Washington, DC

U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code

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Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


10/07/2014

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Date

The claimant seeks compensatory time in lieu of overtime pay for the time he was restricted to the Cheyenne Mountain Operations Complex (CMOC) during the Vigilant Shield 13 (VS-13) national-level exercise (NLE).  We received the claim request on November 14, 2013, the agency administrative report (AAR) on January 26, 2014, and his comments on the AAR on February 26, 2014.[1]  For the reasons discussed herein, the claim is denied. 

The claimant seeks to be “fairly compensated for the time [he] was restricted in CMOC to validate a formal Training Objective-‘our assigned mission that day.’”  In the November 8, 2012, agency grievance on this matter, the claimant asserts his situation is not covered by the following extract from “command policy…NNCI36-155, para 6.6.1” which states:

An employee is not considered restricted for “work-related reasons” if, for example, the employee remains at the post of duty voluntarily, or if the restriction is the natural result of geographic isolation or the fact that the employee resides on the agency’s premises.  For example, in the case of an employee assigned to work in a remote area or on a ship, the fact that the employee has limited mobility when relieved from duty would not be a basis for finding that the employee is restricted for work-related reasons.

The claimant states these criteria are not applicable “[b]ecause the specific exercise training objective required exercise participants (employees) to remain” in CMOC; thus, his staying was not voluntary.  He asserts that because it was a planned exercise, it “is not a natural result of geographic isolation.”  The claimant asserts CMOC does not have residential facilities, so that condition is not met.  With regard to being in a remote area or on a ship, the claimant asserts that condition is not valid:  “We don't work on a ship and we are not assigned to a facility located in a designated remote area.”  With regard to being relieved from duty and being free to eat, sleep, exercise, etc., the claimant states:

The requirement was to have 550 personnel in the complex to check the filtration systems.  That did not mean it had to be during this exercise.  This was in fact a “target of opportunity” (since the exercise TO [training objective] had a COOP scenario, why not check the filtration system at the same time?)  Since we were required to stay, we need to be compensated.  This was not a voluntary duty assignment and we feel the requirement to remain in the mountain for a “habitation and physical health” experiment falls outside our duty requirements.  Although food was available, we had to pay for it.  Cots were provided, but we were supposed to bring our sleeping bag & pillow.  Blankets were to be available, but none were provided.  This really sound a lot like TDY [temporary duty], i.e., I’m required to go somewhere other than my house, required to sleep in another location, required to buy my food - sounds like compensation is required.[2]

In its AAR, the agency confirms the claimant participated in the previously described NLE at Cheyenne Mountain Air Force Station (CMAFS) which, for purposes of this claim, appears to be synonymous with CMOC.  The agency states that when not at their assigned work stations, participants “were permitted to attend to personal desires without regard to the ongoing NLE provided they did not leave the confines of CMAFS.”  The agency states, in pertinent part:

Apart from the initial recall notification and the all-personnel briefing on the NLE, employees were not required to remain in a state of readiness to respond to the NLE.  Rather, their individual work responsibility did not arise until such time as they reported for duty at their respective prescribed time (i.e., first or second shift).  In fact, when not on shift, personnel were not physically capable of performing duties as each duty station was available for only a single worker.  Therefore, the shift worker not on duty was prevented from working by the shift worker currently on duty.

The agency rests its denial on the regulations covering standby duty under section 550.112(k) of title 5, Code of Federal Regulations (CFR).[3] The agency asserts that the claimant, while restricted, was “not required to remain in a state of readiness when not performing duties during [his] assigned shift.”  The agency further states that “[w]hile admittedly austere conditions existed within CMAFS,” the claimant “was able to avail [himself] of the facilities and normal activities which are present on any normal military installation to meet personal needs and desires,” and that the claimant was “neither working, in a standby status nor required to remain in a state of readiness while confined to the Cheyenne Mountain Complex as a result of the NLE.”

In his February 26, 2014, comments on the AAR, the claimant reiterates the training objective of the NLE:  “The TO was to check if the air filtration, water and other systems would work effectively with ~550 personnel utilizing them for an extended period of time.”  In response to the agency’s assertion that he was not required to remain in a state of readiness, the claimant states this analysis overlooks “that in order to validate the TO, VS-13 participants were required to remain within the complex for the entire period to check the systems” and that “[t]he objective was to have the complex locked down and personnel accomplish mission tasks, use the air, water, electrical, consumables, etc. to test the viability of the facility and human support system during a disaster/crisis.”  With regard to the agency stating personnel were advised they could use their personal time and CMOC facilities as they deemed appropriate, the claimant asserts this was part of the testing of the facility:  “They encouraged personnel to use the facilities, eat in the dining room, take showers, etc., to see if the systems could handle the increased workload.”  He asserts that:

To meet the VS-13 Training Objective we were directed to participate in VS-13, including the time in the Cheyenne Mountain Complex outside regular works hours. 100 % of this time was for the benefit of the agency.

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…BOTTOM LINE:  Success for this formal Training Objective (TO) “required” our participation, which means we should be compensated for the time supporting the TO.

Under 5 U.S.C. § 5542(a), FLSA exempt employees may generally be paid overtime for hours of work officially ordered or approved in excess of 40 hours in an administrative workweek or in excess of 8 hours in a day.  

The regulation applicable to the claim is 5 CFR 550.112(k), Standby duty, which states:

(1) An employee is on duty, and time spent on standby duty is hours of work if, for work-related reasons, the employee is restricted by official order to a designated post of duty and is assigned to be in a state of readiness to perform work with limitations on the employee’s activities so substantial that the employee cannot use the time effectively for his or her own purposes.  A finding that an employee’s activities are substantially limited may not be based on the fact that an employee is subject to restrictions necessary to ensure that the employee will be able to perform his or her duties and responsibilities, such as restrictions on alcohol consumption or use of certain medications.

(2) An employee is not considered restricted for ‘‘work-related reasons’’ if, for example, the employee remains at the post of duty voluntarily, or if the restriction is a natural result of geographic isolation or the fact that the employee resides on the agency’s premises.  For example, in the case of an employee assigned to work in a remote wildland area or on a ship, the fact that the employee has limited mobility when relieved from duty would not be a basis for finding that the employee is restricted for work-related reasons.

Performing a daily schedule of normal living, such as eating, toileting, and sleeping, is not work; there is no undertaking or accomplishment for the benefit of the employer.  While “testing” the capacity of the facilities may be construed to be a by-product of the NLE, the claimant’s eating, toileting and, indeed, breathing, were functions performed primarily for his own benefit, notwithstanding the claimant’s bare assertions to the contrary.  The record shows the claimant was not required to be in a state of readiness when he was relieved from his shift of duty.  Therefore, the time at issue in this claim does not meet the requirements for standby duty under 5 CFR 550.112(k)(1).

The claimant misstates the meaning of 5 CFR 550.112(k)(2) when he asserts the NLE “situation is not a natural result of geographic isolation, it’s an exercise” and that “[w]e don’t work on a ship and we are not assigned to a facility located in a designated remote area.” [4] The requirement that the claimant remain within the confines of the CMOC for the duration of the NLE is similar to the temporary isolation of employees on ship shakedown cruises or those temporarily placed on vessels to perform equipment repairs.  The examples in the regulation are not exhaustive, and we find the claimant’s isolation for the duration of the NLE is a situation fully encompassed by the plain language and meaning of 5 CFR 550.112(k)(2).  See, e.g., B-164683, July 17, 1968; B-175275, May 15, 1973; and B-170264, May 31, 1978.

The exclusion of sleep and meal times from compensable hours of work is made clear in 5 CFR 550.112(m), Sleep and meal time:

(1)   Bona fide sleep and meal periods may not be considered hours of work, except as provided in paragraphs (m)(2), (m)(3), and (m)(4) of this section. If a sleep or meal period is interrupted by a call to duty, the time spent on duty is hours of work.

(2)   Sleep and meal periods during regularly scheduled tours of duty are hours of work for employees who receive annual premium pay for regularly scheduled standby duty under 5 U.S.C. 5545(c)(1).

(3)   When employees are assigned to work shifts of 24 hours or more during which they must remain within the confines of their duty station in a standby status, and for which they do not receive annual premium pay for regularly scheduled standby duty under 5 U.S.C. 5545(c)(1), the amount of bona fide sleep and meal time excluded from hours of work may not exceed 8 hours in any 24-hour period. No sleep time may be excluded unless the employee had the opportunity to have an uninterrupted period of at least 5 hours of sleep during the applicable sleep period. For work shifts of less than 24 hours, agencies may not exclude on-duty sleep periods from hours of work, but must exclude bona fide meal periods during which the employee is completely relieved from duty.

(4)   For firefighters compensated under 5 U.S.C. 5545b, on-duty sleep and meal time may not be excluded from hours of work.

The claimant does not receive annual premium pay for scheduled standby duty under 5 U.S.C. 5545(c)(1); therefore, 5 CFR 550.112(m)(2) does not apply.  As previously discussed in this decision, the claimant was not in a standby status during the NLE at CMOC; therefore, 5 CFR 550.112(m)(3) does not apply.  The claimant is not a firefighter compensated under 5 U.S.C. 5545b; therefore, 5 CFR 550.112(m)(4) does not apply.  Thus, the claimant’s request to receive compensatory time under 5 U.S.C. § 5543 in lieu of overtime pay under 5 U.S.C. § 5542 for the time he spent eating and sleeping is barred by law and regulation. 

That the NLE may have had a “training objective” does not, as the claimant asserts, change the exercise into a training event as defined in 5 U.S.C. § 4101(4):

‘‘training’’ means the process of providing for and making available to an employee, and placing or enrolling the employee in, a planned, prepared, and coordinated program, course, curriculum, subject, system, or routine of instruction or education, in scientific, professional, technical, mechanical, trade, clerical, fiscal, administrative, or other fields which will improve individual and organizational performance and assist in achieving the agency’s mission and performance goals.

The agency states the NLE “was constructed and designed to meet exercise objectives established by Presidential and National-Level security directives” referencing, in relevant part, Department of Defense Instruction 3020.26, Department of Defense Continuity Programs, which requires the heads of DoD components to “test and exercise continuity plans at least annually, or as otherwise directed, to evaluate and validate program readiness.”  The claimant admits as much when he describes the NLE as requiring him to “remain in the mountain for a ‘habitation and physical health’ experiment.”[5] 

Commenting on the AAR, the claimant describes what he views as the inequity of not being paid for his time in the CMOC:

Military personnel are compensated 24/7.  As contractors prior to becoming DoD Civilians, our companies would have compensated us for ALL of the time we were locked in the Cheyenne Mountain Complex.  We were paid for ALL hours we were required to support the government.  Now as DoD Civilians, we were not compensated to support a formal training objective. 

OPM adjudicates compensation claims for certain Federal employees under the authority of section 3702(a)(2) of title 31, United States Code (U.S.C.).  The authority in 31 U.S.C.§ 3702(a)(2) is limited to deciding if the governing statutes and regulations have been properly interpreted and applied in determining the pay and/or benefits which an employee may be entitled to or granted.  Therefore, the claimant's assertion of inequity with regard to how contractors and uniformed military personnel are paid has no bearing on our claim determination. 

This settlement is final.  No further administrative review is available within OPM.  Nothing in this settlement limits the employee’s right to bring an action in an appropriate United States Court.

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