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


10/04/2016

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Date

The claimant occupies a Supervisory Electronics Engineer position at Wright-Patterson Air Force Base (AFB), in Greene, Ohio.  In an undated letter received by the U.S. Office of Personnel Management (OPM) on September 26, 2014, the claimant seeks $3,986.61 of premium pay for overtime hours he asserts he worked from April 8, 2013, to June 29, 2013.  We received the agency administrative report (AAR) on November 24, 2015.  For the reasons discussed herein, the claim is denied.

The claimant asserts:  “Overtime was approved for a project identified as being critical and requiring the utilization of overtime hours.  All overtime hours were requested by management and approved by my supervisor, finance, and program office management, as well as the required confirmation for payment upon entry of actual overtime hours served.”     

The claimant’s employing agency provided OPM with an AAR concluding “[the claimant] was paid for the amount of overtime allowed per 5 USC 5547 and a statutory Bi-Weekly Premium Pay Cap waiver was not granted.”  The agency also points out: “Section 13(a)(1) of the FLSA [Fair Labor Standards Act] provides an exemption from both minimum wage and overtime pay for employees employed as a bona fide executive, administrative, professional and outside sales employees…[the claimant’s] position description in 2013 annotated this position met the criteria in 5 CFR 551.205 for the Executive Exemption.  As a result, [the claimant’s] position description and SF-50s were coded correctly as Fair Labor Standards Act (FLSA) exempt.”  

The claimant does not challenge his FLSA-exempt status.  FLSA-exempt employees, who are paid under the provisions of title 5, U.S.C., like the claimant, typically are eligible to receive overtime pay under the provisions of 5 U.S.C. 5542. 

The record indicates, and the agency acknowledges, the claimant worked approved overtime from April 8, 2013, to June 29, 2013.  Therefore, no dispute exists about whether the claimant worked overtime.  However, Federal law limits the amount of premium pay a Federal employee may receive.  Under 5 U.S.C. 5547(a) and 5 CFR 550.105, premium pay cannot be paid to General Schedule employees to the extent that doing so would cause an employee's basic pay, overtime pay, the dollar value of compensatory time off, night pay, annual premium pay, Sunday premium pay, and holiday premium pay to exceed the greater of the biweekly rate for-

1. GS-15, step 10 (including any applicable special salary rate or locality rate of pay), or
2. level V of the Executive Schedule.

According to the record, and unchallenged by the claimant, as a GS-14, step 8, (Dayton-Springfield, Greenville, OH locality pay area) during the claim period, the claimant earned $58.18 an hour.  This amounts to $4,654.40 for 80 hours worked per pay period.  A GS-15, Step 10, in the same locality pay area, earned $72.14 an hour during the claim period.  This amounts to $5,771.20 for 80 hours worked per pay period.  Applying the biweekly pay cap to the claimant’s situation, the maximum amount of overtime he could have earned in a pay period would have been $1,116.80.  At an hourly rate of $58.18 and overtime hourly rate of $58.18, the maximum amount of hours that the claimant could work, in addition to his regular 80 hours, would have been 19.2 hours of overtime per pay period.  Therefore, 5 U.S.C. 5547(a) and 5 CFR 550.105 preclude the claimant from receiving any additional overtime pay per pay period.  We note that a level V of Executive Schedule, in the same locality pay area, earned $69.81 an hour during the claim period, which was less than a GS-15, Step 10, and is therefore not relevant for discussion.

Notwithstanding the biweekly premium pay limitations in 5 U.S.C. 5547(a), in certain emergency or mission-critical situations, an agency may apply an annual premium pay cap instead of a biweekly premium pay cap, subject to the conditions provided in law and regulation.  5 U.S.C. 5547(b) and 5 CFR 550.106-107.  This adjustment in the pay cap changes the calculation methodology so that employees may not exceed the annual (rather than the biweekly) rate of pay of the greater of the GS-15, step 10, or the rate for level V of the Executive Schedule.  The approval authority required to change the biweekly pay cap in a mission-critical situation is delegated to the head of an agency. 

In this case, the record does not show the head of the Air Force or his/her designee determined the claimant was performing work critical to the mission of the agency.[1]  Therefore, 5 U.S.C. 5547(b) does not apply.  OPM has no statutory or regulatory authority to make this determination.  Since this determination would be necessary to reach the merits of this claim, we must deny claimant’s request for failure to state a claim for which relief can be granted.     

Finally, the claimant asserts: “If there had been conscious knowledge of the legal limitations on pay limits per pay period, management would have planned/requested the scheduled overtime support from me to be within the pay cap limits and still allow mission success.  I am not necessarily asking to waive the legal aspects of what can be paid out per pay period; I am asking that I be paid for the work that was provided in the absence of the pay cap knowledge by all levels of management and finance."

Payments of money from the Federal Treasury are limited to those authorized by statute, and a lack of information cannot bar the Government from denying benefits which are not otherwise permitted by law.  See Office of Personnel Management v. Richmond, 496 U.S. 414, rehearing denied, 497 U.S. 1046, 111 S. Ct. 5 (1990); Falso v. OPM, 116 F.3d 459 (Fed.Cir. 1997); and 60 Comp. Gen. 417 (1981).  Furthermore, even if they have no actual knowledge, Federal employees are charged with constructive knowledge of statutory requirements pertaining to them and of the implementing regulations authorized to be issued by statute.  See B-173927, October 27, 1971; B-187104, April 1, 1977; and B-192510, April 6, 1979.           

Under 5 CFR 178.105, the burden of proof is on the claimant to establish the liability of the United States and the claimant's right to payment.  OPM does not conduct adversary hearings, but settles claims on the basis of the evidence submitted by the claimant and the written record submitted by the government agency involved in the claim.  See 5 CFR 178.105; Matter of John B. Tucker, B-215346, March 29, 1985.  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.  The claimant has not provided any basis on which his claim for additional overtime pay may be granted.  The claim is accordingly denied for the reasons previously stated in this decision.

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

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