Office of the General Counsel

Date: April 15, 1998
Matter of: [xxx]
File Number: S000958

OPM Contact: Murray M. Meeker

The claimant, a criminal investigator with [agency] in [state] claims that he is entitled to 13.25 hours of regular overtime and 1 hour of availability pay for time that he spent traveling to attend employment-related training. For the reasons discussed herein, the claim is denied.

The agency reported that as a criminal investigator, the claimant is required to participate in various types of employment-related training; that the 36 hour course in question began in [state] on Monday, May 18, 1997, at 8:00 am; that the course concluded on Friday, May 22, 1997, at noon; that the claimant claimed 8 hours of regular overtime for time spent traveling from [state] to [state] and that the claimant also claimed 5.25 hours of regular overtime and 1 hour of availability pay credit for the return trip to [state] on May 23, 1997.

The agency reported further that the claimant had specifically requested that he be authorized to use a government owned vehicle (GOV) to transport himself to [state], and that while the claimant's request had been granted, the claimant had been advised by his supervisor that for time and attendance purposes, the claimant would not be credited with any excess travel time. More specifically, the claimant was advised that he would not be entitled to any availability hours for time spent traveling to [state] on May 17, 1997, and that for the return trip, the claimant would only be credited with availability hours for those hours that would have been necessary for the claimant to fly back to [state].

The claimant attended the training as scheduled. The agency's approved time and attendance sheets recorded that the claimant received 40 hours of training. The claimant was credited with 1 hour of availability time for the period on Friday, May 23, 1997, from 4:30 pm to 5:30 pm, because the claimant would have arrived in [state] at approximately 5:30 pm if he had traveled by airplane.

The claimant asserts that he is entitled to regular overtime under 5 U.S.C. 5542(d)(1)(B) which provides that any criminal investigator who is paid availability pay under section 5545a shall be compensated under section 5542(a) for overtime work which is scheduled in advance of the administrative workweek on a day outside the investigator's basic 40 hour workweek. However, the overtime work that is compensable as regular overtime under section 5542(d)(1)(B) is only work that would otherwise qualify as overtime work under section 5542. See 5 U.S.C. 5545a(c).

In determining entitlement to overtime compensation under title 5, United States Code, time spent in a travel status away from the employee's official duty station is only considered to be hours of employment where:

(A) the time spent is within the days and hours of the regularly scheduled administrative workweek of the employee, including regularly scheduled overtime hours; or

(B) the travel (i) involves the performance of work while traveling, (ii) is incident to travel that involves the performance of work while traveling, (iii) is carried out under arduous conditions, or (iv) results from an event which could not be scheduled or controlled administratively, including travel by an employee to such an event and the return of such employee from such event to his or her official-duty station.

5 U.S.C. 5542(b)(2).

None of the statutory exceptions applies to the claimant. The travel time claimed was not within the days and hours of the claimant's regularly scheduled administrative workweek and it is well established that travel time outside of regular duty hours is not considered hours of employment and is not compensable. See Barth v. United States, 568 F.2d 1329 (Ct. Cl. 1978), as cited in Department of Labor, B-193127, May 31, 1979. The claimant's travel did not involve the performance of work. See John C. Dudkiewicz, B-226191.2, January 4, 1989; Gerald A. Mendiola, B-210722, Dec. 27, 1983; and Charles C. Mills, B-198771, Dec. 10, 1980. The claimant's travel was not carried out under arduous conditions and the travel did not result from an event that could not be scheduled or controlled administratively. See Department of Labor, supra (where training is provided by a Government agency, the training will not be considered to be administratively uncontrollable).

Thus, the claimant is unable to establish that his travel time constituted hours of employment under section 5542(b)(2) or that his travel time constituted overtime work under sections 5542(a) and 5542(d)(1)(B). Availability pay that is claimed on non-regular workdays must involve actual work. 5 U.S.C.  5545a(d)(3).

Accordingly, the employee's claim for regular overtime and availability pay is denied. 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.