The Attorney General’s Office has confirmed that the laws pertaining to double pay do not apply to all essential GovGuam workers during the current crisis.
Attorney General Leevin Camacho explains that it’s not a very clear-cut answer and applying the double pay rule to this current crisis is like trying to put a square peg in a round hole.
When Gov. Lou Leon Guerrero partially shut down the government to the public in response to efforts to contain the spread of the coronavirus on island, she did so pointing out that GovGuam employees would remain on work status.
Drama over double pay ensued after her administration confirmed that she would not be paying double pay to those on the frontlines, citing the rules do not authorize this as the current crisis does not meet the requirements of GovGuam agency operations being closed.
On Friday, Attorney General Leevin Camacho issued an opinion confirming the Governor’s stance but as he explains, it’s not cut and dried because the rule, as it was written, does not cover pandemic responses. The AG further stated that the government has never paid out double pay under the rule.
“We recognize the sacrifice and risk that our first responders have had to go through in this situation. But this rule was not intended to cover a situation like this and I know they talked about typhoon pay, this is just something new,” Camacho said.
He added: “So although the request was for a more blanket opinion, we don’t have enough facts before us and it would really depend on the specific circumstances for the agency status of that facility. The last criteria would be whether or not employees were required to remain on duty in order to perform essential services and the Governor’s executive order pointed out that everyone would remain on work status.”
The AG says that receiving double pay will hinge on whether the appointing authority or agency director has identified employees as providing essential services and were required to report to work.
This determination is on an agency-to-agency basis, the AG noted, adding that autonomous agencies can set their own rules when it comes to compensation.
“This is not a very clear-cut thing, everyone is going to have to go through and determine on an agency-by-agency level whether or not they could be potentially entitled to double pay or compensatory time pursuant to rule 8406,” the AG said.
He says the AG’s role was to determine who is able to be paid under rule 8406, not who should be paid, stressing that would be a policy decision that the legislature needs to make.
But if the legislature was to amend the policy at this time what would become of the Governor’s differential pay executive order?
“There was actually a bill that was introduced to the legislature that would have codified the statute. It would have been a legislative act to codify the differential pay that’s part of the executive order that was passed and then vetoed but the legislature ultimately set compensation pay,” Camacho said.
The governor has stated that she can’t afford to pay both double pay and differential pay.
But the AG says amending rule 4806 would not impact the governor’s executive order, further stating that the legislature and governor can work together as initially planned.
He added that the best way to resolve this issue is by having our policymakers determine who should be entitled to differential pay for this COVID-19 emergency. And once that’s decided, the appropriate mechanism needs to be put in place.