Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Service
U.S. Department of Agriculture
Baudette, Minnesota
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
10/18/2018
Date
The claimant is a Federal civilian employee of the Natural Resources Conservation Service (NRCS), U.S. Department of Agriculture (USDA), in Baudette, Minnesota. She seeks a night pay differential for hours she asserts she worked between 6 p.m. and 6 a.m. We received the claim on January 5, 2018, and the agency administrative report (AAR) on March 5, 2018. For the reasons discussed herein, the claim is denied.
The claimant is a Supervisory Soil Conservationist. Between January 2011, and February 2016, she attended monthly Soil and Water Conservation District (SWCD) board meetings which were scheduled after her regular 8-hour workday. She asserts that attending these board meetings has been a requirement included in her performance standards for the past several years. She believes she is entitled to a night pay differential for the hours spent at the meetings as well as for the hours spent traveling to and from the meetings. She seeks payment in the amount of $927.77, plus any interest due. To support her claim for night pay she includes a spreadsheet she created that shows the location, date, meeting timeframe, and amount of driving to and from each meeting. She also includes printouts from the SWCD board meeting websites showing the meetings are, according to her, scheduled in advance of the start of the workweek, her performance plans for fiscal years 2011 through 2016 showing the requirement to attend the board meetings, signed board meeting minutes showing the meeting timeframe and that she attended the meetings, and original timecards covering the board meeting dates showing she was not paid for attending the meetings.
The agency takes the position that the claimant is not entitled to a night pay differential. It believes that the claim should be denied as a matter of law and regulation. In its report to OPM, the agency states “Night pay is differential paid to an employee for regularly scheduled work performed at night…However, there was no indication on Claimant’s original time card submission that these meetings were scheduled in advance of an administrative workweek.”
Section 5545(a) of title 5, United States Code (U.S.C.) authorizes the payment of night differential for “regularly scheduled work” performed between the hours of 6 p.m. and 6 a.m. The U.S. Office of Personnel Management’s (OPM) implementing regulations contained in section 550.103 of title 5, Code of Federal Regulations (CFR) defines regularly scheduled work as “work that is scheduled in advance of an administrative workweek under an agency’s procedures for establishing workweeks…” Taken together, we see that the payment of night differential is limited to work the employee performs during his/her regularly scheduled administrative workweek. Additionally, USDA’s General Manual, Title 360 - Human Resources, Part 427 – NRCS Hours of Duty, Subpart B - Work Schedules, 427.10, Establishment of Workweeks states “All NRCS supervisors will establish a regularly scheduled workweek in writing…for each full-time employee.” Further, section 427.15, Emergency Situations states “Night pay differential is applicable for all regularly scheduled work performed by an employee between the hours of 6:00 p.m. and 6:00 a.m.” Accordingly, hours worked between 6 p.m. and 6 a.m. by NRCS employees needs to be scheduled and approved in writing by the employees’ supervisor in advance of the administrative workweek in which the hours will be worked.
Applying 5 U.S.C. 5545(a), 5 CFR 550.103, and USDA policy to the claimant’s situation, it is clear that she is not entitled to a night pay differential. Under the statute, implementing regulations, and agency policy, the claimant would be entitled to a night pay differential only for night work performed during her own regularly scheduled administrative workweek which, again, must be scheduled and approved in writing by her supervisor in advance of the administrative workweek in which the hours will be worked. She is not entitled to a night pay differential for work performed at night outside of her scheduled workweek. The only exception to this limitation is provided for by 5 CFR 550.122(d), which authorizes a night pay differential for an employee who is temporarily assigned to a different tour of duty that includes night work. This is not the case here. Throughout the claim, the claimant asserts the documentation she provided shows she is entitled to a night pay differential for the hours she attended the board meetings. However, the claimant offered no proof that the board meetings were scheduled and approved in writing by her supervisor before the start of the pay period in which the board meetings took place. Therefore, we must concur with the agency's interpretation of the law, regulation, and agency requirement and find that the claimant’s attendance at the evening board meetings cannot be considered regularly scheduled work as defined by 5 CFR 550.103. Since an agency decision made in accordance with established regulations, as is evident in the present case, cannot be considered arbitrary, capricious, or unreasonable, there is no basis upon which to reverse the decision. Accordingly, her claim for night pay differential is denied.
The only remaining issue is to determine whether the claimant is entitled to pay for time spent traveling to and from the board meetings. In limited circumstances, travel time may be considered hours of work. The rules on travel hours of work depend on whether an employee is covered by or exempt from the Fair Labor Standards Act (FLSA). For FLSA-exempt employees, like the claimant, the crediting of travel time as hours of work is governed under 5 U.S.C. 5542(b)(2) and 5 CFR 550.112(g) and (j). Under 5 U.S.C. 5542(b)(2) and 5 CFR 550.112(g), official travel away from an employee's official duty station is hours of work if the travel is -
• within the days and hours of the employee's regularly scheduled administrative workweek, including regularly scheduled overtime hours, or
• outside the hours of the employee's regularly scheduled administrative workweek, is ordered or approved, and meets one of the following four conditions -
o involves the performance of work while traveling (such as driving a loaded truck);
o is incident to travel that involves the performance of work while traveling (such as driving an empty truck back to the point of origin);
o is carried out under arduous and unusual conditions (e.g., travel on rough terrain or under extremely severe weather conditions); or
o results from an event that could not be scheduled or controlled administratively by any individual or agency in the executive branch of Government (such as training scheduled solely by a private firm or a job-related court appearance required by a court subpoena).
Nothing in the record suggests that the claimant’s situation meets any of the above criteria. She has not met her burden of proving that the claimed travel time qualifies as hours of work under 5 U.S.C. 5542(b)(2) or 5 CFR 550.112(g). Under 5 CFR 178.105, the burden is upon the claimant to establish the liability of the United States and the claimant’s right to payment. Joseph P. Carrigan, 60 Comp. Gen. 243, 247 (1981); Wesley L. Goecker, 58 Comp. Gen. 738 (1979). As discussed previously, the claimant has failed to do so. Accordingly, her pay claim for time spent in a travel status is denied.
This settlement is final. No further administrative review is available within the U.S. Office of Personnel Management. Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.