Washington, DC

U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code

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Kimberly A. Steide, DPA
Principal Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance


01/27/2025

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Date

The claimant was employed as a Supervisory Loan Specialist, GS-1165-15, with the Office of the Chairman, Office of the Chief Financial Officer, Office of Authorized Finance, Asset Management Division, Export-Import (EXIM) Bank of the United States in Washington, DC. He requests back pay for a Washington DC locality pay rate in the amount of $3,427.20, for the period of March 26, 2023, to October 7, 2023. The claimant also asserts the issue is an ongoing matter, therefore the amount continues to increase. However, information provided by the agency indicates the claimant’s last day as an EXIM employee was on October 7, 2023. The U.S. Office of Personnel Management (OPM) received the claim on November 29, 2023, and the agency administrative report (AAR) on March 18, 2024. For the reasons discussed herein, the claim is denied.

In October 2020 the claimant began employment with EXIM Bank with official worksite (duty station) in Washington, DC and telework worksite from his residence in Wilmington, Delaware. Due to the Coronavirus Disease (COVID- 19) pandemic the claimant was authorized to work remotely from his residence in Wilmington, Delaware without a change in locality pay. On February 27, 2022, the claimant began serving on a series of detail assignments also working remotely from his home in Delaware.[1] On November 18, 2022, the claimant requested to “permanently work remotely on a full-time basis” as part of a reasonable accommodation (RA) request due to a health condition. On March 9, 2023, the agency approved the RA for “full time telework” for six months after which time it would reassess his telework status based on working conditions and doctor recommendation. The agency also determined that a change in duty station from Washington DC to the geographic location of his home in Delaware was appropriate. Therefore, effective March 26, 2023, the claimant’s duty station was changed to New Castle County, Delaware.

The claimant states the agency has “unlawfully reduced” his pay and has not complied with the regulations for determining his official worksite. He asserts that his situation meets two of the temporary circumstances listed in section 531.605(d)(2) of title 5, Code of Federal Regulations (CFR) where a change in duty station is not required. Specifically, he states the conditions in 5 CFR 531.605(d)(2)(i) for an employee recovering from an injury or medical condition and in 5 CFR 531.605(d)(2)(v) for an employee temporarily detailed to work at a location other than a location covered by a telework agreement apply to his situation. In an email dated March 24, 2023, the agency responded to the claimant’s assertion as follows:

This situation does not appear to meet OPM’s criteria for temporary fulltime telework for injury or medical condition exception. Per the highlighted parts, EXIM needs to have an expectation that either 1) you will stop teleworking and return to work at the regular worksite in the near future or 2) that you will continue teleworking but will report to the regular worksite at least twice each biweekly pay period on a regular and recurring basis in the near future. The reasonable accommodation you have been given specifically states that the agency will reassess your fulltime telework status as we approach the conclusion of 6 months based on office conditions and doctor recommendation. Therefore, we cannot form an expectation at this time that you will either stop teleworking in the near future or that you will report to the regular worksite at least twice each biweekly pay period on a regular and recurring basis in the near future. If at the conclusion of six months of your accommodation, it is determined that you will either stop teleworking fulltime and return to the official worksite or that you will report to the regular worksite at least twice each biweekly pay period on a regular and recurring basis than the locality pay will be changed accordingly.

Under 5 CFR 531.604(b) an agency determines an employee’s locality pay rate by determining the employee’s official worksite consistent with the rules in 5 CFR 531.605, which states, in relevant part, that:

(a)(1) Except as otherwise provided in this section, the official worksite is the location of an employee’s position of record where the employee regularly performs his or her duties.

(3) An agency must document an employee's official worksite on an employee's Notification of Personnel Action (Standard Form 50 or equivalent).

Under 5 CFR 531.605(d), for an employee covered by a telework agreement, the following rules apply:

(1) If an employee scheduled to work at least twice each biweekly pay period on a regular and recurring basis at the regular worksite for the employee’s position of record, the regular worksite (where the employees work activities are based) is the employee’s official worksite.

(2) An authorized agency official may [emphasis added] make an exception to the twice-in-a-pay period standard in paragraph (d)(1) of this section in appropriate situations of a temporary nature, in part as follows:

(i) An employee is recovering from an injury or medical condition;

(v) An employee is temporarily detailed to work at a location other than a location covered by a telework agreement.

The claims jurisdiction of OPM under section 3702(a)(2) of title 5, United States Code (U.S.C.), is limited to consideration of statutory and regulatory liability in determining if monies are owed for the stated compensation or leave claims. OPM’s authority under 31 U.S.C. 3702(a)(2) does not extend to determining the claimant’s official worksite. Rather, under 5 CFR 531.604(b)(1), an agency determines an employee’s locality pay rate by determining the employee’s official worksite consistent with the rules in 5 CFR 531.605. The regulatory language is permissive and gives the employing agency authority in determining an employee’s official worksite, thus the agency’s action will not be questioned unless it is determined that the agency’s action was arbitrary, capricious, or unreasonable. See OPM File Number 13-0003 dated October 17, 2013.

The agency determined the change to the claimant’s duty station was made to “accurately reflect his actual duty station of Wilmington, Delaware, where he had been working remotely since onboarding with EXIM.” In addition, in its AAR the agency explains that during each of the claimant’s detail assignments he also worked remotely from his home in Delaware and was not required to comply with the agency’s telework requirement of reporting to work in Washington, DC twice each biweekly pay period. Finally, the agency determined the change in duty station and consequently in locality pay was appropriate since the claimant would be “teleworking full time” from his residence in Wilmington, Delaware for 6 months. Furthermore, as it relates to the exceptions in 5 CFR 531.605(d)(2) the use of the discretionary term “may” as opposed to the mandatory term “shall” indicates that the agency is given the authority to exercise its discretion under this section. In this case the agency determined the exceptions to the twice-in-a-pay-period standard established in 5 CFR 531.605(d)(1) were inapplicable to the claimant’s situation because it could not form an expectation that he would either stop teleworking full-time or report to the regular worksite (Washington, DC) at least twice each biweekly pay period on a regular and recurring basis in the near future. As required by 5 CFR 531.605(a)(3), the agency documented the claimant’s official worksite on his Standard Form 50 (“Duty Station” block 39) as New Castle County, Delaware, which corresponds to the Philadelphia-Reading-Camden locality pay area (See 5 CFR 531.603).

The record is clear that the claimant regularly performed his duties from his home in Delaware. Therefore, in accordance with 5 CFR 531.605(a)(1), the designation of his home in Delaware as his official worksite for purposes of determining his locality pay rate cannot be considered arbitrary, capricious, or unreasonable, and there is no basis upon which to reverse the agency’s decision. Consequently, the claimant’s request for locality pay in the amount of $3,427.20 ($244.80 per pay period) for the period of March 26, 2023, to October 7, 2023, based on a Washington, DC duty station is denied. 

The claimant also asserts the agency applied the policy [unidentified] inequitably because it did not change the “locality of others who have been on an RA for a longer period of time than six months who do not reside in the DC locality….” However, as noted above, the claims jurisdiction of OPM under section 3702(a)(2) of title 5, U.S.C. is limited to consideration of statutory and regulatory liability in determining if monies are owed for the stated compensation or leave claims. OPM has no authority to review an agency’s RA policies or authorize payment based solely on consideration of equity. Therefore, the claimant’s assertion that the agency applied the policy inequitably has neither merit nor applicability to our claim settlement determination.

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] The record shows the claimant continued to work on detail assignments until October 7, 2023. The agency states the claimant was permitted to remain in a temporary remote work status throughout this time and during the agency’s post-pandemic transition period in December 2022 when employees were asked to resume telework schedules to include at least two days of in person work in Washington, DC.

 

 

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