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Office of the General Counsel

Matter of: [xxx]
Date: March 22, 2000
File Number: S001508

OPM Contact: Jo-Ann Chabot

This is a claim for overtime pay computed on the basis of a 40-hour workweek, rather than an 80-hour pay period, as well as for night differential, and interest. The claim is allowed in part and remanded to the agency in part for the reasons stated below.

The claimant, an exempt employee, initially filed this claim with his employing agency after the agency assigned him to work temporarily on a cyclical schedule. He contended that the agency owed him overtime pay for the hours he had worked in excess of a 40-hour workweek. The agency, however, determined it should compensate the claimant for the hours he had worked in excess of an 80-hour pay period rather than a 40-hour workweek. In reaching this conclusion, the agency suggested that the claimant had worked on a compressed schedule with a work requirement of at least 80 hours per pay period.

The claimant also claimed that the agency should have paid him overtime pay rather than compensatory time and that it should pay him night differential. The agency noted that it had improperly compensated the claimant with compensatory time for working 67.5 hours of regularly scheduled overtime, but the claimant already had used 47.5 hours of this compensatory time. The agency thus proposed to pay the claimant for the 20 hours of compensatory time that he had not used and to give him the difference between the overtime and 47.5 hours of compensatory time that he already had taken. Finally, the agency determined that it should pay the claimant for 70.5 hours of night differential.

The agency included in its report to the Office of Personnel Management (OPM) a cyclical schedule of five 14-day pay periods that employees such as the claimant worked. According to the schedule, the pay periods began on Sunday, continued through the next weekend, and ended on the following Saturday. The first pay period included 90 hours of scheduled work, a flexible four-hour training period, and three days off. The second pay period included 89 hours of work, a flexible four-hour training period, and five days off. The third pay period included 58 hours of work, a flexible four-hour training period, and seven days off. The fourth pay period included 108 hours of work and two days off. The final pay period in the cycle included 39 hours of work, a flexible four-hour training period, and ten days off. Following the fifth pay period, the cycle repeated itself from the beginning.

The agency reported that it established this schedule to conform to an 80-hour pay period. The agency noted that employees received compensatory time during pay periods when they worked for more than 80 hours. The agency also noted that employees used the compensatory time to contribute to an 80-hour total during pay periods when they worked for less than 80 hours. Thus, the agency reported that, at the end of the five pay periods, the hours worked averaged 80 per pay period. The agency reported further that hours worked beyond 80 were considered overtime when they were not used to meet the basic work requirement for the next pay period, or when they exceeded an employee's scheduled shift.

The agency noted that this rotating cycle represented a flexible work schedule that incorporated aspects of both the variable week schedule and the maxiflex schedule described in Appendix B to OPM's Handbook on Alternative Work Schedules. The agency suggested in this regard that the hours of compensatory time that employees earned actually were credit hours. The agency reported in addition that employees did not receive special rates of pay other than standard premium pay (night differential, Sunday pay, and holiday pay). Finally, the agency reported that it established this schedule because it needed employees on duty 24 hours a day and seven days a week to carry out some of its functions.

The agency and the claimant agree that the claimant was entitled to overtime, but they disagree on the basis for computing the overtime that the claimant worked. With regard to this matter, the evidence of record reflects that, contrary to the agency's belief, the claimant did not work on a compressed schedule or on a flexible schedule. It also reflects that the hours he worked in excess of 40 hours per week were not credit hours.

Section 6101 of title 5, United States Code, requires agencies to establish a basic workweek of 40 hours of work performed within a period of not more than six of any seven consecutive days. Section 6122 authorizing agencies to use flexible schedules and section 6127 authorizing agencies to use compressed schedules are exceptions to this requirement. Section 6121(3) specifies that for employees working on flexible and compressed work schedules, the basic work requirement consists of the number of hours, excluding overtime, which the employee must work or account for through leave or otherwise. Under 5 U.S.C. 6121(5), the term "compressed schedule" means an 80-hour biweekly basic work requirement, which is scheduled for less than 10 workdays. The cyclical schedule that the agency describes does not meet the statutory requirements for a compressed schedule because the basic work requirement for one biweekly pay period is ten days and the basic work requirement for another pay period is eleven days. The claimant's schedule shows that he also worked ten or eleven days during some pay periods. Accordingly, the claimant did not work on a compressed schedule.

According to 5 U.S.C. 6122, an agency may establish programs that allow the use of flexible schedules. Section 6122 specifies that flexible schedules must include designated hours and days during which an employee must be present for work, as well as designated hours during which an employee may choose the time of his arrival at and departure from work, solely for such purpose. Section 6122 also specifies that an employee may make this choice to accumulate credit hours for the purpose of reducing the length of the workweek or another workday. According to 5 U.S.C. 6121, the term "credit hours" means any hours within flexible schedules, established according to section 6122, that exceed an employee's basic work requirement and that the employee chooses to work for the purpose of varying the length of a workweek or workday. Section 6121 also specifies that overtime hours, when used with respect to flexible schedules under sections 6122 through 6126 means all hours exceeding eight hours in a day or 40 hours in a week that are officially ordered in advance, but does not include credit hours.

In addition to the general cyclical schedule, the agency also provided schedules specifically describing the times when the agency expected the claimant to report to and depart from work. These schedules do not include flexible time bands enabling the claimant to choose within such bands the times of his arrival at and departure from work. Accordingly, the claimant did not work on a flexible schedule. Moreover, the claimant worked according to an agency-generated schedule that included work in excess of 40 hours per week. The claimant did not have the option of choosing or declining to work the extra hours. Thus, the hours that the claimant worked in excess of 40 hours per week do not fulfill the statutory definition of credit hours.

As noted above, the basic workweek consists of 40 hours of work performed within a period of not more than six of any seven consecutive days. See 5 CFR 610.102, 610.111. The claimant, a full-time employee, was not working on a compressed schedule or a flexible schedule. Therefore, the agency must apply the basic workweek described in 5 U.S.C. 6101 in computing the hours of overtime that the claimant worked. In view of this, the claim for overtime pay based on a 40-hour workweek rather than on an 80-hour pay period is allowed.

The Back Pay Act, 5 U.S.C. 5596, applies to circumstances where an appropriate authority finds that an employee was affected by an unjustified or unwarranted personnel action and that the personnel action resulted in the withdrawal or reduction of all or part of the employee's pay, allowances or differentials. Section 5596(b)(1)(A)(i) specifies that, on correction of the personnel action, an employee is entitled to receive for the period that the personnel action was in effect an amount equal to all or any part of the pay, allowances, or differentials which he normally would have earned or received during the period if the personnel action had not occurred.(1) The claimant, a full-time employee, would have worked and received payment for the basic 40-hour workweek if the agency had not established a schedule that did not fulfill the statutory definitions of a compressed schedule or a flexible schedule.

An employee appointed to a full-time position is entitled to be paid for a 40-hour week. 5 U.S.C.  6101. As noted above, an exception to this rule exists for employees on flexible of compressed work schedules. Because we have determined that the schedules here do not fall within that exception, the agency may not pay the employee for less than 40 hours of regular pay each week. For this reason, the agency may not apply compensatory time earned in a previous workweek or pay period to work weeks in which it scheduled the employee to work for less than 40 hours. It is not clear from the record whether that is what happened in this case. If so, the agency should adjust the employee's pay accordingly.

Although it is clear from the record that the agency agreed that the claimant was entitled to night differential, the claimant believes that the agency miscalculated the total hours of night work that he performed. The claimant states in this regard that, although he performed 615 hours of night work, he received night differential pay only for 503.5 hours of night work. This disagreement does not concern the claimant's entitlement to night differential, but centers on the agency's calculation of the hours of night work that the claimant actually performed. Therefore, the agency should review its calculations as well as the claimant's time and attendance records to determine whether it erred in its original calculation.

Finally, the claimant believes that he is entitled to interest on the back pay that he is owed for overtime and night differential. The Back Pay Act, at 5 U.S.C. 5596(b)(2)(A) provides for interest to be paid on back pay payable under section 5596(b)(1)(A)(i). According to this provision, the claimant is entitled to receive interest for the overtime, and the night differential pay if any, for which he has not yet been paid. Therefore, this part of the claim is allowed.

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.

1OPM regulations, at 5 CFR 550.803, specify that the term "pay, allowances, and differentials" means monetary and employment benefits to which an employee is entitled by statute or regulation by virtue of the performance of a federal function. Section 550.803 also specifies that the term "unjustified or unwarranted personnel action" includes personnel actions and pay actions, alone or in combination.

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