 (1974); 54 Comp. Gen. 312 (1974);54 Comp. Gen. 403 (1974); 54 Comp. Gen.435 (1974); 54 Comp. Gen. 538 (1974);54 Comp. Gen. 888 (1975): B-181173,November 13, 1974; B-181238, November15, 1974; B-183061, July 2, 1975;B-183969, July 2, 1975; B-183985, July2, 1975; B-180010, November 4, 1975;and B-183125, November 14, 1975.

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CHAPTER 4

LEAVE

LOSS OF ANNUAL LEAVE DUE TOAN UNWARRANTED OR UNJUSTIFIEDPERSONNEL ACTION

Type of case: An employee (1) is forced to take an-nual leave or (2) loses leave under cir-cumstances not covered by 5 U.S.C.6304(d).

Determination: The involuntary enforcement, loss, ordenial of annual leave (1) is an un-warranted or unjustified personnel ac-tion and (2) directly results in thewithdrawal or reduction of the griev-ant's pay, allowances, or differen-tials (i.e., leave). (See "Interpre-tations," app. IX.)

Available remedy- Recredit annual leave to employee'sleave account.

Effective dateof remedy: The effective date of the unjustified

or unwarranted .ersonnel action.

Note 1: Annual leave should be recredited inaccordance with 5 U.S.C. 5596(B)(2)and CSC implementing regulations. Thespecial leave benefits contained in 5U.S.C. 6304(d) do not apply to backpaysituations which are covered by thebackpay statutory provisions. (See"Restoration of Annual Leave," app. IV.)

Note 2: The Comptroller General has consistentlyruled that the discretion of agencyheads under statute and law is suffi-ciently broad to enable them to deny em-ployees annual leave during one periodof time and instruct them to take an-nual leave at other specific times tosatisfy the needs of the Federal ser-vice. (References: 31 Comp. Gen. 581,

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586 (1952): 32 Comp. Gen. 204 (1952);and 40 Comp. Gen. 312, 314 (1960).

Note 3: If the agency, however, bargains awayits rights to exercise discretion on amatter that is normally discretionarywithin the agency, such as taking an-nual leave, the agency is bound by thenondiscretionary policy expressed inthe negotiated agreement as long asthe policy does not conflict with law,Executive orde:. or appropriate regu-lation.

Note 4: The Comptroller General has held inmore recent decisions that a violationof a mandatory provision in a negoti-ated agreement which causes an employeeto lse pay, allowances, or differen-tials, such as annual leave, is as muchan unjustified or unwarranted personnelaction as is an improper suspension,and thus is remediable through the BackPay Act.

Authority: Back Pay Act of 1966, 5 U.S.C. 5596(1970), and Federal Personnel ManualLetter 630-22, January 11, 1974.

Reference: 54 Comp. Gen. 503 (1974).

LOSS OF ANNUAL LEAVE NOT DUETO AN UNWARRANTED OR UNJUSTIFIEDPERSONNEL ACTION

Type of case: An employee who has planned in ad-vance to take annual leave whichwould be forfeited if not taken, sinceit is in excess of the maximum leavepermitted by law, is prevented fromtaking it through no fault of theembl. ,,ee.

Determination: The employee was prevented from takingleave because of (i) the exigencies ofpublic business, (2) sickness of the em-ployee, (3) administrative error, or (4)

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violation of established agency policyor the negotiated agreement. ("Restor-ation of Annual Leave," app. IV.)

Available remedy: Restore annual leave. Credit thatleave which is in excess of the maxi-mum leave accumulation permitted by lawto a separate leave account that willbe available to the employee within the2-year time limit prescribed by CSCregulations.

Effective dateof remedy: Effective upon restoration of the leave.

Note: Personnel actions determined unwar-ranted or unjustified because they vio-late established agency policy or agree-ment are not considered administrativeerrors under 5 U.S.C. 6304(d), whichauthorizes recrediting annual leavewhen determination (1), (2), or (3)above has been made. Therefore, whenit has been determined that an unjusti-fied or unwarranted personnel actionhas occurred , the affected employee'sleave must be recredited under auth-rity of the Back Pay Act, 5 U.S.C.;596, as amended (1975).

Authority: Public Law 93-181, 5 U.S.C. 6304(d)(supp. III, 1973), and Federal PersonnelManual Letter 630-22, January 11, 1974.

References! B-182229, November 7, 1974: B-184002,February 19, 1976, 55 Comp. Gen. 784.

DENIAL OF ANNUAL LEAVEFOR PERIOD OF ABSENCE

Type of case: An employee is denied annual leave andis placed in an absence without leave(AWOL) status for the period of absence.

Determination: The denial of annual leave (1) is an un-warranted or unjustified personnel ac-tion and (2) directly results in the

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withdrawal or reduction of the griev-ant's pay, allowances, or differen-tials. (See "Interpretdtions," app.IX.)

Available remedy: Require backpay for the entire periodwhile in AWOL status and correspond-ingly reduce the grievant's annualleave account.

Effective dateof remedy! The effective date of the AWOL action.

Note 1: If the grievant had been placed in asick leave status on the basis of com-petent medical evidence rather thanAWOL status in the above situation, theappropriate remedy would be a recred-itation of sick leave used with a cor-responding reduction in the annual leaveaccount. Backpay would not be anappropriate remedy since the employeesuffered no loss of pay.

Note 2: The Comptroller General has long heldthat the charqing of leave is primar-ily a discretionary matter for the ad-ministrative office of the agency con-cerned. However, an agency may bargainaway its discretion or promulgate amandatory regulation regarding the em-ployee's right to use leave. (Refer-ence: 39 Comp. Gen. 250, 251 (1959).)

Note 3: If the denial of annual leave and theenforcement of AWOL violates a nondis-cretionary requirement found in a law,regulation, Executive order, agencypersonnel policy manual, or negotiatedagreement, it may be determined to bean unwarranted or unjustified person-nel action and thus be remediablethrough the Back Pay Act.

Authority: Back Pay Act of 1966, 5 U.S.C. 5596(1970).

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Reference: B-180010.02, June 25, 1976, 55 Como.Gen

DENIAL OF SICK LEAVEFOR PERIOD OF ABSENCE

Type of case: An employee is denied sick leave and isplaced in a leave without pay (LWOP)status or an annual leave status forthe period of absence.

Determination: The denial of sick leave (1) is an un-warranted or unjustified personnel ac-tion and (2) directly results in thewithdrawal or reduction of the griev-ant's pay, allowances, or differen-tials. (See "Interpretations," aDp.IX.)

Available remedy: Require backpay for the entire periodwith a corresponding reduction in thegrievant's sick leave account if inLWOP status; or, if applicable, re-credit annual leave used with a cor-responding reduction in sick leave ac-count if iu; annual leave status.

Effective dateof remedy! The effective date of the LWOP action.

Note 1: The Comptroller General has lona heldthat the charging of leave and thegranting or rejecting of advanced sickleave is primarily a discretionary mas.-ter for the administrative office ofthe agency concerned. (References:39 Comp. Gen. 250, 251 (1959); B-164825,September 17, 1968; and B-182085, De-cember 24, 1974.)

Note 2: If the agency's denial %f sick leaveviolates a nondiscretionary requirementfound in a law, regulation. Executiveorder, appropriate personnel policymanual, or negotiated agreement, it maybe determined to be an unwarranted orunjustified personnel action and thus beremediable through tne Back Pay Act.

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Note 3: In cases where sick leave is denied inviolation of a negotiated agreement butthe agreement does not adopt the samedefinition of sick leave as CSC regula-tions, the CSC definition prevails.Since section 12(a) of Executive Order11491, as amended, provides that anynegotiated agreement is subject to theprovisions of existing or future lawsand regulations, sick leave is appro-priate only when circumstances specifi-cally and literally meet the criteriacontained in 5 C.F.R. 630.401.

Authority: Back Pay Act of 1966, 5 U.S.C 5596(1970).

References: B-181686, September 2, 1975, 55 Comp.Gen. 183; and B-171947.78, July 8, 1976,55 Comp. Gen_

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CHAPTER 5

OVERTIME COMPENSATION

DENIAL OF OPPORTUNITYTO WORK OVERTIME

Type of case: The opportunity for overtime work isnot afforded an employee in violationof the negotiated agreement.

Determination: The grievant would have been affordedovertime work "but for" the agency'sviolation of the negotiated agreement,and this denial (1) is an unwarrantedor unjustified personnel action and(2) directly results in the withdrawalor reduction of the grievant's pay,allowances, or differentials.("Interpretations," app. IX.)

Available remedy: Require retroactive payment of overtimepay for periods when a specific em-ployee would have performed overtimework "but for" the violation of thenegotiated agreement.

Effective dateof remedy: The effective date of the agency's

violation of the negotiated agree-ment.

Note 1: If an agency bargains away its rightto exercise discretion on a matter thatis normally discretionary within theagency, such as overtime policy, theagency is bound by the nondiscretion-ary policy expressed in the negotiatedagreement, as long as the policy doesnot conflict with law, Executive order,or appropriate regulation.

Note 2: The Comptroller General has held inrecent decisions that a violation ofa ma-ndatory provision in a negotiatedagreement which causes an employee tolose pay, allowances, or differentialsis as much an unjustified or

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unwarranted personnel action as is animproper suspension o0 furlough with-out pay.

Note 3: An unwarranted or unjustified personnelaction may invoive acts of omission aswell as commission. Therefore, an em-ployee deprived of overtime work inviolation of a negotiated agreement--anact of omission--may be awarded backpayunder the provisions of the Back Pay Actfor the overtime lost.

Note 4: Backpay is not appropriate if a specificemployee cannot be identified as havingsuffered a loss of pay as a result ofthe denial of opportunity to work over-time,

Note 5: The Comptroller General's "no work, nopay" rule is no longer in effect. (See"No Work, No Pay Rule," app. VI.)

Authority: Back Pay Act of 1966, 5 U.S.C. 5596(1970).

References: 54 Comp. Gen. 1071 (1975); B-180010,August 25, 1975, 55 Comp. Gen. 171;and B-180010, October 29, 1975, 55Comp. Gen. 405.

CHANGE IN BASIC WORKWEEK

Type of case: The basic workweek is unilaterallychanged by the agency to avoid thepayment of overtime compensation inviolation of established agency policyor the negotiated agreement.

Determination: The grievant would have performed over-time work "but for" the change in theworkweek (see note 1) and this change(1) is an unwarranted or unjustifiedpersonnel action and (2) directly re-sults in the withdrawal or reductionof the grievant's pay, allowances, ordifferentials. (See "Interpretations,"app. IX.)

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Available remedy: Require payment of backpay for periodswhen overtime work would have been per-formed "but for" the change in the work-week.

Effective dateof remedy: All periods of overtime that the employee

would have worked after the effectivedate of change in the basic workweek.

Note 1: There must be a direct causal relation-ship between the agency's change of theworkweek and a loss or reduction in thegrievant's pay.

Note 2: For general requirements regarding thebasic workweek of Federal employees,see 5 U.S.C. 6101 (app. V). Exception.Under 5 U.S.C. 6101(a) (3) the basicworkweek may be scheduled during a per-iod other than Monday through Fridayor changed without advance notice ifthe agency head determines (1) theagency's functions would be seriouslyhandicapped or (2) its costs would besubstantially increased by followingthe usual workweek sequence. To theextent that this exception is appli-cable, backpay for overtime compensa-tion is not available.

Note 3: In fashioning a remedy, 5 U.S.C. 6302(a) prohibits a grievant from beingplaced in an annual leave status for aperiod du-ing which the grievant wasnot scheduled to work so as to entitlethe grievant to overtime compensationfor that day.

Note 4: Backpay is not appropriate if a speci-fic employee cannot be identified ashaving suffered a loss of pay as aresult of the workweek change.

Note 5: An agency's failure to consult with theunion, as provided in the negotiatedagreement, before initiating a change

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in the workweek does not, in itself,result in the necessary "but for"relationship between the wrongful actand the harm to the grievant. (See"Failure-to-Consult," app. VII.)

Note 6: The Comptroller General's "no work, nopay" rule is no longer in effect.(See "No Work, No Pay Rule," app. VI.)

Authority: Back Pay Act of 1966, 5 U.S.C. 5596(1970), and 5 U.S.C. 6101 (1970).

References: 54 Comp. Gen. 1071 (1975); B-180010,August 25, 1975, 55 Comp. Gen. 171;B-180010, January 6, 1976, 55 Comp. Gen.629; and B-171947.78 July 9, 1976,55 Comp. Gen.

WORK ACTUALL PERFORMED

Type of case: An employee is denied overtime com-pensation for work actually performedin excess of the employee's regularworkweek or outside the regular dutyhours.

Determination: The appropriately authorized officialhas authorized, approved, or inducedthe performance of overtime work and,thus, the denial of overtime compen-sation (1) is an unjustified or unwar-ranted personnel action and (2) di-rectly results in the withdrawal or re-duction of the employee's pay, allow-ances, or differentials. (See "Inter-pretations," app. IX.)

Available remedy: Require payment of backpay for periodswhen overtime work was actually per-formed if consistent with notes 1 and 5below.

Effective dateof remedy: The periods when overtime work was

actually done.

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Note 1: Under 5 U.S.C. 5542(2), hours of workofficially ordered or approved in ex-cess of 40 hours in an administrativeworkweek or in excess of 8 hours in aday and performed by an employee areovertime work and shall be compensable.The implementing regulations are foundin 5 C.F.R. 550.111.

Note 2: Payment of overtime compensation iscontingent on whether the overtime workwas authorized, approved, or induced byan official having delegated authority.

Note 3: The Comptroller General, relying onBaylor v. United States, i98 Ct. C1.331 (1972), held that inducement ofovertime work may be found if the ap-propriately authorized official knew

of or should have known of procedureswhich would require the grievant towork overtime.

Note 4: If an appropriately authorized officialdid not authorize, approve, or induceovertime work, it is not compensableexcept under the Fair Labor StandardsAct (FLSA). (See nnte 5.)

Note 5: Under FLSA an employee covered by theact shall receive compensation if suf-fered or permitted to work. The em-ployee need not have been authorized,approved, or induced to work, only thatthe supervisor had reason to believethe work was being done. The CSC holdsthat the FLSA complaint procedure is astatutory appeals procedure and thatcomplaints over the act must be adjudi-cated under Federal Personnel ManualLetter 551-9.

Authority: Back Pay Act of 1966, 5 U.S.C. 5596(1970); 5 [U.S.C. 5542; and 5 C.F.R.550.111.

Refererces: B-180139, October 8, 1974, and B-175363,November 26, 1974.

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WORK PERFORMED WHILEIN TRAVEL STATUS

Type of cases Overtime compensation is denied anemployee for work performed while ina travel status incident to performingtemporary duty.

Determination: The agency had officially ordered orapproved the overtime work beforetravel and/or the overtime work waswork which could only be performedwhile traveling. Thus, the denial (1)is an unwarranted or unjustified per-sonnel action and (2) directly resultsin the withdrawal or reduction of thegrievant's pay, allowances, or differ-entials. (See "Interpretations,"app. IX.)

Available remedy: Require payment of backpay for periodwhen overtime work was actually per-formed while in a travel status.

Effective dateof remedy: The beginning of the period when the

employee was in a travel status.

Note 1: According to the provisions of 5 U.S.C.5542(b)(2)(B)(i) (1970), if the re-cord fails to show that the agency of-ficially ordered or approved the over-time work or that the work was workwhich could only be performed whiletraveling, no basis exists for consid-ering the travel as having includedthe performance of work. Under title5, for such time spent traveling to becounted as hours of work, the travelmust either (1) involve the perfor-mance of work while traveling, (2) beincident to travel that involved theperformance of work while traveling,(3) be carried out under arduous con-ditions, or (4) result from an eventwhich could not be scheduled or con-trolled administratively.

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Note 2: FLSA provides different criteria fordetermining whether travel time shouldbe considered hours of work for thoseemployees covered by the act. Author-ized travel time outside regular work-ing hours is "hours of work" and com-pensable under FLSA if an employee (1)performs work while traveling (includingtravel as a driver of a vehicle), (2)travels as a passenger to a temporaryduty station and returns during thesame day, or (3) travels as a passen-ger on nonwork days during hours whichcorrespond to one's regular workinghours. CSC holds that the FLSA com-plaint procedure is a statutory ap-peals procedure and that complaintsunder the act must be adjudicatedunder Federal Personnel Manual Letter551-9.

Authority: Back Pay Act of 1966, 5 U.S.C. 5596(1970); 5 U.S.C. 5542(b)(2)(B)(i)(1970); Federal Personnel Manual,Supp. 990-2, Book 550, Sl-3b(2)(c)(iv) (July 1969); and Federal PersonnelManual Letter 551-10.

References: B-181843, November 19, 1974; B-146288,January 3, 1975; and B-179186, April13, 1976.

TRAVEL PERFORMED ON WEEKEND

Type of case: Overtime compensation is denied to anemployee for travel incurred on aweekend incident to performing temporaryduty on a weekday away from the em-ployee's official duty station.

Determination: The travel resulted from an eventwhich could not be scheduled orcontrolled administratively and thusthe denial (1) is an unwarranted orunjustified personnel action and (2)directly results in the withdrawalor reduction of the grievant's pay,

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allowances, or differentials. (See"Interpretations," app. IX.)

Available remedy: Require backpay for overtime compen-sation during period when travelingon the weekend.

Effective dateof remedy: The beginning of the period when

weekend travel was performed.

Note 1: The phrase "could not be scheduled orcontrolled administratively" refersto the ability of an executive agency(as defined in 5 U.S.C. 105) and theDistrict of Columbia government tocontrol the event which necessitatesan employee's travel. The control isassumed to be the agency's, whetherthe agency has sole control or thecontrol is achieved through a groupof agencies acting in concert.

Note 2: Weekend travel will be considered"hours of work" and thus entitled toovertiim compensation when it resultsfrom unforeseen circumstances (e.g.,a breakdown of equipment) or from anevent which is scheduled or controlledby someone or some organizationoutside of Government.

Note 3: FLSA provides different criteria fordetermining whether travel time shouldbe considered hours of work for thoseemployees covered by the act. Author-ized travel time outside regular work-ing hours is "hours of work" andcompensable under FLSA if an employee(1) does work while traveling (includ-ing travel as a driver of a vehicle),(2) travels as a passenger to atemporary duty station and returnsduring the same day, or (3) travelsas a passenger on nonworkdays duringhours which correspond to one'sregular working hours. CSC holds thatthe FLSA complaint procedure is a

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statutory appeals procedure and thatcomplaints under the act must beadjudicated under Federal PersonnelManual Letter 551-9.

Authority: Back Pay Act of 1966, 5 U.S.C. 5596(1970); 5 U.S.C. 5542(b)(2)(B)(iv)(1970); Federal Personnel Manual,SupD. 990-2, Book 550, S1-3b(c)(iv)(July 1969): and Federal PersonnelManual Letter 551-10.

References: B-163654, April 19, 1968: F-179430,November 25, 1974; and B-1l6288,January 3, 1975.

COMPENSATORY TIME VERSUS_C- IONAL OVERTIME COMPENSATION

Type of case: An employee who performs occasionalor irregular overtime work is givencompensatory time off in lieu ofovertime compensation which theemployee requested.

Determination: The employee's basic rate of pay isless than or equal to the maximumGS-10 rate and is exempt from the over-time provisions of the FSLA Amendmentsof 1974. Thus, the denial of overtilmecompensation (1) is an unwarranted orunjustified personnel action and (2)directly results in the withdrawal orreduction of the employee's pay, allow-ances, or differentials. (See"Interpretations," app. IX.)

Available remedy: Payment of backpay for the periodwhen overtime work was performed.Backpay is equal to the differencebetween the overtime compensationthat should have been received and thevalue of the compensatory time actuallyused. In such cases, compensatory timeis given on a "l-for-l" basis. That is,an employee receives 1 hour of compen-satory time for every hour of workdone during an overtime period.

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Effective dateof remedy: The period when overtime work was done.

Note 1: Under 5 U.S.C. 5543(a)(2) the agencyis authorized to grant compensatorytime off in lieu of overtime compen-sation for occasional or irregularovertime work if the employee's basicrate of pay exceeds the maximum GS-10rate. The implementing regulationsare found in 5 C.F.R. 550.114. How-ever, if the employee's basic rate ofpay exceeds the minimum rate ofGS-10, the hourly overtime rate isequal to 1-1/2 times the hourly rateat the minimum rate of GS-10.

Note 2: The Comptroller General has held thatirregular overtime work is work thatdoes not recur on successive days orafter specified intervals and the word"occasional" is to be given itscommon dictionary definition, namely"occurring now and then; occurring atirregular intervals; infrequent."

No+e 3: Under 5 C.F.R. 550.114(c) the agencyis authorized to fix a time limitfor taking compensatory time off. Theemployee loses the right to thisbenefit after the expiration limitunless the failure is due to an ex-igency of the service beyond the em-ployee's control.

Note 4: Compensatory time off for overtime workis not appropriate for employees sub-ject to the provisions of the FLSAAmendments of 1974 if the employeeovertime entitlement is greater underFLSA than under title 5. FLSA requiresthat the employee be paid for the over-time work. CSC holds that the FLSAcomplaint procedure is a statutoryappeals procedure and that complaintsunder the act must be adjudicatedunder Federal Personnel Manual Letter551-9. To the extent that a nonexempt

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employee earns entitlement to overtimecompensation under FLSA, the provisionsof FLSa will be applicable rather than5 U.S.C. 5542 and 5543.

Authority: Back Pav Act of 1966, 5 U.S.C. 5596(1970;; 5 U.S.C. 5542; and 5 U.S.C.5543.

References: B-181211, November 6, 1974, andB-181822, January 3, 1975.

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CHAPTER 6

RESIGNATION OR VOLUNTARY REDUCTION IN RANK

Type of case: An employee voluntarily requests areduction in rank to avoid a moreserious personnel action (e.g., re-duction in force), or voluntarilyresigns due to adverse conditionswithin the agency.

Determination: The employee's action was voluntaryin nature and was not the result ofthreats, coercion, or intolerableworking conditions. This determinationmust he made by an appropriate authoritypursuant to the employee's appeal froman adverse action.

Available remedy: None.

Effective dateof remedy: None.

Note 1: If the employee's action was voluntary,there was no unwarranted or unjustifiedpersonnel action within the meaning ofthe Back Pay Act, 5 U.S.C. 5596 (1970)and, therefore, the employee is notentitled to backpay.

Note 2: The Comptroller General has held thatin certain cases an employee whovoluntarily resigns may be consideredconstructively discharged if the agencycircumvented statutory procedures bysubjecting the employee to threats,coercion, or intolerable workingconditions. In such cases, the em-ployee would be alleging that an ad-verse action had been taken againsthim/her without benefit of properprocedures. The determination wouldhave to be made by an appropriateauthority, such as the FederalEmployee Appeals Authority, underapplicable statutory appeals proce-dures.

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Authority: Back Pay Act of 1966, U.S.C. 5596(1970).

Reference: B-181614, February 5, 1975.

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CHAPTER 7

EQUAL EMPLOYMENT OPPORTUNITY VIOLATIONS

Type of case: An employee or an applicant foremployment is denied an employmentbenefit or an adverse administrativedecision is made against the employee.

Determination: The agency action was based on discrim-inat on in violation of the Eaual Em-ployment Opportunity Act or March 24,3972, Public Law 92-261, codified at42 U.S.C. 2000e-16(a) (supp. TV, 1974).

Available remedies: Statutory appeal procedures are avail-able, as provided in 5 C.F.R. 713, toremedy discriminatory actions againstFederal employees and applicants foremployment.

Promotions

1. Require retroactive appointment ofthe applicant or retroactive pro-motion with backpay computed inthe same manner as 5 C.F.R.550.804 when the record clearlyshows "but for" the discrimination,the ,employee would have beenpronloted or the applicant hired.

Note: The period of retroactivityfor which backpay is permittedmay not be more than 2 yearsbefore the date the equalemployment opportunity com-plaint was filed and may notexceed the date the grievantwould have been promoted orappointed.

2. Reauire consideration for appoint-ment or promotion to a positionfor which the grievant is qualifiedbefore considering other candidateswhen the record shows that

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discrimination existed at the timeselection for the appointment orpromotion was made, but it is notclear that exceDt for the discrim-ination, the grievant would havebeen appointed or promoted.

Note: This priority considerationtakes precedence over prior-ities under other regula-tions of 5 C.F.R. 713.

Adverse administrative decisions

Require the cancellation of the adversedecision with the employee's restora-tion, if applicable, and, if thedecision involves an unwarranted dis-ciplinary action that is not a person-nel action, such as a reprimand, ex-punction from the agency's records ofany reference to the action.

Denial of employee benefit

Require full opportunity to participatein the benefit denied grievant.

Note 1: Although backpay under the Equal Employ-ment Opportunity Act is computed in thesame manner as backpay under the BackPay Act of 1966, the period of retro-activity differs. Backpay may not ex-tend back more than 2 years under theEqual Employment Opportunity Act, whilethere is a 6-year limitation on back-pay for unjustified or unwarrantedpersonnel actions under the Back PayAct.

Authority: Equal Employment Opportunity Act of1972, 42 U.S.C. 2000e-16(a)(supp.IV, 1974).

References: Johnson v. U.S. Postal Service, 364 F.Supp. 37 (D.C. Fla. 1973) affirmed497 F.2d 128; Sperling v. U.S.,

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515 F.2d 465, (3rd Ci. 1975); andLevens v. General Services Adminis-tration, 391 F. Supp. 35 (D.C. Mo.

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CHAPTER 8

WORK ASSIGNMENT

JOB APPOINTMENT

Type of case: An employee is initially appointed to alower grade than the grade required bynondiscretionary agency policy.

Determination. The appointment to the lower grade (1)is an unjustified or unwarrantedpersonnel action and (2) directly re-sults in the withdrawal or reductionof the employee's pay, allowances, ordifferentials. (See "Interpretations,"app. IX.)

Available remedy: Retroactive change in appointment to-gether with backpay. (See "Back PayAct," app. I.)

Effective dateof remedy: The effective date of the initial ap-

pointment to the incorrect grade.

Authority: Back Pay Act of 1966, 5 U.S.C.5596 (1970).

Reference: B-181223, July 29, 1974.

WORK FUNCTION

Type of case: There is a variance between an em-ployee's appointed position and theduties actually performed.

Determination: The employee is doing work of a highergrade level than the position to whichappointed. This is a classificationdetermination that must be made underthe appropriate classification appealprocedure.

Available remedies: The agency may, on its own volition,assign the employee loweL level workcommensurate with grade level. Theemployee may seek reclassification

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through the statutory appeals procedureprovided by 5 C.F.R. 511 or 5 C.F.R.532, as applicable.

Effective dateof remedies: The date the appropriate authority

directs; it is prospective only(5 C.F.R. 511.701 et seq.).

Note 1: The longstanding rule, established inboth Comptroller General and judicialdecisions, is that an employee is en-titled only to the appointed positionsalary regardless of the dutiesactually performed. The employee isnot entitled to the salary of a higherlevel position unless and until theposition is reclassified to the highergrade by either the agency or CSC andthe employee is promoted to it.(Reference: B-180056, May 28, 1974,and U.S. v. Testan, 424 U.S. 392(197 6).

Note 2: Position Classification (grade seriesand title) is a matter of adminis-trative discretion which rests solelywith the agency involved and CSC.

Authority: 5 C.F.R. Part 511

References: B-183218, March 31, 1975, and B-182695,September 15, 1975.

TEMPORARY EXTENDED DETAILTO HIGHER GRADE

Type of case: An employee is detailed to a highergrade position in excess of 120 daysand, contrary to CSC regulations,neither is the employee given a temp-orary.promotion nor is the extensionof the detail for an additional 120days submitted to CSC for approval.

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Determination: The failure of the agency either toseek prior approval of the extension orto grant a temporary promotion (1) isan unjustified or unwarranted personnelaction and (2) directly results in thewithdrawal o: reduction of the employ-ee's pay, allowances, or differentials.(See "Interpretations," app. IX.)

Available remedy: Require retroactive temporary promotionwith backpay. (See "Back Pay Act,"app. I.)

Effective dateof remedy: 121 days after the effective date of

the employee's detail to the highergrade.

Note 1: According to the Federal PersonnelManual, Ch. 300, Subch. 8, Sec. 8-4f,an aqency must seek prior CSC approvalwhen a detail to a higher grade isexpected to exceed 120 days.

Note 2: The Appeals Review Board, CSC, formerlythe Board of Appeals and Review, withthe concurrence of the ComptrollerGeneral, has interpreted Chapter 300of the Federal Personnel Manual tomean that an agency's discretionaryauthority to retain an employee ondetail to a hiqher grade positioncontinues no longer than 120 days.The agency must either seek priorapproval from CSC for an extension ortemporarily promote the employee atthe end of the time period. If theagency fails to seek prior approvalfrom CSC for the extension, theagency has a mandatory duty to awardthe employee a temporary promotionif the employee continues to performat the higher grade.

Note 3: The Whitten Amendment requires that aclassified employee of GS-5 or aboveserve 1 year in the next lower gradebefore being eligible for either a

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temporary or permanent promotion. Tothe extent this requirement has notbeen fulfilled, a grievant may not beretroactively promoted.

Authority: Back Pay Act of 1966, 5 U.S.C. 5596(1970), and Federal Personnel Manual,Ch. 300, Subch. 8.

References: 54 Comp. Gen. 263 (1974); B-181173,November 13, 1974; B-183086, December5, 1975, 55 Comp. Gen. 539; andB-184990, February 20, 1976, 55 Comp.Gen. 785.

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CHAPTER 9

PAY

RATE OF PAY

Type of case: An employee's rate of pay is set ata lower grade or step than required byapplicable regulations or nondiscre-tionary agency policy, such as theagency violating its policy regardingthe highest previous rate rule.

Determination: The incorrect rate (1) is an unjusti-fied or unwarranted personnel actionand (2) directly results in the with-drawal or reduction of the employee'spay, allowances, or differentials.(See "Interpretations," app. IX.)

Available remedy: Adjust pay rate retroactively to theappropriate rate required by regula-tions or agency policy with backpay.(See "Back Pay Act," app. I.)

Effective dateof remedy: The date the incorrect pay rate

became effective.

Authority: Back Pay Act of 1966, 5 U.S.C. 5596(1970).

References; 51 Comp. Gen. 656 (1972); B-181223,July 29, 1974; and B-180997, October30, 1974.

ENVIRONMENTAL PAY

Type of case: An environmental pay differential isdenied (1) to a wage system (WG) em-ployee who is exposed to unusuallysevere hazards, physical hardships, orworking conditions, as provided in theFederal Personnel Manual Supplement532-1, Appendix J, or (2) to a GS em-ployee who performs irregular or inter-mittent duty involving unusual physical

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hardship or hazard as provided in theFederal Personnel Manual Supp. 990-2,Appendix A.

Determination: The employee is actually exposed to ahazardous condition or a physicalhardship which agency action has notovercome. Its payment is authorizedunder the Federal Personnel ManualSupplement 532-1 or 990-2, as appli-cable; and the denial of the environ-mental pay differential (1) is an un-justified or unwarranted personnelaction and (2) directly results in thewithdrawal or reduction of the employ-ee's pay, allowances, or differentials.(See "Interpretations," app. IX.)

Available remedy: Require backpay of environmental paydifferential for the entire period theemployee worked under hazardous orenvironmental conditions. (See "BackPay Act," app. I.)

Effective dateof remedy: The dates that the employee was exposed

to the hazardous or environmental con-ditions.

Note 1: Environmental pay is not limited tohazardous working conditions, but alsoincludes unusually severe physicalhardships and working conditions, suchas dirty work, cold work, and hot work.

Note 2: Hazard pay differential may be paid toa GS employee only for irregular orintermittent duty specified in AppendixA of the Federal Personnel ManualSupplement 990-2 when that duty is notusually involved in carrying out theduties of the position. The differen-tial may not be paid to a GS employeewhen the hazardous duty has been takeninto account in classifying theposition.

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Note 3: GS employees are paid the applicablepercentage based on their actualsalary: WG employees are paid based onthe second step of a WG-10.

Authority: Back Pay Act of 1966, 5 U.S.C. 5596(1970): 5 U.S.C. 5343 (c)(4)(1970):Federal Personnel Manual Supp. 532-1,Subch. S8-7 and App. J; 5 U.S.C.5545(d); and Federal Personnel ManualSupp. 990-2, Book 55C, Subch. S9,ADp. A.

References: 53 Comp. Gen. 789 (1974); B-180109,January 2, 1976; and B-180010.03,October 7, 1976, 56 Comp. Gen.

PERIODIC STEP INCREASE(See note.)

Type of case: An employee is improperly denied aperiodic step increase, or the in-crease is delayed.

Determination: The improper delay or denial (1) is anunjustified or unwarranted personnelaction and (2) directly results in thewithdrawal or reduction of the employ-ee's pay, allowances, or differentials.(See "Interpretations," app. IX.)

Available remedy: Require retroactive step increase withbackpay. (See "Back Pay Act," app. I.)

Effective dateof remedy: The date the step increase would have

been effective if the unwarranted orunjustified action had not occurred.

Note: This type of case is subject to astatutory appeals procedure pursuantto 5 C.F.R. 531.407 and is thus pre-cluded from the coverage and scope ofa negotiated -rievance procedure undersection 13(a) of Executive Order 11491,as amended.

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Authority: Back Pay Act of 1966, 5 U.S.C. 5596(1970).

References: 37 Comp. Gen. 300 (1957); 37 Comp. Gen.774 (1958); and B-173976(10), July 11,1972.

DUES WITHHOLDING

Type of case: An agency improperly deducts uniondues from an employee who has left thebargaining unit contrary to 5 C.F.R.550.322(c).

Determination: The deduction (1) is an unwarranted crunjustified personnel action and (2)directly results in the withdrawal or

reduction of the employee's pay, allow-

ances, or differentials. (See "Inter-pretations," app. IX.)

Available remedy: Require backpay in the amount of duesimproperly deducted after the employeeleft the bargaining unit.

Effective dateof remedy: The effective date the employee left

the bargaining unit.

Note 1: If the improper deduction of dues hasresulted in an overpayment of dues

checkoff to the union, the Governmentis entitled to recoup from the unionan amount equal to the overpayment by

reducing a current payment of the duescheckoff by the specified amount. Thisis based on the principle that paymentof Federal funds is limited solelyfor the purpose of appropriations.(Reference: 54 Comp. Gen. 921 (1975).)(This case is currently before theCourt of Claims for enforcement of anarbitration award.)

Note 2: It is also a basic principle of lawand commerce that a payee is notentitled to be paid by a payor moremoney than is due. Thus, at an

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earlier time if a payee is paid more onan obligation than is due, the payormay rightfully adjust subsequent pay-ments to compensate for such over-payments, so that the payee may not beunjustly enriched.

Authority: Back Pay Act of 1966, 5 U.S.C. 5596(1970), and 31 U.S.C. 628 (1970).

References: B-180095, October 1, 1974, and 54Comp. Gen. 921 (1975).

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CHAPTER 10

MISCELLANEOUS CASES

JURY DUTY

Under 5 U.S.C. 6322(a), the lonqstanding policy of the

Congress permits Government employees to perform jury duty

without loss of compensation or leave. Accordingly, theComptroller General has held that:

1. An employee is entitled to compensation for requ-

larly scheduled working hours, although not sched-uled for actual jury duty, when it would impose ahardship to return to regular work at the time the

employee is excused from jury duty. (26 Comp. Gen.413 (1946).)

2. An employee may be excused from regularly schedulednight duties without charge to annual leave and withcompensation at the night differential rate whenperforming jury duty during the cay. (29 Comp. Gen.427 (1950).)

3. An employee may be excused from regularly scheduledweekend duty without charge to annual leave and withcompensation at the weekend differential rate(premium pay) otherwise payable when performing juryduty from Monday through Friday. (54 Comp. Gen.147 (1974).)

4. Computation of jury service fee payable to FederalGovernment employees whose period of jury servicein Federal courts overlaps in part their normalworkday shall be based on a jury service fee of $20prorated over a standard 8-hour workday, that is,$2.50 for each hour of jury service beyond the hoursemployees worked or would have worked "but for" juryservice.

In computing excess hours of jury service in Federalcourt over number of employee's working hours in aday, fractional hours shall be rounded off, a halfhour or more eaualing 1 hour. When the end of anemployee's scheduled workday coincides with thebeginning of Federal jury service, it is not neces-sary to prorate the jury fee. Any travel time

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between duty stations and the court is to beconsidered as court leave. (B-70371, July 13, 1976,55 Comp. Gen. .)

5. The principle of Jrmitting pro-rata payment of juryfees to employees for jury service in Federal courtsextending beyond scheduled workday is equallyapplicable to jury duty performed in State courts.Employees may be permitted to retain a pro-rataportion of the fee for jury service in State ormunicipal courts extending beyond their scheduledworkday. Contrary prior decisions are no longercontrolling. (B-119969, July 13, 1976, 55 Comp.Gen.

Note: Jury fees covering weekdays which the employee doesnot usually work should be credited against theemployee's pay for the substituted days of courtleave on weekends.

STANDBY DUTY

Under 5 U.S.C. 5545(c)(1) an employee is required toreceive premium pay for standby duty when regularly requiredto re:ain at or withir the confines of his duty stationduring longer than ordinary periods of duty to perform stand-by duty.

According to 5 C.F.R. 550.143(b), the phrase "at orwithin the confines of his station" means:

1. At an employee's regular duty station.

2. In quarters provided by an agency which are not theemployee's ordinary living quarters and are specif-ically used for standby duty.

3. In an emDloyee's living quarters, when designated bythe agency as the duty station and when the employ-ee's whereabouts are narrowly limited and activitiesare substantially restricted.

The Comptroller General has consistently held -hat em-ployees who are required to perform standby duty and either(1) are not restricted to their residences or (2) are re-stricted to their residences but are free to perform what-ever activities they desire are not entitled to premium pay,overtime compensation, etc., by virtue of being on call.

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Such duty does not constitute "hours of work," nor does itsatisfy the requirement of 5 C.F.R. 550.143(b)(3).

References: B-173783.116, April 1, 1975, and B-176924,September 20, 1976.

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APPENDIX I APPENDIX I

PROVISIONS OF BACK PAY ACT

OF 1966, 5 U.S.C. 5596 (1970)

1. Coverage--5 C.F.R. 550.802(a)

Applies to employees and former employees of:

-- An executive agency (other than the Tennessee ValleyAuthority) as defined in 5 U.S.C. 105 (i.e., executivedepartments, independent agencies, GAO).

-- The Library of Congress.

-- The Government Printing Office.

-- The District of Columbia government.

-- The Administrative Office of the United States Courts.

2. General requirement

An employee or former employee is entitled to backpaywhen it is administratively determined by an appropriateauthority (see "Interpretations," app. IX) that the grievablematter

-- is a result of an unwarranted or unjustified personnelaction and

-- directly results in the withdrawal or reduction ofthe employee's pay, allowances, or differentials.

3. Specific requirement--"but for" relationship

A direct causal relationship must be established betweenthe unjustified or unwarranted personnel action and the lossof pay, allowances, or differentials. Remedies under theBack Pay Act are not available unless it is established that"but for" the wrongful action, the withdrawal of pay, allow-ances, or differentials would not have occurred.

4. Entitlement

An employee who meets the requirements of the Back PayAct:

I-1

APPENDIX I APPENDIX I

-- Is entitled to receive, for the period the wrongfulaction was in effect, an amount equal to all or partof the employee's pay, allowances, or differentialsand leave recreditation, as applicable, that normallywould have been earned if the wrongful action had notoccurred.

-- Is deemed to have performed service for the agencyduring that period.

5. Inclusions in backpay computation

In recomputing backpay for the period covered by thecorrective action, the following should be included:

--Preimium pay.

-- Changes in pay rates by reason of wage surveys, admin-istrative action, law, or other changes of generalapplication.

-- Changes in allowance or differential rates.

-- Within-grade or step increases which would otherwisehave become due.

-- Changes in pay caused by changes in assigned workingshifts.

-- Changes .n employee's leave-earning rate.

--Any other changes which would affect the amount ofpay, allowances, differentials, or leave which theemployee would have earned had it not been for theaction.

6. Exclusions a'ld deduction in backpay computation

a. The period included in the recomputation may notextend beyond the date

-- of the employee's death or

-- on which the employee was properly separated fromthe agency's rolls if the separation would havebeen effected regardless of the wrongful act.

I-2

APPENDIX I APPENDIX I

b. The recomputation may not include any period duringwhich the employee:

-- Was not ready and able to perform the job becauseof incapacitating illness, except that the em-ployee may request any sick or annual leave tohis/her credit to cover the period of incapacity.

-- Was unavailable to perform the job, and this un-availability was not related to or caused by thewrongful action.

c. Any amounts the employee earned from other employ-ment during the period covered by the correctedaction (i.e., earned as a substitute for the em-ployment which was incorrectly terminated or sus-pended) must be deducted. However, if the employeeheld a part-time job during the period covered bythe corrected action that he/she would havet held hadthe wrongful action not occurred, the employee isentitled to the full amount of opy for the period.(See "Interpretations," app. IX.

d. Any amounts which represent r-imbursement for ex-penses which the employee would have incurred inperformance of the job, but which were not incurreddue to the unjustified or unwarranted action, maynot be included as allo% nces.

7. Special considerations in ba-.kpay computation

a. Annual leave lost due to an unwarranted or unjusti-fied personnel action may not be recredited to anemployee's regular leave account in an amount thatwould cause the employee's leave balance to exceedthe maximum amount authorized by law or regulation.Excess leave should be recredited to a specialaccount pursuant to 5 U.S.C. 5596(b)(2).

Ncte: The provisions of Public Law 93-181 (codifiedat 5 U.S.C. 6304(d)) regarding annual leaverecreditation do not apply to backpay reme-dies which are included under 5 U.S.C. 5596(b) 2) (supp. V, 1975). (See "Restorationof Annual Leave," app. IV.)

b. If the employee is restored within 1 year after theerroneous separation, no period of time may bedeleted from the backpay computation on the basis

I-3

APPENDIX I APPENDIX I

that the employee was under obligation to make an

effort to secure employment during the period

covered by the separation. However, under certain

circumstances when the employee is separated for

more than 1 year before restoration, the agency

has authority to reduce the amount of the employee'sbackpay because the employee failed to satisfy the

obligation to make an effort to secure employment

during the separation (5 C.F.R. 550.804(F)).

I-4

APPENDIX II APPENDIX II

REMEDIES NOT AVAILABLE UNDER BACK PAY ACT

OF 1966, 5 U.S.C. 5596 (1970)

1. Interest on backpay

The payment of interest on backpay is not provided forunder 5 U.S.C. 5596 (1970).

General rule: In the absence of a statute authorizing thepayment of interest, interest does notaccrue upon claims against the Government.

References: Seaboard Air Line Railway v. United States,261 U.S. 299, 3U4 (1923): Smyth v. UnitedStates, 302 U.S. 329, 353 (1937); 45 Comp.Gen. 169 (1965); and B-180021, March 20, 1975.

2. payment of consequential damages

Recompensation is authorized under 5 U.S.C. 5596 (1970)for only a limited class of actual damages resulting directlyfrom the unjustified or unwarranted personnel action in theform of pay, allowances, or differentials.

Examples of consequential damages which are not recom-pensable include

-- loss of equity in car or house through repossessionor foreclosure actions,

-- lost promotion or training opportunities, and

-- loss of professional reputation or standing.

3. Payment of punitive damages

4. Recompensation for discrimination in hiring on non-equal-employment-opportunitygrounds

The Back Pay Act of 1966, 5 U.S.C. 5596 (1970), providesa statutory remedy only for Federal employees who have beenwrongfully deprived of pay, allowances, or differentials. Itdoes not cover applicants for employment. However, see 5C.F.R. 713.

5. Reimbursement to restored employee for commercial healthinsurance

11-1

APPENDIX II APPENDIX II

Authority is provided under 5 U.S.C. 8908 (1970) torestore health insurance benefits to employees reinstatedunder the Back Pay Act. (See app. X.) However, neither 5U.S.C. 8908 (1970) nor 5 U.S.C. 5596 (1970) authorizes reim-bursement to restored employees for commercial health insur-ance purchased during periods when unjustified or unwarrantedremovals or suspensions were in effect.

6. Attorney fees and other litigation expenses

The payment of attorney fees or other litigation expen-ses is not provided for under 5 U.S.C. 5596 (1970).

General rule: In the absence of a statute expressing acontrary intention, attorney fees and litiga-tion expenses incurred by a plaintiff, orwhich a plaintiff is obligated to pcv, arenot recoverable as an item of damages in acontract or a tort action. But see Fitjeraldv. U.S. Civil Service Commission, 407 F. Supp.380 (1975), allowing attorney fees under5 U.S.C. 7701.

References: Stewart v. Sonneborn, 98 U.S. 187 (1878);Hauenstein v. Lynham, 100 U.S. 483 (1880)7Piggly Wiggly v. United States, 112 Ct. C1.391, 432 (1949); Edelman v. United States, 117Ct. C1. 400, 413 (1950); and 49 Comp. Gen. 44(1969).

II-2

APPENDIX III APPENDIX III

OTHER AVAILABLE REMEDIES

1. Health insurance--5 U.S.C. 8908 (1970)

Authority is provided under 5 U.S.C. 8908 (1970) torestore health insurance benefits to employees reinstated un-der the Back Pay Act who were improperly removed or suspendedfrom Government employment as a result of unjustified or un-warranted personnel actions. An employee has the optioneither to

--have the prior enrollment reinstated retroactive tothe date it was terminated with appropriate adjust-ments made in contributions and claims or

--enroll in the plan and option of choice, the same asa new employee.

Civil Service Commission regulations implementing 5 U.S.C.8908 (1970) are contained in paragraph S8-5, FederalPersonnel Manual Supplement 890-1, Instruction 34, Septenr;br24, 1973.

Note: An employee restored to duty after an erroneousremoval or suspension should be notified of theoptions in health benefits coverage.

Reference: See text, appendix X.

2. Government life insurance--5 U.S.C. 8706(f) (supD. III,1973) )

Authority is provided under 5 U.S.C. 8706(f) to restorelife insurance benefits to employees reinstated under theBack Pay Act who were improperly removed or suspended fromGovernment employment as a result of unjustified or unwar-wanted personnel actions. An employee is deemed to havebeen insured duLing the entire period of his erroneous sepa-ration or suspension.

Note: Effective on or after October 21, 1972, no lifeinsurance deductions are to be withheld fromany backpay adjustment for the Dpro , of sus-pension or separation unless de, ' or- acciden-tal dismemberment of the employee occurs duringthat period (Paragraph S4-2e, Federal PersonnelManual Supplement 870-1, Instruction 14).

Reference: See partial text, appendix XI.

III-1

APPENDIX IV APPENDIX IV

RESTORATION OF ANNUAL LEAVE

Under provisions of 5 U.S.C. 5596(b)(2), annual leave in

excess of the maximum leave accumulation permitted by law

shall be credited to a separate leave account for the employ-

ee who has undergone an unjustified or unwarranted personnel

action that has caused annual leave loss.

Permitted under 5 U.S.C. 6304(d) (supp. III, 1973) is

the restoration of annual leave that is lost to an employee

through no fault of the employee because of

-- administrative error, when the error causes a loss of

annual leave otherwise accruable after June 30, 1960;

-- exigencies of public business, when the annual leave

was scheduled in advance; or

-- sickness of the employee, when the annual leave wasscheduled in advance.

Under these circumstances, restored annual leave in excess

of the maximum leave accumulation permitted by law may be

credited to a separate leave account for the employee and

may be available for use within the time limits prescribed

by CSC regulations.

Exception: According to CSC implementing reaulations in

Federal Personnel Manual Letter 630-22, January 11, 1974,

unwarranted or unjustified personnel actions covered under

5 U.S.C. 5596 (1970) are not considered to be administrative

errors for the purposes of 5 U.S.C. 6304(d).

Note: Any leave restored under 5 U.S.C. 5596(b)(2)or 5 U.S.C. 6304(d) but unused and stilA avail-

able to the employee may be included in the

lump-sum payment under 5 U.S.C. 5551 or 5552(1)

but may not be retained to the credit of the

employee under 5 U.S.C. 5552(2). The sameprinciple applies to annual leave restoredunder 5 U.S.C. 5562(a).

Reference: See partial text, appendix XII.

IV-1

APPENDIX V APPENDIX V

5 U.S.C. 6101: GENERAL REQUIREMENTS

A basic workweek of 40 hours is prescribed for Federalemployees under 5 U.S.C. 6101. It also requires that

--the workweek be scheduled in 8-hour segments, Mondaythrough Friday, when possible;

--the working hours on each day be the same:

-- employees be assigned ec a particular tour of dutyat least a week in adi,nce; and

-- the head of an agency issue regulations setting thehours that will constitute the workweek in thatagency.

Exception: According to 5 U.S.C. 6101(a)(3) (1970), thebasic workweek may be scheduled during a period other thanMonday through Friday or changed without advance notice ifthe agency head determines (1) the agency's function wouldbe seriously handicapped or (2) its costs would be substan-tially increased by following the usual workweek sequence.

V-1

APPENDIX VI APPENDIX VI

NO WORK, NO PAY RULE

Before the issuance of 54 Comp. Gen. 1071 (1975),Comptroller General decisions had employed the "no work,no pay" rule in cases regarding overtime compensation. Thatis, since the authority for payment of overtime compensationcontemplated the actual performance of duty during the over-time period, an employee who did not perform the overtimecould not be entitled to overtime pay. The decisions heldthat the withdrawal or reduction in pay referred to in theBack Pay Act, 5 U.S.C. 5596 (1970), meant the actual with-drawal or reduction of pay or allowances which the employeehad previously received or was entitled to.

In B-175867, June 19, 1972, the employee involved wasdeprived of the opportunity to wore overtime because theagency failed to comply with a union agreement. The "nowork, no pay" rule was applied, and the employee was deniedrecompensation since the improper action was one of omissionand not considered an unjustified or unwarranted personnelaction under 5 U.S.C 5596 (1970).

The Comptroller General has since reexamined his posi-tion that omission or failure to take action for an improperreason does not entitle the employee to backpay. He over-ruled his previous decisions and has since held that a vio-lation of a mandatory provision in a labor-management agree-ment which causes an employee to lose pay, allowances, ordifferentials may be an unwarranted or unjustified personnelaction.

He also has held that an unjustified personnel actionmay involte acts of omi 'sion as well as commission. Examplesare failure to promote an employee in a timely fashion orfailure to afford an opportunity for overtime work in accor-dance with requirements of agency regulations or collectivebargaining agreements. Therefore, under the Back Pay Act, anagency may retroactively grant backpay to an employee whohas undergone an unjustified or unwarranted personnel action,although such action was one of omission rather than one ofcommission.

VI-1

APPENDIX VII APPENDIX VII

FAILURE TO CONSULT AS PROVIDED

IN NEGOTIATED AGREEMENT

When an agency has agreed to consult with an exclusivebargaining representative on a particular matter and ex-pressed that intention in the negotiated agreement but failedto fulfill its contractual obligation to do so, two deter-minations are necessary for backpay to be appropriate. Itmust be determined that the agency not only violated theagreement to consult, but also that such improper actiondirectly caused the grievant to suffer a withdrawal of pay.That is, the denial of pay or benefits would not have oc-curred were it not for the violation of the agreement.

Unless the agreement reauires the agency to carry outthe consulting advice it receives, there is no causal rela-tionship between the agency's failure to consult (an unwar-ranted or unjustified personnel action) and the employee'sloss of pay, allowances, or benefits. For example, even ifthe agency had consulted with the union concerning hours-of-work changes, there is no reason to believe the agency wouldhave modified a proposed change in the workweek schedules toallow the grievant overtime work. Since it cannot be shownthat the agency's failure to consult would have resulted inovertime pay to the grievants, back pay is not an appropriateremedy.

VII-1

APPENDIX VIII APPENDIX VIII

TEXT OF BACK PAY ACT OF 1966, 5 U.S.C. 5596,

AS AMENDED THROUGH JANUARY 1, 1977

"S 5596. Back pay due to unjustified personnel action.

"(a) For the purpose of this section, 'agency' means--

"(1) an Executive agency;

"(2) the Administrative Office of the UnitedStates Courts;

"(3) the Library of Congress;

"(4) the Government Printing Office; and

"(5) the government of the District of Columbia.

"(b) An employee of an agency who, on the basis of anadministrative determination or a timely appeal, is found byappropriate authority under applicable law or regulation tohave undergone an unjustified or unwarranted personnel actionthat has resulted in the withdrawal or reduction of all or apart of the pay, allowances, or differentials of the em-ployee--

"(1) is entitled, on correction of the personnelaction, to receive for the period for which the personnelaction was in effect an amount equal to all or any partof the pay, allowances, or differentials, as applicable,that the employee normally would have earned during thatperiod if the personnel action had not occurred, lessany amounts earned by him through other employmentduring that period; and

"(2) for all purposes, is deemed to have per-formed service for the agency during that period, ex-cept that--

"(A) annual leave restored under thisparagraph which is in excess of the maximum leaveaccumulation permitted by law shall be creditedto a separate leave account for the employee andshall be available for use by the employee withinthe time limits prescribed by regulations of theCivil Service Comnmission, and

"(B) annual leave credited under subpara-graph (A) of this paragraph but unused and

ViIi-l

APPENDIX VIII APPENDIX VIII

still available to the employee under Regulationsprescribed by the Commission shall be included inthe lump-sum payment under section 5551 or 5552(1)of this title but may not be retained to thecredit of the employee under section 5552(2) ofthis title.

"(C) The Civil Service Commission shallprescribe regulations to carry out this section.However, the regulations are not applicable to theTennessee Valley Authority and its employees."

As amended, Public Law 94-172, Section l(a), December23, 1975, 89 Stat. 1025.

(CSC regulations implementing this statute are found at5 C.F.R., Part 550, Subpart H.)

VIII-2

APPENDIX IX APPENDIX IX

INTERPRETATIONS OF BACK PAY ACT

OF 1966, 5 U.S.C. 5596 (1970)

1. "Appropriate authority" may mean an agency head, the

decisionmaker designated pursuant to a statutory appeals pro-

cedure (e.g., the Federal Employee Appeals Authority), an ad-

ministrative law judge, an arbitrator appointed through a

collective bargaining agreement, or the Comptroller General.

2. An "unjustified or unwarranted personnel action"

means any act of commission or omission by an authorized

agency official which i. in violation of a nondiscretionary

requirement, whether that requirement is found in a law,

regulation, Executive order, Civil Service Commission re-

quirement, agency personnel policy manual, or negotiated col-

lective bargaining agreement.

3. "Resulted in the withdrawal," etc. means that the

unjustified or unwarranted action must have directly caused

the harm to the employee for which the employee seeks resti-

tution. For example, a failure to consider an employee for

a promotion when several other equally qualified candidates

are under consideration as well, in violation of a binding

agreement, is an unjustitied or unwarranted personnel action.

However, no backpay is warranted since it cannot be said that

"but for" the wrongful action, the employee would have

received the promotion.

4. "Withdrawal or reduction of all or a part of_paya"

etc., includes failure to give the benefit in question in the

first place in which there was a mandatory requirement that

such benefit be granted to a specific employee.

5. The term "pay, allowances, or differentials" in-

cludes, in addition to the usual salary and promium pay

benefits in the present regulations, a number of monetary

benefits which are the usual perquisites of Federal employ-

ment. Thus, annual and sick leave and health insurance bene-

fits, for example, could be included in a make-whole award;

but benefits not directly attributable to a person's status

as a Federal employee would not (e.g., access to public

transportation, making a car unnecessary).

IX-1

APPENDIX X APPENDIX X

TEXT OF HEALTH INSURANCE FOR RESTORED EMPLOYEES

The m~.: -whole remedy concerning health insurance forreinstated employees who were improperly removed is governedby 5 U.S.C. 8908 (1970), which provides:

'i 8908. Coverage of restored employee.

"An employee enrolled in a health benefits planunder this chapter who is removed or suspended withoutpay and later reinstated or restored to duty on theground that the removal or suspension was unjustified orunwarranted may, at his option, enroll as a new employeeor have his coverage restored, with appropriate adjust-ments made in contributions and claims, to the same ex-tent and effect as though the removal or suspension hadnot taken place."

Civil Service Commission regulations impleme;nting thisstatute are contained in paragraph S8-5, Federal PersonnelManual Supplement 890-1, Instruction 34, September 24, 1973,which reads:

"S8-5. RESTORATION TO DUTY AFTER ERRONEOUSREMOVAL OR SUSPENSION

"a. Employee election. The enrollment of anemployee who is suspended without pay continues for upto 365 days in nonpay status, as stated in S8-4a. Theenrollment of an employee who is removed is terminatedat the end of the pay period in which he is removed.If the enrollment of an employee who was removed or sus-pernded without pay was terminated, and the employee isordered restored to duty on the grounds that the suspen-sion or removal was unwarranted or unjustified, he mayelect either to (1) haze his prior enrollment reinstatedretroactive to the date it was terminated, or (2) enrollin the plan and option of his choice, the same as a newemployee.

"b. Reinstatement of enrollment. If the employeeelects to have his prior enrollment reinstated retroac-tively, withholdings and contributions must also be maderetroactively just as though the erroneous suspension orremoval had not taken place. His health benefits cover-age is considered to have been continuously in effect,and he and any covered family members will be retroac-tively entitled to the full benefits of his plan.

X-1

APPENDIX X APPENDIX X

"c. New enrollment. If the employee elects to

enroll instead ofhaving-Es prior enrollment reinstated,

his enrollment would be effective as stated in S7-2b. He

is not retroactively entitled to benefits from his plan

and no retroactive withholdings and contributions should

be made.

"d. Notice to emolovees. An employee ordered

restored to duty after erronous removal or suspension

should be notified of the choices open to him regarding

his health benefits coverage. lie also should be advised

that if he elects to enroll as a new employee, the

period of his suspension or removal (during which his

enrollment was not in effect) will not be considered as

an interruption to his continuous enrollment for pur-

poses of continuing enrollment after retirement, pro-

vided he enrolls within 31 days after the date he is

ordered restored to duty."

X-2

APPENDIX XI APPENDIX XI

PARTIAL TEXT OF GOVERNMENT LIFE INSURANCE

FOR RESTORED EMPLOYEES

The make-whole remedy regarding Government lifeinsurance for a Government employee who is reinstated on thebasis of a finding that the employee had undergone an unjus-tified personnel action is covered by 5 U.S.C. 8706(f) (supp.III, 1973) and provides:

"(f) If the insurance of an employee stops be-cause of separation from the sevice or suspension with-out pay, and the separation or suspension is thereafterofficially found to have been erroneous, the employeeis deemed to have been insured during the period oferroneous separation or suspension. Deductions other-wise required by section 8707 of this chapter shallnot be withheld from any backpay awarded for the periodof separation or suspension unless death or accidentaldismemberment of the employee occurs during such period."

Civil Service Commission regulations implementing thisstatute are contained in paragraph S4-2e, Federal PersonnelManual Supplement 870-1, Instruction 14, September 12, 1973,and provide:

"e. Restoration after erroneous suspension orremoval. Effective on or after October 21, TlS-, 7 fan employee is retroactively restored to duty with payafter an erroneous suspension or removal, there will beno life insurance withholdings made from the retroactivepay adjustment for the period of suspension or removal.However, if death or accidental dismemberment occursduring the period between the employee's removal and thefinding that the separation or suspension was erroneous,insurance proceeds will be paid and premiums will bewithheld from back pay awarded for the period of separa-tion or suspension. Where payment of back pay was madebefore October 21, 1972, withholdings for the period ofsuspension or removal must be made from the payadjustment."

XI-1

APPENDIX XII APPENDIX XII

PARTIAL TEXT OF SF, IAL ACCUMULATION OF ANNUAL LEAVE

A new make-whole remedy was provided by enactment ofPublic Law 93-181 on December 14, 1973 (codified at 5 U.S.C.6304(d), (supp. III, 1973)); it permits the restoration ofannual leave that is lost to an employee, through no fault ofthe employee, because of administrative error, exigencies ofp ic business, or sickness. Section 6304(d) provides:

'" 6304. Annual leave; accumulation.

* * * * *

"(d)(l) Annual leave which is lost by operationof this secton because of--

"(A) administrative error when the errorcauses a loss of annual leave otherwise accruableafter June 30, 1960;

"(B) exigencies of the public businesswhen the annual leave was scheduled in advance; or

"(C) sickness of the employee when the an-nual leave was scheduled in advance:

"shall be restored to the employee.

"(2) Annual leave restored under paragraph (1)of this subsection, or under clause (2) of section5562(a) of this title, which is in excess of the maximumleave accumulation permitted by law shall be credited toa separate leave account for the employee and shall beavailable fOL use by the employee within the time limitsprescribed by regulations of the Civil ServiceCommission. Leave credited under this paragraph butunused and still available to the employee lunder theregulations prescribed by the Commission shall be in-cluded in the lump-sum payment under section 5551 or5552(1) of this title but may not be retained to thecredit of the employee under section 5552(2) of thistitle."

XII-1

APPENDIX XII APPENDIX XII

The Civil Service Commission has promulgated regulationsand guidelines for implementing the above-quoted statute inFederal Personnel Manual Letter 630-22, January 11, 1974.The Commission guidelines state that "administration error"as utilized in 5 U.S.C. 6304(d)(l)(A) does not include un-justified or unwarranted personnel actions pursuant toU.S.C. 5596. In this regard, 5 U.S.C. 5596(B)(2) containsrecredit authority for unjustified and unwarranted personnelactions.

XII-2