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Office of Merit Systems Oversight and Effectiveness

Date: May 7, 2002
File Number: [02-0010]
Matter of: [Claimant]

OPM Contact: Deborah Y. McKissick

The claimant was employed with the [agency] as a [position] from March 2, 1997 until he retired on March 31, 2000. The position was located at the [company]. The claimant is requesting back pay for hazard pay differential for the period March 1, 1997 through March 31, 2000. The Office of Personnel Management (OPM) received the compensation claim on January 29, 2002, and the agency administrative report on April 16, 2002. On January 29, 2002, OPM also received a letter on behalf of the claimant from [Congressman] dated November 20, 2001. For the reasons discussed herein, the claim is denied.

The agency handled the claimant's initial request in March 2000 as a back pay claim. The agency reviewed [Logs] and [Sheets] to verify the number of days in which the claimant entered any of the load rooms determined to warrant hazardous pay differential to conduct official business during the period of March 1, 1997 through March 31, 2000. As a result of the agency's review, it determined that the claimant had entered one of the load room buildings a total of 163 workdays during the claim period and was, therefore, entitled to $8,080.70 of hazard pay differential in addition to back interest. The claimant disagrees with his agency's decision.

The claimant believes the agency, in determining his time performing hazardous duties, should have included information from other documents (i.e., Time and Attendance/Labor Exception Logs, records on corrective actions and material deficiency reports), which tracked the employee's daily activity and performance. The claimant also believes that other buildings at the facility's loading and pressing areas and the mixing facility should be considered hazardous work areas.

The claimant referenced the Federal Personnel Manual (FPM) chapter regarding pay for hazardous duty. However, the FPM is sunsetted, and is no longer used as a guide by agencies. The claimant also referenced the situation of an Occupational Safety and Heath Administration inspector who requested and received back pay for hazard pay differential during his work at the claimant's work facility. However, OPM cannot compare the claimant's position to others as a basis for deciding this claim.

The agency explained that the Commander of the agency's site requested, on May 11, 2000, a review of the [position] work situation at the claimant's work facility in [state]. On July 10, 2000, the District Classification and Pay Program Coordinator, the District Safety and Health Specialist, the District Contract Safety Manager and a Contract Safety Specialist conducted an on-site review of the work environment at the work facility. On June 5, 2001, the Chief of the Technical Support Team and the District Safety and Health Specialist conducted a second review of the load rooms. At the conclusion of the reviews, "it was decided that the [position] assigned to [work site] are entitled to hazardous duty pay when they enter the load rooms to conduct official business while loading and pressing operations involving primary explosives (i.e., lead azide), secondary explosives and pyrotechnics are in operation." However, they determined that hazardous duty pay was not appropriate elsewhere at the work facility "since adequate safety measures and safeguards exist which reduce the potential hazard to the employees to a less than significant level of risk."

The Civilian Personnel Law Manual states,

The entitlement to hazardous duty differential is a decision vested primarily in the employing agency, and this Office will not substitute its judgment for that of agency officials unless that judgment was clearly wrong or was arbitrary and capricious. AFGE Local 2413, 67 Comp. Gen. 489 (1988). See also Samuel Pavone and Robert Wilgus, B-222948, January 9, 1987.

Section 5545 of title 5, United States Code, provides for hazard pay differentials. OPM regulations at 5 CFR 550.904 authorize the employing agency to determine whether payment of a hazard pay differential is warranted. However, section 550.904 limits payment of hazard pay differentials to the situations described in Appendix A in 5 CFR Part 550. See William A. Lewis, B-216575, March 26, 1985; Joseph C. Schrage, B-181843, November 19, 1974. The determination of whether a particular work situation warrants a hazard pay differential is vested primarily in the employing agency whose officials are in a better position to investigate and resolve such matters. Nicholas P. Davis, B-246364, April 14, 1992; Joseph C. Schrage, supra. An agency determination concerning an employee's entitlement to a hazard pay differential will not be overturned unless there is clear and convincing evidence that the decision is arbitrary and capricious. Id. This paragraph contemplates that, if these safety precautions exist, then the payment of hazard pay differential is not allowable.

The agency states that the work facility "has explicit safety procedures in place which minimize the risk of an explosion which could affect contractor and government employees." Some of the safety measures taken by the work facility include: (1) safety training on handling, storage and transportation of explosive materials; (2) limits on the quantity of explosive materials stored with the type of container holding the explosives; and (3) the use of non-propagating packaging when transporting explosive materials within the plant complex to minimize any potential hazard. The work facility safety staff found that the safety training, policies, work practices, and engineering controls in the storage and transportation of explosive materials reduce the potential risk for an explosive chain reaction within the plant complex. Their review "concluded that adequate safety measures and policies are in place in the work areas and operations outside of the load rooms, which reduces the element of hazard to a less than significant level of risk."

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. Moreover, the burden of proof is on the claimant to prove the liability of the government and his or her right to payment. 5 CFR 178.105; Matter of Jones and Short, B-205282, June 15, 1982. Thus, where the written record presents an irreconcilable dispute of fact between a government agency and an individual claimant, the factual dispute is settled in favor of the agency, absent clear and convincing evidence to the contrary. 5 CFR 178.105; Matter of Staff Sergeant Eugene K. Krampotich, B-249027, November 5, 1992; Matter of Elias S. Frey, B-208911, March 6, 1984; Matter of Charles F. Callis, B-205118, March 8, 1982. Therefore, we accept the agency's position that safety precautions are in place to reduce the element of risk to the work facility employees to less than significant level in the areas outside the load rooms and, therefore, hazardous pay differential is not warranted. The claim for hazardous duty pay 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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