November 13, 1998
MEMORANDUM FOR DIRECTORS OF PERSONNEL (CPM 98-5)
FROM: |
HENRY ROMERO
ASSOCIATE DIRECTOR
FOR WORKFORCE COMPENSATION AND PERFORMANCE |
|
|
SUBJECT: |
Recent Legislative Changes |
This is to inform you of several changes related to pay and leave administration
as a result of recent legislation.
- Public Law 105-261, the Strom Thurmond National Defense Authorization
Act, 1999, October 17, 1998
- Public Law 105-277, the Omnibus Consolidated and Emergency
Supplemental Appropriations Act, 1999, October 21, 1998
- Public Law 105-266, the Federal Employees Health Care Protection
Act of 1998, October 19, 1998
Questions?
I. Public Law 105-261, the Strom Thurmond
National Defense Authorization Act, 1999, October 17, 1998
Back Pay
Section 1104 amends the back pay law (5 U.S.C. 5596(b)) by adding a new
provision to clarify that back pay awards are subject to a 6-year statute
of limitations unless a shorter limitation period applies. This amendment
clarifies that the 6-year limitation period in the Tucker Act (28 U.S.C.
2402 et seq.) and the Barring Act (31 U.S.C. 3702) applies to cases under
the back pay law. Section 1104 also adds a new provision to 5 U.S.C. 7121
to clarify that settlements of grievances and arbitration awards under
5 U.S.C. 7121 are subject to the same 6-year statute of limitations. Note
that this amendment does not modify the current 2-year statute of limitations
(3 years for willful violations) provided by the Portal-to-Portal Act
of 1947 for claims under the Fair Labor Standards Act of 1938, as amended,
that are filed on or after June 30, 1994. These changes became effective
on October 17, 1998.
Restoration of Annual Leave for
Employees in Panama
Section 1105 amends 5 U.S.C. 6304(d)(3)(A) to provide for automatic restoration
of annual leave subject to forfeiture under 5 U.S.C. 6304(c) for Federal
employees working to close installations in the Republic of Panama under
the implementation plan for the Panama Canal Treaty of 1977. This provision
is parallel to the authority for automatic restoration of forfeited annual
leave for Department of Defense employees at bases subject to the Defense
Base Closure and Realignment Act of 1990. This change became effective
on October 17, 1998.
Holidays at Duty Posts Outside
the United States
Section 1107 adds a new provision to 5 U.S.C. 6103(b) to provide that
whenever Monday is designated as a holiday under 5 U.S.C. 6103(a), the
first regularly scheduled workday in the week is the holiday for a Federal
employee working overseas whose basic workweek includes Monday, but is
not the typical Monday through Friday work schedule that is found in the
United States. This will have the effect of providing 3-day weekends (Friday,
Saturday, and Sunday) for employees working overseas whose basic workweek
is Sunday through Thursday. This change became effective on October 17,
1998.
II. Public Law 105-277, the Omnibus
Consolidated and Emergency Supplemental Appropriations Act, 1999, October
21, 1998
Federal Wage System Schedule
Adjustments
Section 614 of the Treasury and General Government Appropriations Act,
1999, as contained in section 101(h) of Public Law 105-277, the Omnibus
Consolidated and Emergency Supplemental Appropriations Act, 1999, places
a limitation on pay increases for prevailing rate (wage) employees for
fiscal year 1999. Wage schedules for wage employees are issued at various
times during the year depending on the date a new wage survey begins in
each individual wage area. Pay increases for wage employees in fiscal
year 1999 may not exceed the sum of the General Schedule across-the-board
percentage adjustment under 5 U.S.C. 5303 and the difference between the
overall average percentage locality payments for General Schedule employees
in fiscal year 1998 and fiscal year 1999. The General Schedule percentage
adjustment for 1999 and the average percentage locality adjustment for
General Schedule employees in fiscal year 1999 are not known at this time.
(See p. 4, below.) Therefore, the issuance of wage schedules with effective
dates after September 30, 1998, must be delayed until the maximum wage
adjustment for fiscal year 1999 can be calculated. Any wage increases
on such delayed schedules will be paid retroactively to the normal adjustment
date for the wage areas affected. Section 614 is effective for fiscal
year 1999.
Pay for the Executive Schedule, SES
Members, SL/ST Employees, Administrative Law Judges, and Contract Appeals
Board Members
Section 621 of the Treasury and General Government Appropriations Act,
1999, provides that there will be no increase in rates of basic pay for
the Executive Schedule in fiscal year 1999. Consistent with 5 U.S.C. 5382(b),
the maximum rate of basic pay for members of the Senior Executive Service
(SES) (i.e., the rate for ES-6 before a locality adjustment) will remain
unchanged in 1999 at $118,400, the rate of basic pay for level IV of the
Executive Schedule. Likewise, consistent with 5 U.S.C. 5376(b)(1)(B),
the maximum rate of basic pay (before a locality adjustment) for senior-level
(SL) and scientific or professional (ST) positions will remain unchanged
at $118,400. In addition, the rates of basic pay for administrative law
judges (ALJs) and members of Boards of Contract Appeals will remain unchanged.
Finally, 5 U.S.C. 5304(g)(2) provides that a locality pay adjustment may
not cause total basic pay and locality pay for SES members, SL/ST employees,
ALJs, and Contract Appeals Board members to exceed the rate for level
III of the Executive Schedule ($125,900), which will remain unchanged
in 1999. Decisions about increases in basic pay for SES members and the
extension of locality payments to non-General Schedule employees will
be made later this year.
Sunday Premium Pay
Section 624 of the Treasury and General Government Appropriations Act,
1999, provides that notwithstanding any other provision of law, no part
of any funds provided by this Act or any other Act beginning in fiscal
year 1999 and thereafter shall be available for paying Sunday premium
pay to any employee unless such employee actually performed work during
the time corresponding to such premium pay. This expands the permanent
restriction on the payment of Sunday premium pay under section 636 of
the Treasury and General Government Appropriations Act, 1998, for employees
Governmentwide who do not actually perform work on Sunday, including General
Schedule and prevailing rate (wage) employees. The restriction is no longer
limited to funding from appropriations Acts, but applies to funding from
any Act. This also has the effect of extending the restriction on payment
of Sunday premium pay to payments from any revolving fund that has received
any funding under the provisions of any law. This change restricts the
payment of Sunday premium pay beginning on October 1, 1998.
Firefighter Pay
Section 628 of the Treasury and General Government Appropriations Act,
1999, amends 5 U.S.C. 5542 and adds 5 U.S.C. 5545b to provide new basic
pay and overtime pay provisions for GS-081 Federal firefighters whose
normal work schedule consists of regular and recurring tours of duty which
average at least 106 hours per biweekly pay period. These firefighters
will no longer receive annual premium pay for regularly scheduled standby
duty under 5 U.S.C. 5545(c)(1).
Under the new provisions, overtime hours are hours of work in excess
of 106 hours in a biweekly pay period (or in excess of 53 hours in a week
if pay is computed on a weekly basis) for all covered firefighters, whether
they are exempt or nonexempt from the Fair Labor Standards Act of 1938,
as amended. The overtime hourly rate is one and one-half times the firefighter's
hourly rate of basic pay. The firefighter's hourly rate of basic pay is
derived by dividing the applicable GS annual rate of pay by 2756, which
represents 52 weeks times 53 hours per week. In applying the title 5 GS-10,
step 1, hourly overtime pay limitation, a firefighter's hourly overtime
pay rate may not fall below the firefighter's hourly rate of basic pay.
Under the new pay computation formula, the typical FLSA nonexempt (i.e.,
covered) firefighter with a 72-hour workweek will receive a pay increase
of about 9 percent. Special pay provisions are designed to address those
situations in which the new pay formula would otherwise reduce a firefighter's
pay for regularly scheduled work.
The training law (5 U.S.C. 4109) is also amended to provide that a covered
firefighter's basic pay and overtime pay for his or her regular tour of
duty will continue to be paid during agency-sanctioned training. Finally,
5 U.S.C. 8331(3) is amended to state that basic pay for retirement purposes
includes a firefighter's basic hourly rate (as computed under this law)
for all hours in the firefighter's regular tour of duty. The new firefighter
pay provisions take effect on the first day of the first applicable pay
period beginning on or after October 1, 1998.
General Schedule Pay
Adjustments
Section 647 of the Treasury and General Government Appropriations Act,
1999, sets the overall General Schedule pay increase for January 1999
at 3.6 percent. The conference report accompanying this provision states
that the conferees anticipate that the President will issue an Executive
order later this year allocating the 3.6 percent overall increase between
an across-the-board increase and increases in locality payments. In addition,
the conferees anticipate that the President will exercise his discretion
to distribute any amount allocated for locality payments in the most appropriate
fashion among the pay localities established by the President's Pay Agent.
The Office of Personnel Management will issue salary tables showing the
1999 basic and locality pay rates as soon as possible after these determinations
are made.
Use of Annual Leave to
Qualify for Retirement or Health Benefits Coverage
Section 653 of the Treasury and General Government Appropriations Act,
1999, extends entitlements under 5 U.S.C. 6302(g) to members of the Senior
Executive Service (SES). As amended, 5 U.S.C. 6302(g) provides that an
employee or member of the SES who is being involuntarily separated from
an agency due to a reduction in force or transfer of function may elect
to use annual leave to his or her credit to remain on the agency's rolls
after the date the employee would otherwise have been separated if, and
only to the extent that, such additional time in a pay status will enable
the employee to qualify for an immediate annuity or carry health benefits
coverage into retirement. This change became effective on October 21,
1998.
Availability Pay for Special Agents in
the Diplomatic Security Service
Section 407 of the Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act, 1999, as contained in section
101(b) of Public Law 105-277, the Omnibus Consolidated and Emergency Supplemental
Appropriations Act, 1999, amended 5 U.S.C. 5545a to extend the coverage
of law enforcement availability pay to special agents in the Diplomatic
Security Service of the Department of State.
Section 407 also provides that special agents must have an annual average
of 2 unscheduled duty hours (in excess of 8 regularly scheduled hours)
for each regular workday without taking into account any hours of availability.
This means that all unscheduled duty hours for both Foreign Service and
General Schedule special agents must be hours of actual work. Section
407 provides that these changes will become effective no sooner than 90
days after enactment and after the Director of the Office of Personnel
Management and the Secretary of State agree that all regulations necessary
to implement availability pay for special agents are in effect.
III. Public Law 105-266, the Federal
Employees Health Care Protection Act of 1998, October 19, 1998
Maximum Physicians' Comparability Allowance
Section 7 of Public Law 105-266 amends 5 U.S.C. 5948(a) to increase the
maximum physicians' comparability allowance (PCA) from $20,000 to $30,000
per year for an employee who has served as a Government physician for
more than 24 months. Section 7 also provides that any PCA service agreement
in effect on the effective date of the Act may be modified to increase
the PCA for a physician up to the new maximum amount during the time remaining
under the service agreement. However, section 7 provides that any modification
of an existing service agreement to increase a PCA cannot cause the total
PCA paid to the employee during the calendar year to exceed the new $30,000
maximum or any other applicable limitation (e.g., the aggregate limitation
on pay under 5 U.S.C. 5307). These changes became effective on October
19, 1998. However, the Office of Management and Budget advises that agencies
may authorize a PCA in excess of $20,000 only after revising their existing
PCA plan and obtaining OMB approval of the changes.
Questions
Questions about the changes described in this memorandum may be directed
to the Office of Personnel Management's Pay and Leave Administration Division
at (202) 606-2858; FAX: (202) 606-0824; or email: payleave@opm.gov.
|