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OPM Contact: Melissa Drummond
The claimant, a former employee of the [agency], asserts that he
is entitled to compensation for after hours and weekend work. The
claimant was employed by the [agency] from xxxx to xxxx. The
claimant is requesting compensatory time off for the period of xxxx
through xxxx and that he be compensated at a 25% base salary
premium for overtime work for the entire period in question. For
the reasons discussed herein, the claim is denied.
We will first address the request for compensatory time off for
the period of xxxx through xxxx. According to CFR 178.105, the
burden is on the claimant to establish the timeliness of a claim.
Although the claimant provided documentation to show that he
requested compensatory time off on September 7, 1993 for the period
from March 12, 1990 through April 10, 1991, the period was not
preserved by the claimant in the timely submission of a formal
claim to either his agency nor to OPM. Rather, his formal claim was
submitted to OPM on February 8, 1999. This does not meet the 6-year
statue of limitations contained in 31 U.S.C. 3702(b), and further
stipulated in CFR 178.104.
In addition, the agency reports and the record reflects that the
claimant was exempt from the Fair Labor Standards Act during the
xxxx through xxxx period. Agency instructions state that procedures
for requesting overtime or compensatory time off must be officially
ordered or approved in advance. The agency reports that its search
of the claimants time and attendance records did not produce any
official approvals of overtime or overtime requests from the
claimant. Claims are settled on the written record and the claimant
has the burden of proving that he or she actually worked overtime
that was officially ordered or approved, or actively induced, by an
agency official with authority to order or approve overtime work.
Matter of Jim L. Hudson, supra. Based on our review of the
record, we conclude that the claimant has not established that the
overtime hours for xxxx through xxxx were ordered or approved
consistent with the agencys regulations for doing so. Accordingly,
this part of the claim for compensatory time off is denied.
In response to the 25% base salary request for annual premium
pay for regularly scheduled standby duty, we must determine whether
the claimant performed standby duty and earned hours of work. The
provision governing this issue, 5 CFR 550.112, provides as
Information from both the agency and the appellant states that
the claimant was provided a beeper by the hospital. He, therefore,
meets situation l. (Unfortunately, we are not able to speak to the
inadequacies of the beeper, as expressed by the claimant.) As such,
his after hours and weekend work is considered off duty. His time
spent in an on-call status is not considered hours of work nor does
it meet the definition of standby work. For example, the claimant
states that the call-back time was always fifteen minutes whereas
the agency stipulates that the call-back time was two hours, except
in emergencies that required a shorter response time. Although
there appears to be an irreconcilable factual dispute as to the
length of the call-back time, it does not negate the fact that the
claimant was still not limited to the immediate premises, as is
typical of standby work.
Based on the on-call status of the work, the claimant is not
authorized annual premium pay at 25% because he was not on standby
duty. According to CFR 550.141,
an agency may pay premium pay on an annual basis
(not in excess of 25 percent) . . . . to an employee in a position
requiring him or her regularly to remain at, or within the confines
of, his or her station during longer than ordinary periods of duty,
a substantial part of which consists of remaining in a standby
status rather than performing work.
Further guidance is found in 550.143(a)(1), which states that
the requirement for the type of position referred to in 550.141 --
that an employee regularly remain at, or within the confines of,
his station -- must meet all three conditions, including:
Since the claimant does not meet this first requirement, premium
pay under 550.141 is not applicable.
In addition, while in an on-call status, call-back time is
considered irregular and occasional overtime and may be paid with
compensatory time off at the employees request. This is covered by
agency instruction 550-1-60(B) that says
because call-back work is irregular/occasional
overtime work, compensatory time off may be substituted for pay at
the employees request (see 37 Comp. Gen. 1). See also
According to the claimant, he began receiving compensatory time
off in xxxx. We, therefore, conclude that he has been appropriately
compensated for his after hours and weekend work.
The Office of Personnel Management (OPM) does not conduct
investigations or adversary hearings in adjudicating claims, but
relies on the written record presented by the parties. See
Frank A. Barone, B-229439, May 25, 1988. 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, as cited in
Philip M. Brey, supra.
This settlement is final. No further administrative review is
available within OPM. Nothing in this settlement limits the
employee's right to bring an action in an appropriate United States