s9700856

Office of the General Counsel

Matter of [XXX]
File Number: S9700856

OPM Contact: Jo-Ann Chabot

An employee has submitted a claim through her employing agency for restoration of 102.99 hours of earned compensatory time. The claim, which is denied for the reasons stated below, originally was submitted to the General Accounting Office and then transferred to the Office of Personnel Management (OPM).

The employee said that, in May 1996, her employing agency without notifying her in advance substituted paid overtime for the compensatory time that she and other employees in her unit had earned. The substitution resulted from an administrative change of her unit's identification code and did not result from a physical move. It appears from the record that the agency decided to change the unit identification code in September 1995 and notified financial managers that there could be an adverse impact on individual employees with respect to their earned leave. The agency reaffirmed the intended change and repeated its prior advice in December 1995 and, in February 1996, the agency effected the change to the unit identification code. It also appears that supervisory personnel either did not receive this information or did not pass it on to the workforce. The agency denied the claimant's request for restoration of her compensatory time because it did not find any errors in its application of the governing regulations, it found that the claimant was not denied any leave or pay entitlement, and it could not adjust its computer programs to differentiate between physical moves and purely administrative changes in a cost effective way.

The relevant statute, 5 U.S.C. 5543, provides that agency heads may, at an employee's request, grant the employee compensatory time off from his or her scheduled tour of duty instead of payment for an equal amount of time spent in irregular or occasional overtime work. Section 5543 also provides that agency heads may provide that an employee, whose rate of basic compensation exceeds the maximum rate of basic pay for GS-10, shall be granted compensatory time off equal to the amount of time spent in irregular or occasional overtime work. The corresponding OPM regulation, at 5 C.F.R. 550.114, tracks the statutory language. The agency's regulations provide that, when an employee separates or transfers to another employing activity, unused compensatory time balances "shall" be paid at the overtime rate in effect when the compensatory time was earned. Although the agency's regulations do not address the circumstances of this claim, they also do not prohibit the agency from substituting overtime compensation for accumulated compensatory time.

In President and Chairman, Import-Export Bank of Washington (B-159597, Aug. 2, 1966), a decision involving a statutory provision similar to 5 U.S.C. 5543, an agency inquired whether it had the administrative authority to convert its employees' accumulated balances of compensatory time to overtime compensation. The Comptroller General of the United States found that it was within an agency's discretion to grant compensatory time off, and that an agency's obligation to pay the employee overtime compensation was not extinguished until the agency in fact granted the employee compensatory time off. The Comptroller General also found that the agency could convert accumulated balances of compensatory time to overtime compensation if the date set for conversion was prospective.

In view of this decision, the agency in this case clearly had the administrative authority to determine that, at a date in the future, it would convert accumulated compensatory time to overtime compensation and to effect that conversion. Accordingly, the claim for restoration of compensatory time is denied.