(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 3 of the Act and this subpart is any action by an authorized official of a department 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 compensation, and periods of enforced paid leave whether or not connected with an adverse action covered by Part 752 of this chapter. § 550.804 Corrective action. (a) When an appropriate authority corrects an unjustified or unwarranted personnel action, the department shall recompute 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 department for the period covered by the corrective action. In making its computation under this paragraph, a department 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 department 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 period 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 department such as by resignation, retirement, removal, reduction in force, expiration of appointment, or transfer to another department, when the employee continued on the rolls of the department 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 3 of the Act, the department 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 department 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 unavaliable 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 3 of the Act, the department shall deduct the amounts earned by the employee from other employment during the period covered by the corrected personnel action. The department 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 3 of the act, if the employee has been restored within one year after his erroneous separation, the department 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. [31 F.R. 11447, Aug. 31, 1966, as amended at 32 F.R. 5768, Apr. 11, 1967] Subpart 1-Pay for Irregular or Intermittent Duty Involving Physical Hardship or Hazard AUTHORITY: The provisions of this Subpart I issued under secs. 1, 2, 80 Stat. 318, 5 U.S.C. App. 1134. SOURCE: The provisions of this Subpart I appear at 32 F.R. 7, Jan. 4, 1967, unless otherwise noted. § 550.901 Purpose. This subpart prescribes the regulations required by Public Law 89-512 for the payment of differentials for irregular or intermittent duty involving unusual physical hardship or hazard to employees. § 550.902 Definition. 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 officer or 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 of the duties listed in the Appendix, except when the duty (1) is an inherent part of his position, (2) has been taken into account in the classification of his position or (3) is regularly assigned to him. (b) The Commission may direct payment of a hazard pay differential in situations where the differential is not payable under paragraph (a) of this section, when it finds that the circumstances are so unusual that a hazard pay differential is equitably justified and the duties have not been taken into account in the classification of the position. § 550.905 Payment of hazard pay differential. (a) When an employee performs duty for which hazard pay differential is authorized under this subpart during any portion of his regularly scheduled daily tour of duty (including regularly scheduled overtime), the agency shall pay him the hazard pay differential for the entire tour of duty (including overtime hours). (b) When an employee for whom the first 40 hours of work is his basic workweek performs duty for which hazard pay differential is authorized under this subpart during any period of continuous service, the agency shall pay him the hazard pay differential for the entire period of continuous service during which the hazardous duty or duty involving physical hardship is performed but not to exceed 16 hours for each calendar day on which work is performed. (c) When an employee performs duty for which hazard pay differential is authorized under this subpart during any portion of a period of irregular or occasional tour of duty (including irregular or occasional overtime duty), the agency APPENDIX A SCHEDULE 1 OF PAY DIFFERENTIALS AUTHORIZED FOR IRREGULAR OR INTERMITTENT HAZARDOUS DUTY High Work. Working on any structure of at least 50 feet above the (3) Flights deliberately undertaken in extreme weather conditions (4) Flights to deliver aircraft which has been prepared for one time flight without being test flown prior to delivery flight; (5) Flights for pilot proficiency training in aircraft new to the pilot under simulated emergency conditions which parallel conditions encountered in performing flight tests; and, (6) Low level flights in small aircraft at altitude of 500 feet and under in daylight and 1000 feet and under at night when the flights are over mountainous terrain. (7) Reduced gravity flight testing in an aircraft flying a parabolic Exposure to hazardous weather or terrain. (1) When working on cliffs, (3) When travel in the wintertime, either on foot or by means of APPENDIX A-Continued SCHEDULE 1 OF PAY DIFFERENTIALS AUTHORIZED FOR IRREGULAR OR INTERMITTENT HAZARDOUS HAZARD PAY DIFFERENTIAL, OF PART 550 PAY ADMINISTRATION (GENERAL)-continued Irregular or intermittent duty (4) When work or travel in sparsely settled or isolated areas results in (3) Official duty aboard a Deep Research Vehicle when it sub- (4) [Reserved] (5) Participating as a test subject underwater in a mock-up component undergoing an underwater space simulation study, as a technician assembling underwater mock-up components, or as an underwater observer to an underwater space simulation study. Firefighting. Participating as emergency member of a firefighting crew in fighting fires of Government equipment, installations, or buildings. Work in open trenches. Work in an open trench 15 feet or more deep until proper shoring has been installed. Exposure to hazardous agents. Work with, or in close proximity to. (1) explosive or incendiary materials which are unstable and highly sensitive; (2) Toxic chemical materials when there is a possibility of leakage or spillage; (3) Materials of micro-organic nature which when introduced into the body are likely to cause serious disease or fatality and for which protective devices do not afford complete protection. Land impact or pad abort of space vehicle. Actual participation in dearming and safing explosive ordnance, toxic propellant and high pressure vessels on vehicles that have land impacted or on vehicles on the launch pad that have reached a point in the countdown where no remote means are available for returning the vehicle to a safe condition. Simulated altitude chamber subjects/observers. Participating in Centrifuge Subjects. Actually participating as subject in centrifuge [32 F.R. 7, Jan. 4, 1967, as amended at 32 F.R. 8751, June 20, 1967; 32 F.R. 21023, Dec. 30, 1967] SCHEDULE 2 OF PAY DIFFERENTIALS AUTHORIZED UNDER AUTHORITY OF § 550.904 (a) AND (b) Duty Firefighting. (1) Participating as a member of a firefighting (2) Participating as a member of a SCUBA (Self-Contained Flying. (1) Participating in low level flights as a pilot or SCHEDULE 2 OF PAY DIFFERENTIALS AUThorized UndeR AUTHORITY OF § 550.904 (a) AND (b)-Con. Duty Underwater duty. (1) Diving required in scientific and engineering pursuits, or for inspection, maintenance, or repair of underwater facilities, at a depth of 20 feet or more below the surface, or when visibility is restricted. (2) Participating as a subject in diving research tests which seek to establish limits for safe pressure profiles by working in a pressure chamber simulating diving or, as an observer to the test or as a technician assembling underwater mockup components for the test, when the observer or technician is exposed to high pressure gas piping systems, gas cylinders, and pumping devices which are susceptible to explosive ruptures. (3) Participating in weapons systems trials conducted on submarines at sea under submerged conditions. (4) Participating in full scale trial programs by the Naval Ship Research and Development Center on all classes of submarines at different operational stages, including trials of newly launched submarines, preoverhaul and postoverhaul trials of repaired or modified submarines. Underground work. Work underground performed in the construction of tunnels and shafts, and the inspection of such underground construction, until the necessary lining of the shaft or tunnel has eliminated the hazard. Exposure to Hazardous agents. Work with unknown explosive ordnance when the unknown ordnance is manually manipulated, or when new or unevaluated mechanical or explosive techniques are applied to explosive ordnance. Specialized Physical and Performance Testing. (1) Conducting tests on fire retardant materials when the tests are performed in ventilation restricted rooms where the atmosphere is continuously contaminated by obnoxious odors and smoke which causes irritation to the eyes and respiratory tract. (2) Conducting tests to evaluate the ballistic properties of materials when it involves the preparation of cartridges which necessitate the handling of gun powder. (5 U.S.C. 5544) [32 F.R. 21023, Dec. 30, 1967] |