Office of Merit Systems Oversight and Effectiveness

Date: January 23, 2001
File Number: [01-0015]
Matter of: [Claimants Name]

OPM Contact: Melissa A. Drummond

The claimant is employed at the [agency]. He asserts that he is entitled to compensation for 1858.25 hours, worked as overtime for the period from June 14, 1994 through February 23, 1998 as an Engineer. The claimant also states that he was expected to be in an on-call status while he was in the position. For the reasons discussed herein, the claim is denied.

The claimant stated that he was on duty whenever his immediate supervisor was away. He further states that he was required to respond within minutes of being called regarding any emergency or disaster and was restricted from traveling outside of his community. He stipulates that he was in constant communications with base officials via a two-way high frequency portable radio system. He states that he was restricted so close to the base that he could not use his time effectively for his own purposes. When he was away from the base, he was generally required to be at home for calls, thereby substantially limiting his activities.

The agency reports that the claimant was exempt from the Fair Labor Standards Act during the claim period and, as such, is entitled to compensation only when overtime is officially ordered or approved. The agency reports that its search of the claimants time and attendance records did not produce any official approvals of overtime or overtime requests from the claimant. The agency denied the claim because the claimant failed to show that the overtime claimed was officially ordered or approved.

According to CFR 178.105, claims are settled on the written record and the claimant has the burden of proving that he or she actually worked overtime that was officially ordered or approved, or actively induced, by an agency official with authority to order or approve overtime work. Matter of Jim L. Hudson, supra. Only that overtime which has been officially ordered or approved in writing or induced by an official having authority to order or approve overtime work is compensable overtime. See 59 Comp. Gen. 246, B-195155, February 7, 1980; Joan J. Shapira, B-188023, July 1, 1977. Based on our review of the record, we conclude that the claimant has not established that the overtime hours were ordered or approved consistent with the provisions of Title 5, Section 5542, as requested by the agency.

We also reviewed the claim to determine whether the claimant performed standby duty and earned hours of work. The provision governing this issue, 5 CFR 550.112, provides as follows:

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 employees activities so substantial that the employee cannot use the time effectively for his or her own purposes. . . .
2. An employee is off duty, and time spent in an on-call status is not hours of work if: (1) the employee is allowed to leave a telephone number or to carry an electronic device for the purpose of being contacted, even though the employee is required to remain within a reasonable call-back radius; or (2) the employee is allowed for another person to perform any work that may arise during the on-call period.

Information from the appellant states that the claimant was provided an emergency radio by his supervisor. He, therefore, meets situation l. As such, his after hours work is considered off duty. His time spent in an on-call status is not considered hours of work because the claimant was in constant communication with base officials via a two-way high frequency portable radio system.

The Office of Personnel Management (OPM) does not conduct investigations or adversary hearings in adjudicating claims, but relies on the written record presented by the parties. See Frank A. Barone, B-229439, May 25, 1988. Where the agency's factual determination is reasonable, we will not substitute our judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, Mar. 15, 1982, as cited in Philip M. Brey, supra.

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.