U.S. Office of Personnel Management
Compensation and Leave Claim Decision
Under section 3702 of title 31, United States Code
Commander, Joint Region Marianas
Department of the Navy
Piti, Guam
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
11/15/2021
Date
The claimant was employed as an Explosives Safety Specialist, GS-0017-12 with the Safety and Occupational Health (SOH), Commander, Joint Region Marianas (JRM), Department of the Navy (Navy) in Piti, Guam during the period of the claim. [1] He requests back pay in the form of a hazard pay differential (HPD) from April 2018 through August 2020. [2] The U.S. Office of Personnel Management (OPM) received the claim on September 10, 2020, and the agency administrative report (AAR) on January 5, 2021. For the reasons discussed herein, the claim is denied.
On April 29, 2018, the claimant was reassigned to an Explosives Safety Specialist, GS-0017-12, position and assigned to position description (PD) number N7J9297. The claimant asserts agency management failed to acknowledge the requirement to pay HPD “at a rate of 25% to employees exposed to unusual hazards during Quality Assurance Inspections of MEC/UXO [Munitions and Explosive Concerns/Unexploded Ordinance] Field Work operations.” He states:
JRM Explosive Safety Specialist (ESS) PD (See Enclosure 2) indicates through Section II, MAJOR DUTIES AND RESPONSIBILITIES that oversight of MEC field work is heavily weighted and a major component of the 75% PD weighting system defined therein. During performance of the MEC field work identified within the PD, the employee is exposed to unusual hazardous environments and is due compensation at rate of 25% of base pay and per shift, in Accordance With (IAW) 5 USC 5545(d), 5 CFR 550.901-907, and DoD 7000.14R.
In its denial, dated November 2, 2020, the agency explains its determination to deny the claimant HPD by stating:
Our review of the PD to which you were assigned concludes that the exposure to explosives such as MEC and UXO was factored into the original classification of the position; consequently, payment of a differential is not required. In addition, even if payment were to be authorized, it would be limited to the demonstrated circumstances in the applicable regulation, 5 CFR 550.904 and to those identified instances in which the employee met the conditions that would trigger payment of a differential.
….To the extent a differential were to be authorized in the exercise of discretion, it would be limited to those instances in which an employee could show that he/she performed duties that qualified for payment of a differential such as being present on a job site as noted on existing field labor logs. In such case, the differential premium would be paid for the individual instance. You have submitted no evidence in support of your “claim” other than vague statements that you would go out to exclusion zones in unspecified job sites at different times. These statements are not sufficient to demonstrate entitlement; your claim is therefore denied.
In response to the agency’s decision, in an email to OPM dated November 4, 2020, the claimant states:
[J1 Director] statement: “Our review of the PD to which you were assigned concludes that the exposure to explosives such as MEC and UXO was factored into the original classification of the position” appears to not be in compliance with Code of Federal Regulations(s); and while I believe that OPM has separately upheld that agencies are not required to pay HDP for position(s) such as a police officer whom has been training to eliminate improvised Explosive Devices (IED’s), it seems not correct to apply same logic to a Government employee monitoring a contractor inside an exclusion zone; where same employee cannot use their skills or training to avoid and/or mitigate the hazard of being hurt or injured during UXO recovery operations being performed by said contractor.
In its AAR, the agency cites section 550.904(b)(1) and (2) of title 5, Code of Federal Regulations (CFR) and states:
….the determination was made IAW CFR 590.904. Any potential exposure to explosives such as MEC and UXO were factored into the original classification of the positions. There is insufficient objective evidence to demonstrate that the knowledge, skills and abilities described in the PD are insufficient in mitigating potential risk. … Major Duties within… N7J9297 PDs state the employee “serves as the technical advisor and subject matter expert on all aspects of MEC related operations including clearance operations. Support Field Office personnel in execution of clearance operations. Oversees and/or performs surveillance and quality assurance of MEC work to ensure compliance and adequacy of in-place work in accordance with the contract documents.”
The statutory authority for the payment of a hazardous pay differential is found in section 5545, of title 5, United States Code (U.S.C.), which provides:
(d) The Office shall establish a schedule or schedules of pay differentials for duty involving unusual physical hardship or hazard, and for any hardship or hazard related to asbestos, such differentials shall be determined by applying occupational safety and health standards consistent with the permissible exposure limit promulgated by the Secretary of Labor under the Occupational Safety and Health Act of 1970. Under such regulations as the Office may prescribe, and for such minimum periods as it determines appropriate, an employee to whom chapter 51 and subchapter III of chapter 53 of this title applies is entitled to be paid the appropriate differential for any period in which he is subjected to physical hardship or hazard not usually involved in carrying out the duties of his position. However, the pay differential—
(1) does not apply to an employee in a position the classification of which take into account the degree of physical hardship or hazard involved in the performance of the duties thereof, except in such circumstances as the Office may by regulation prescribe; and
(2) may not exceed an amount equal to 25 percent of the rate of basic pay applicable to the employee.
The implementing regulations for this provision found in 5 CFR 550.904, provide in relevant part:
(a) An agency shall pay the hazard pay differential listed in appendix A of this subpart to an employee who is assigned to and performs any duty specified in appendix A of this subpart. However, hazard pay differential may not be paid to an employee when the hazardous duty or physical hardship has been taken into account in the classification of his or her position, without regard to whether the hazardous duty or physical hardship is grade controlling, unless payment of a differential has been approved under paragraph (b) of this section.
(b) The head of an agency may approve payment of a hazard pay differential when—
(1) The actual circumstances of the specific hazard or physical hardship have changed from that taken into account and described in the position description; and
(2) Using the knowledge, skills, and abilities that are described in the position description, the employee cannot control the hazard or physical hardship; thus, the risk is not reduced to a less than significant level.
(c) For the purpose of this section, the phrase “has been taken into account in the classification of his or her position” means that the duty constitutes an element considered in establishing the grade of the position – i.e., the knowledge, skills, and abilities required to perform that duty are considered in the classification of the position.
The HPD authorized in 5 CFR 550.904 may only be paid for the specific hazardous duties listed in appendix A of 5 CFR part 550, subpart I (appendix A) but is prohibited when the hazardous duty or physical hardship has been taken into account in the classification of the employee’s position. In his request to OPM, the claimant does not describe or provide documentation to support which hazardous duties listed in appendix A he actually performed or the frequency with which he encountered the hazardous condition during quality assurance inspections on which his claim is based. However, based on the record it is reasonable to conclude he refers to the type of work established in appendix A, namely, “Exposure to Hazardous Agents, work with or in close proximity to: (1) Explosive or incendiary materials. Explosive and or incendiary materials which are unstable and highly sensitive.” However, the agency asserts that exposure to explosives such as Munitions and Explosive Concerns (MEC) and Unexploded Ordinance (UXO) were factored into the original classification of the position.
In accordance with 5 CFR 550.904(c), a hazardous duty is taken into account in the classification of a position when the duty constitutes an element considered in establishing the grade of the position, i.e., the knowledge, skills, and abilities required of the incumbent of the position. The record shows hazardous duties were recognized in the classification of the claimant’s position. For example, the evaluation statement for the claimant’s PD of record during the claim period, states under Factor 1, Knowledge Required by the Position, the incumbent of the position must have “Knowledge of munitions functions (electricity, physics, military fuses, and explosives effects), MEC, and MPPEH [Munitions Potentially Presenting an Explosive Hazard] necessary to perform MEC clearance activities; knowledge in identifying munitions (surface munitions, air ordnance, chemical munitions, pyrotechnic and underwater munitions requires to determine proper disposal procedure when MEC is uncovered during clearance or construction activities).”
Also, Factor 1, Knowledge required by the position, describes knowledges needed to safely perform the work of the position including “knowledge of policies and procedures in safely performing operation of MEC detection equipment; location and identification of munitions by category and group; designing and constructing firing systems (both electric and non-electric); design, construct and detonate a demolition explosive.” Further, the evaluation statement for Factor 9, Work Environment, shows safety precautions are in place for the hazardous duties performed by the incumbent of the position. It states, “[w]ork involves moderate to high risk which require safety precautions,” and the incumbent is “[r]equired to wear standard personal protective equipment (PPE), e.g., hard hat, safety shoes, eye protection, hearing protection, reflective vests, etc. common to construction sites and may be require to don [sic] protective clothing in special circumstances.” The claimant does not address the agency’s assertion that exposure to explosives such as MEC and UXO were factored into the classification of the position. Since hazardous duties were considered in the classification of the claimant’s position, under 5 CFR 550.904(a), a hazardous pay differential is not warranted. Thus, the claimant’s claim for back pay for HPD is denied.
Additionally, the agency submits copies of the claimant’s electronic certified timesheets (i.e., “SLDCADA Electronic Certified Employees” timesheets) covering the period of the claim to show the claimant “provided no objective evidence, dates or field logs to substantiate his claim for… hours worked in hazardous conditions.” Section 550.905(a) of 5 CFR authorizes HPD only for those hours in a pay status during a day on which the employee is actually performing the hazardous duty. Thus, even assuming, arguendo, the claimant was qualified to receive HPD, we have no basis to determine what amount would be payable.
Alternatively, 5 CFR 550.904(b) provides that “[t]he head of an agency may approve payment of a hazard pay differential” even though the hazardous duty was taken into account in the classification of a position if the two described conditions are met (italics added). However, the word “may” in the regulation denotes a permissive term. The plain language in the regulation makes clear that the decision to approve payment of a hazardous pay differential under this section is delegated to, and at the discretion of, the employing agency. Under statutes that vest a degree of discretion in administrative agencies, our review is generally confined to deciding whether an agency’s action must be viewed as arbitrary, capricious, or so at variance with the established facts as to render its conclusion unreasonable. The claimant states the “employee cannot use their skills or training to avoid and/or mitigate the hazard of being hurt or injured during UXO recovery operations being performed by said contractor” but does not address or provide any information to establish that the conditions of 5 CFR 550.904(b)(1) and (2) were met. The agency asserts that potential exposure to explosives such as MEC and UXO were factored into the original classification of the positions and “there is insufficient objective evidence to demonstrate that the knowledge, skills and abilities described in the PD are insufficient in mitigating potential risk.” OPM will accept the facts asserted by the agency, absent clear and convincing evidence to the contrary (5 CFR 178.105). Further, 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). In this case, the claimant has failed to do so. Since an agency decision made in accordance with established regulations and its discretionary authority 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, the claim for back pay for HPD is denied.
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.
[1] Standard Form (SF) 50 contained in the record shows effective August 30, 2020, the claimant was appointed to the position of Administrative/Technical Specialist, NT-0017-04 with the Naval Surface Warfare Center in Panama City, Florida.
[2] In his original request to OPM, the claimant requested back pay for HPD retroactive to October 31, 2016, in connection with this and a previously held bargaining unit position with Navy in Marianas, Guam. However, in a subsequent email to OPM dated November 5, 2020, he claimed back pay for HPD only in connection to his position with JRM during the stated period.