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Office of the General Counsel

Date: March 30, 1999
Matter of: [xxx]
File Number: S002348

OPM Contact: Murray M. Meeker

The claimant, a former employee with the Bureau of the Census, seeks overtime pay for work that she performed from July 6, 1998 to September 6, 1998.(1) For the reasons discussed herein, the claim is denied.

The agency reported that the claimant was appointed to an intermittent or "when actually employed" (WAE) position; that the appointment was temporary, not to exceed October 2, 1998; and that the claimant was terminated prior to the expiration of her appointment. Intermittent employees are only entitled to be paid for the time actually worked or for service actually rendered. Julia M. McCarthy, B-183813, June 20, 1975.

The agency reported further, and the claimant acknowledged, that while the claimant was authorized to establish her own work schedule with no set hours or tour of duty, she was not authorized to perform overtime. Congress has expressly mandated that overtime must be "ordered or approved" by an authorized agency official. 5 U.S.C. 5542(a). It is not sufficient that an employing agency have knowledge concerning an employee's performance of overtime. Jim L. Hudson, B-182180, Jan. 6, 1982. Indeed, it is not sufficient that an employing agency have tacitly expected that overtime work be performed. Jim L. Hudson, supra. Not having been ordered or approved, the former employee's claim for overtime must be denied. See, e.g., 71 Comp. Gen. 30 (1991).

This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.

1. In addition to her own claim, the former employee submitted claims on behalf of two former co-workers. However, these claims have not been reviewed because they were not submitted in compliance with the Office of Personnel Management's regulations which require that claims filed by a representative must be accompanied by a duly executed power of attorney or other documentary evidence of the representative's right to act on behalf of the other claimant(s). 5 C.F.R. 178.103.

Control Panel