a specific notice in writing by his agency that he is to be involuntarily separated not by removal for cause on charges of misconduct, delinquency, or inefficiency, (2) after receipt of a general notice of reduction in force by his agency which announces that all positions in his competitive area will be abolished or transferred to another commuting area and his resignation is effective on a date which is not more than 1 year before the abolition or transfer, and (3) after receipt of a notice by his agency proposing to separate him for declining to accompany his activity when it is to be moved to another commuting area because of a transfer of function and when all positions in his competitive area are to be abolished or transferred to another commuting area within a period of not more than 1 year.

(b) When the facts and circumstances available to an agency show that a resignation under paragraph (a) of this section is unrelated to the issuance of one of the notices specified in that paragraph, separation of the employee by resignation is a voluntary separation under section 5595 of title 5, United States Code.

[33 F.R. 12458, Sept. 4, 1968, as amended at 34 F.R. 123, Jan. 4, 1969]

§ 550.707

Postponement of payments.

(a) When, after a break in service of more than 3 days, an employee who is entitled to severance pay accepts one or more temporary appointments of 1 year or less (including any authorized temporary extensions thereof), the agency which separated him shall suspend the payment of severance pay for the duration of the appointment and shall, at the termination of the appointment, continue the payment of the severance pay fund as prescribed by this subpart and section 5595 of title 5, United States Code. The period of service covered by such an appointment is not creditable for purposes of computing the severance pay it interrupts.

(b) When, without a break or after a break in service of 3 days or less, an employee who is entitled to severance pay accepts one or more temporary part-time or temporary intermittent appointments (including any authorized temporary extensions thereof), the agency which

For purposes of computation, payment, and termination of severance pay under section 5595 of title 5, United States Code, and this subpart, service by persons as employees of the county committees established pursuant to section 8(b) of the Soil Conservation and Domestic Allotment Act (16 U.S.C. 590h (b)) is considered to be service with an agency. Subpart H-Back Pay

AUTHORITY: The provisions of this Subpart H issued under 5 U.S.C. 5596. § 550.801

Scope.

(a) Coverage. This subpart applies to (1) agencies as defined in § 550.802(a), and (2) employees as defined in § 550.802(b).

(b) Applicability. This subpart and section 5596 of title 5, United States Code, apply to the computation, payment, and restoration of pay, allowances, differentials, and employment benefits for the purpose of making an employee whole when the employee, on the basis of an administrative determination or a timely appeal, is found to have undergone an unjustified or unwarranted personnel action.

§ 550.802 Definitions.

In this subpart:

(a) "Agency" means (1) an Executive agency (other than the Tennessee Valley Authority) as defined by section 105 of title 5, United States Code; (2) the Administrative Office of the U.S. Courts; (3) the Library of Congress; (4) the Government Printing Office; and (5) the government of the District of Columbia.

(b) "Employee” means an employee of an agency, including a former employee. § 550.803 Determining entitlement.

(a) The requirement for an administrative determination referred to in the phrase "on the basis of an administrative determination or a timely appeal" in section 5596 of title 5, United States Code, is met when an appropriate au

thority in an agency makes a decision on its own initiative in a case involving an unjustified or unwarranted personnel action. The decision may be oral but shall be confirmed in writing.

(b) The requirement for a timely appeal referred to in the phrase "on the basis of an administrative determination or a timely appeal" in section 5596 of title 5, United States Code, is met when an employee or his authorized representative initiates an appeal under an appeals system or procedure established by law, Executive order, or regulation and that appeal is accepted as timely filed by the Government authority administering the appeals system or procedure concerned.

(c) The appropriate authority referred to in section 5596 of title 5, United States Code, and this subpart is (1) the agency or the office or official in an agency authorized under applicable law or regulation to correct, or to direct the correction of, the unjustified or unwarranted personnel action, or (2) a court having jurisdiction to make a determination that a personnel action is unjustified or unwarranted.

(d) To be unjustified or unwarranted, a personnel action must be determined to be improper or erroneous on the basis of either substantive or procedural defects after consideration of the equitable, legal, and procedural elements involved in the personnel action.

(e) A personnel action referred to in section 5596 of title 5, United States Code, and this subpart is any action by an authorized official of an agency which results in the withdrawal or reduction of all or any part of the pay allowances, or differentials of an employee and includes, but is not limited to, separations for any reason (including retirement), suspensions, furloughs without pay, demotions, reductions in pay, and periods of enforced paid leave whether or not connected with an adverse action covered by Part 752 of this chapter.

[33 F.R. 12458, Sept. 4, 1968, as amended at 34 F.R. 5985, Apr. 2, 1969]

§ 550.804 Corrective action.

(a) When an appropriate authority corrects an unjustified or unwarranted personnel action, the agency shall recom

pute for the period covered by the corrective action the pay, allowances, differentials, and leave account (limiting the accumulation to the maximum prescribed by law or regulation for the employee) of the employee as if the unjustified or unwarranted personnel action had not occurred and the employee shall be deemed for all purposes to have rendered service in the agency for the period covered by the corrective action. In making its computation under this paragraph, an agency shall not include as allowances any amount which represents reimbursement for expenses which would have been incurred by an employee in the performance of his job if the unjustified or unwarranted personnel action had not occurred but which were not incurred because of the unjustified or unwarranted personnel action but shall include other allowances which are a form of remuneration to the employee for services that otherwise would have been rendered in the job.

(b) In recomputing the pay, allowances, differentials, and leave account of an employee under paragraph (a) of this section, the agency shall include the following:

(1) Premium pay which the employee would have received had it not been for the unjustified or unwarranted personnel action;

(2) Changes in pay rates by reason of wage surveys, administrative action, law, or other changes of general application; (3) Changes in allowance or differential rates;

(4) Within-grade or step increases or other periodic increases which would otherwise have become due;

(5) Changes in pay caused by changes in assigned working shifts;

(6) Changes in the employee's leave earning rate; and

(7) Any other changes which would affect the amount of pay, allowances, differentials or leave which the employee would have earned had it not been for the unjustified or unwarranted personnel action.

(c) Subject to the provisions of paragraph (d) of this section, the period for which recomputation is required under paragraph (a) of this section is the pe

riod covered by the unjustified or unwarranted personnel action which is corrected and may not extend (1) beyond the date of the employee's death, or (2) beyond the date on which the employee was properly separated from the rolls of his agency such as by resignation, retirement, removal, reduction in force, expiration of appointment, or transfer to another agency, when the employee continued on the rolls of the agency beyond the date on which the unjustified or unwarranted personnel action was taken and the separation would have been effected even though the unjustified or unwarranted personnel action had not been taken.

(d) In computing the amount of back pay under this section and section 5596 of title 5, United States Code, the agency may not (1) include any period during which the employee was not ready and able to perform his job because of incapacitating illness, except that the agency shall grant upon the request of the employee any sick or annual leave to his credit to cover the period of incapacity by reason of illness, or (2) include any period during which the employee was unavailable for the performance of his job and his unavailability was not related to, or caused by, the unjustified or unwarranted personnel action.

(e) In computing the amount of back pay due an employee under this section and section 5596 of title 5, United States Code, the agency shall deduct the amounts earned by the employee from other employment during the period covered by the corrected personnel action. The agency shall include as other employment only that employment engaged in by the employee to take the place of the employment from which the employee was separated by the unjustified or unwarranted personnel action.

(f) In computing the amount of back pay due an employee under this section and section 5596(b) of title 5, United States Code, if the employee has been restored within 1 year after his erroneous separation, the agency may not delete any period from computation on the basis that the employee was under obligation to make an effort to secure other employment during the period covered by the unjustified or unwarranted personnel action.

This subpart prescribes the regulations required by sections 5545 (d) and 5548 (b) of title 5, United States Code, for the payment of differentials for irregular or intermittent duty involving unusual

physical hardship or hazard to employees.

§ 550.902 Definitions.

In this subpart:

(a) "Agency" means an agency as defined in section 5102 (a) of title 5, United States Code.

(b) "Duty involving physical hardship" means a duty which may not in itself be hazardous but which causes extreme physical discomfort or distress and which is not adequately alleviated by protective or mechanical devices, such as a duty requiring exposure to extreme temperatures for a long period of time; a duty involving arduous physical exertion, such as a duty which must be performed in cramped conditions; a duty involving exposure to fumes, dust, or noise which causes nausea, skin, eye, ear, or nose irritation.

(c) "Employee" means an employee of an agency who is covered by chapter 51 of title 5, United States Code.

(d) "Hazardous duty" means a duty performed under circumstances in which an accident could result in serious injury or death, such as a duty performed on a high structure where protective facilities are not used, or on an open structure where adverse conditions such as darkness, lightning, steady rain, or high wind velocity exist.

(e) "Hazard pay differential" means additional pay for the performance of irregular or intermittent hazardous duty or duty involving physical hardship. § 550.903 Establishment of hazard pay

differentials.

(a) A schedule of hazard pay differentials, the hazardous duties or duties involving physical hardship for which they are payable, and the period during

which they are payable is set out as Appendix A to this subpart and incorporated in and made a part of this section.

(b) Amendments to Appendix A may be made by the Commission on its own motion or at the request of an agency. An agency shall submit with its request for an amendment of the appendix information about the hazardous duty or duty involving physical hardship showing (1) the nature of the duty, (2) the degree to which the employee is exposed to hazard or physical hardship, (3) the length of time during which the duty will continue to exist and (4) the degree to which control may be exercised over the physical hardship or hazard, and may recommend the rate of hazard pay differential to be established.

§ 550.904 Authorization of hazard pay

differential.

(a) An agency shall pay the hazard pay differential listed in Appendix A to an employee who is assigned to and performs any irregular or intermittent duty specified in the appendix when that duty is not usually involved in carrying out the duties of his position. Hazard pay differential may not be paid an employee when the hazardous duty has been taken into account in the classification of his position.

(b) For the purpose of this section: (1) "Not usually involved in carrying out the duties of his position" means that even though the hazardous duty may be embraced within the employee's position description it is not performed with sufficient regularity to constitute an element in fixing the grade of the position.

(2) "Has been taken into account in the classification of his position" means that the duty constitutes an element used in establishing the grade of the position. [33 FR. 15199, Oct. 11, 1968; 33 F.R. 15471, Oct. 18, 1968]

§ 550.905 Payment of hazard pay differential.

When an employee performs duty for which hazard pay differential is authorized, the agency shall pay him the hazard differential for the hours in a pay status on the day (calendar day or, to avoid problems involving uncommon tours of duty, and when designated by the agency, a 24-hour period) on which the duty is performed. For purposes of this section hours in a pay status for work performed during a continuous period extending over 2 days shall be considered to have been performed on the day on which the work began and allowable differential shall be charged to that day.

§ 550.906 Termination of hazard pay

differential.

An agency shall discontinue payment of hazard pay differential to an employee when one or more of the conditions requisite for such payment ceases to exist in his case.

§ 550.907 Relationship to additional pay payable under other statutes.

Hazard pay differential is in addition to any additional pay or allowances payable under other statutes. It shall not be considered part of the employee's rate of basic pay in computing additional pay or allowances payable under other statutes.

Irregular or intermittent duty

Rate of hazard pay differential

Effective date