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Office of Merit Systems Oversight and Effectiveness

Date: February 8, 2002
File Number: [01-0053]
Matter of: [Claimant]

OPM Contact: Deborah Y. McKissick

The claimant is a Civil Engineer, GS-0810-12, with the [agency, state]. The claimant is requesting back pay for 139.25 hours of overtime. We accepted the claim on September 7, 2001 and we received the agency's information on December 7, 2001. For the reasons discussed herein, the claim is denied.

The claimant believes he earned 65.5 overtime hours traveling to attend meetings conducted by professional or state organizations, during the period October 26, 1993 to April 13, 1998. The claimant stated that his supervisors authorized his attendance to these meetings. The claimant also believes he earned 73.75 overtime hours traveling to attend staff meetings "required" by his supervisor, during the period October 25, 1993 to December 16, 1996. The roundtrip from the claimant's location, [city #1] to headquarters in [city #2], covered approximately 300 miles in one day, 150 miles away from his supervisor. The claimant believes this constitutes extensive travel because "the travel is carried out under arduous and unusual conditions (long distances)."

The agency has designated the Fair Labor Standards Act (FLSA) status of the claimant's position as exempt (not covered by FLSA). The agency explained that [agency component] engineer positions make periodic and final inspections to determine compliance with contract documents and to train field personnel. The agency stated that the employees "have a voice in scheduling the appointments" with the agency's customers.

The agency believes the claimant should not be compensated for the 65.5 hours that he traveled outside of his administrative workweek to attend meetings conducted by professional or state organizations because attendance was voluntary. The agency references the Comptroller General's two-pronged test that established "overtime entitlement depends on both (1) the existence of an event that cannot be scheduled or controlled administratively and (2) an immediate official necessity in connection with the event requiring that travel be performed outside an employee's regular hours." The agency's denial of the claimant's claim for travel time to these meetings is based on 5 CFR 550.112(g)(2)(iv), which states time in travel is deemed employment when the travel "results from an event which could not be scheduled or controlled administratively, including travel by an employee to such an event and the return of the employee to his or her official duty station."

The agency also believes the claimant should not be compensated for the 73.75 hours that he traveled outside of his administrative workweek to attend staff meetings. The agency believes Title 5, Part 550 regulations is applicable to the claimant's situation because "[t]he scheduling of such staff meetings is under the control of [agency component], a Federal agency in the Executive Branch, and as such is not considered 'administratively uncontrollable'." The agency does not believe the claimant traveled to the staff meetings under "arduous and unusual conditions" (long distances) as declared by the claimant. The agency stated that the Comptroller General, "has held that '. . .neither the time when travel is performed, nor the amount of time spent traveling, make the conditions of travel arduous, . . .'" The agency believes that travel time is arduous when "the conditions of travel must impose a substantial burden on the traveler beyond that normally associated with travel, such as those imposed by unusually adverse terrain, severe weather conditions, and remote sites inaccessible by ordinary means."

Section 178.105 of title 5, Code of Federal Regulations states:

The burden is upon the claimant . . . .to establish the liability of the United States, and the claimant's right to payment. The settlement of claims is based upon the written record only, which will include the submissions by the claimant and the agency. OPM will accept the facts asserted by the agency, absent clear and convincing evidence to the contrary.

The statutory provision governing the issue raised in this claim, under 5 U.S.C., § 5542(b)(2), is supplemented by 5 CFR 550.112(g)(2)(iv) and provides as follows,

(2)   time spent in a travel status away from the official duty station of an employee is not hours of employment unless-

(A)   the time spent is within the days and hours of the regularly scheduled administrative workweek of the employee, including regularly scheduled overtime hours;


(B)   the travel (i) involves the performance of work while traveling, (ii) is incident to travel that involves the performance of work while traveling, (iii) is carried out under arduous conditions, or (iv) results from an event which could not be scheduled or controlled administratively, including travel by an employee to such an event and the return of such employee from such event to his or her official-duty station.

Congress has affirmatively prohibited payment for travel time unless the conditions of the statutory exception are met. See William C. Boslet, B 196195, February 2, 1981. We concur with the agency's interpretation of the law and regulation, that the claimant is not eligible for overtime for the time traveled to attend the staff meetings and the meetings conducted by professional and state organizations because his situation did not meet the criteria.

The Civilian Personnel Law Manual states that,

Absent unusual conditions, travel by automobile over hard-surfaced roads do not constitute arduous conditions under the overtime statute Dr. Saul Narotsky, B-217685, May 31, 1985. See also B-193623, July 23, 1979.

An extended period of travel without a break, such as 30 hours, does not qualify as being arduous within the meaning of 5 U.S.C. § 5542(b)(2)(B)(iii). B-168119, May 25, 1971 and B-179003, August 24, 1973.

We concur with the agency that the claimant did not travel over unusually adverse terrain or for unusual periods of time to attend meetings, training, or assist with projects

OPM does not conduct adversary hearings, but settles claims on the basis of the evidence submitted by the claimant and the written record submitted by the government agency involved in the claim. 5 CFR 178.105; Matter of John B. Tucker, B-215346, March 29, 1985. 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, March 15, 1982, as cited in Philip M. Brey, supra. We concur with the agency, that the claimant was appropriately compensated for overtime worked. He is not due compensation for the time that he traveled to the meetings, training, or to assist with projects because his circumstances do not meet the intent of "administratively uncontrollable" travel nor were they performed under "arduous conditions." The claim is denied.

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.

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