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Office of Merit Systems Oversight and Effectiveness

Date: June 11, 2002
File Number: [02-0014]
Matter of: [Claimant]

OPM Contact: Deborah Y. McKissick

The claimant is a Manager with the [agency]. She is requesting additional back pay for overtime for the period from April 1995 through September 1997. The Office of Personnel Management (OPM) received the claim on January 30, 2002 and the agency administrative report on May 13, 2002. For the reasons discussed below, the claim is denied.

The claimant states that she decided to work beyond her regularly scheduled 8-hour workdays and on weekends. She further states that she is the only authorized person to work on weekends. The claimant provided documents from the servicing security company that show the office's opening and closing time during the claim period, and a typed list, dated December 28, 1998, that list the days and hours of overtime worked by the claimant in 1995. The record does not include official documentation showing that the overtime performed in this case was ordered and approved by authorized officials.

In response to the claim, the agency states that the claims process for suffered and permitted overtime, developed in July 1998 by the agency and the American Federation of Government Employees (AFGE) as a result of a settlement agreement, covered only certain grade levels of AFGE bargaining unit employees that work outside of the agency's offices in [city, state]. The agency further states that the settlement agreement "provided lump sum overtime payments to employees previously categorized as exempt from FLSA coverage." The agency explained that, employees who believed that they were due more than the lump sum payments, could submit claims for additional suffered and permitted overtime, with supporting evidence.

The agency states that the claimant filed a claim using the developed process. The agency believes the claimant is ineligible for the additional suffer or permit overtime payments because, as a supervisor, she was not covered by the collective bargaining agreement during the claim period. The agency states that the agency issued the claimant an additional check on September 28, 1998 for retroactive overtime payments after completing recalculations in accordance with the settlement agreement.

The agency reports that the claimant was exempt from the FLSA during the claim period. The claimant is eligible for title 5 overtime pay as a FLSA exempt employee. 5 U.S.C. § 5541(2). Therefore, she is entitled to compensation only when overtime is officially ordered or approved.

Accordingly, to be entitled to overtime pay or compensatory time in lieu of such pay, the overtime must be ordered or approved by an authorized official. OPM Decision #S004070 (January 19, 2000); United States Information Agency - Compensatory Time, B-251636 (June 11, 1993); Richard R. Bourbeau, B-238987 (September 7, 1990), affirmed, 71 Comp. Gen. 432 (1992); 68 Comp. Gen. 385 (1989); John W. Wright, B-236750 (November 7, 1989); Jim L. Hudson, B-182180 (January 6, 1982); Donald W. Plaskett, B-183916 (March 8, 1976); Garrett F. Masco, B-179908 (December 20, 1973). Mere knowledge that an employee is working beyond his normal duty hours, without active inducement of the employee to perform the additional work, is not enough to support payment in the absence of an official order or approval for overtime to be performed. John W. Wright, supra.; 68 Comp. Gen. 385 (1989); Jim L. Hudson, supra.; Donald W. Plaskett, supra.; Garrett F. Masco, supra. Indeed, it is not sufficient that an employing agency tacitly expected that overtime work be performed. Jim L. Hudson, supra.

According to 5 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. 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. We are required to settle claims only in accordance with the applicable laws and regulations, and we cannot waiver or modify their provisions in individual cases. Based on our review of the record, the record does not include any documentation that the additional hours worked by the claimant were officially ordered or approved, or actively induced, by agency officials with authority to order or approve overtime. Accordingly, the claim is denied.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.

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