Human Resources and Security Specialists should use this tool to determine the correct investigation level for any covered position within the U.S. Federal Government.
OPM Contact: Melissa A. Drummond
The claimant is employed at the [agency]. He asserts that he is
entitled to compensation for 1858.25 hours, worked as overtime for
the period from June 14, 1994 through February 23, 1998 as an
Engineer. The claimant also states that he was expected to be in an
on-call status while he was in the position. For the reasons
discussed herein, the claim is denied.
The claimant stated that he was on duty whenever his immediate
supervisor was away. He further states that he was required to
respond within minutes of being called regarding any emergency or
disaster and was restricted from traveling outside of his
community. He stipulates that he was in constant communications
with base officials via a two-way high frequency portable radio
system. He states that he was restricted so close to the base that
he could not use his time effectively for his own purposes. When he
was away from the base, he was generally required to be at home for
calls, thereby substantially limiting his activities.
The agency reports that the claimant was exempt from the Fair
Labor Standards Act during the claim period and, as such, is
entitled to compensation only when overtime is officially ordered
or approved. 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. The agency
denied the claim because the claimant failed to show that the
overtime claimed was officially ordered or approved.
According to CFR 178.105, 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.
Only that overtime which has been officially ordered or approved in
writing or induced by an official having authority to order or
approve overtime work is compensable overtime. See 59 Comp. Gen.
246, B-195155, February 7, 1980; Joan J. Shapira, B-188023, July 1,
1977. Based on our review of the record, we conclude that the
claimant has not established that the overtime hours were ordered
or approved consistent with the provisions of Title 5, Section
5542, as requested by the agency.
We also reviewed the claim to determine whether the claimant
performed standby duty and earned hours of work. The provision
governing this issue, 5 CFR 550.112, provides as follows:
Information from the appellant states that the claimant was
provided an emergency radio by his supervisor. He, therefore, meets
situation l. As such, his after hours work is considered off duty.
His time spent in an on-call status is not considered hours of work
because the claimant was in constant communication with base
officials via a two-way high frequency portable radio system.
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