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Office of the General Counsel

Date: May 12, 1998
Matter of: [xxx]
File Number: S001008

OPM Contact: Murray M. Meeker

This responds to a request from the [agency].* By letter dated September 3, 1997, the [agency] asked whether back pay could be paid to an employee for an overlong assignment in which the employee performed duties at a higher grade level.

The agency reported that the employee had already been paid for the maximum 120 day period of a temporary promotion, but asks whether there is authority to pay the employee for the period when the employee was still performing duties at a higher grade level, but after the temporary promotion had expired. While the employee was properly paid for the period of the temporary promotion [see 61 Comp. Gen. 492 (1982) and Kenneth Fenner, B-183937, June 23, 1977], the agency is advised that there is no authority to pay the employee beyond the 120 day period of the temporary promotion. See Evelyn O. Cheeseboro, B-217830, August 29, 1985, and Joseph C. Schrage, B-181843, November 19, 1974. The circumstances are comparable to instances where an employee's position is misclassified. See Erlyn D. Felder, B-202685, August 17, 1982. It is well settled that employees are not entitled to back pay for periods of misclassification. 5 U.S.C.  5596(b)(3).

*This decision is being issued pursuant to our authority under 31 U.S.C. 3529 to issue advance decisions to agencies on matters involving compensation and leave.

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