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Pay & Leave Claim Decisions

Washington, DC

U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code

Marcy Jullian
Wildlife Inspector
GS-1801-11
Region 1
Office of Law Enforcement
U.S. Fish and Wildlife Service
U.S. Department of the Interior
Redmond, Washington
Due compensation for travel outside normal duty hours
Denied
F-1801-11-03

Robert D. Hendler
Classification and Pay Claims
Program Manager
Merit System Audit and Compliance

08/14/2012


Date

As provided in section 551.708 of title 5, Code of Federal Regulations (CFR), this decision is binding on all administrative, certifying, payroll, disbursing, and accounting officials of agencies for which the U.S. Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA).  The agency should identify all similarly situated current and, to the extent possible, former employees, and ensure that they are treated in a manner consistent with this decision.  There is no right of further administrative appeal.  This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708 (address provided in 5 CFR 551.710).  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.

Introduction

The claimant seeks “paid overtime for mandatory travel for training” for “return travel on a regular work day (Friday) over eight (8) hours.”  Specifically, the claimant seeks 6.5 hours of paid overtime for return travel on June 18, 2010, from a training course.  During the claim period, she was employed as a Wildlife Inspector, GS-1801-11, with the U.S. Fish and Wildlife Service (FWS), U.S. Department of the Interior.  The claimant does not question her agency’s FLSA exemption status determination that she is FLSA nonexempt.  We have accepted and decided this claim under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).

We received the claim on August 19, 2011, and the agency administrative report on October 25, 2011.  In reaching our decision, we have carefully reviewed all the material of record, including information furnished by the claimant and her agency.

Nature of Claim

The agency states the claimant was placed on a training administrative work week for the week of June 13-18, 2010.[1]  Her work schedule was 8:00 a.m.-5:00 p.m., with a one-hour lunch period.  On Friday, June 18, 2010, the claimant was in training from 8:00 a.m.-12:00 p.m., was given a lunch break from 12:00-1:00 p.m., and departed the training site at 2:00 p.m. enroute to the airport.  She traveled during her remaining regular duty hours until 5:00 p.m. (EST) and ended travel at 8:30 p.m. (PST).  The claimant's representative asserts the claimant is entitled to paid overtime for the 6.5 hours at issue because:  “[a]s a non-exempt employee under FLSA, paid overtime is compensable when she works over eight hours on a regular day.”[2]  In contrast, the agency asserts these hours may not be treated as paid overtime under the FLSA, but must be compensated as compensatory time off for travel.

Claim Period

Section 551.702 of title 5, Code of Federal Regulations (CFR), provides that all FLSA claims filed after June 30, 1994, are subject to a two-year statute of limitations (three years for willful violations).  A claimant must submit a written claim to either the employing agency or to OPM in order to preserve the claim period.  The date the agency or OPM receives the claim is the date which determines the period of possible back pay entitlement.  The claimant is responsible for proving when the claim was received by the agency or OPM.  5 CFR 551.702(c).  The claimant provided a copy of a signed, written administrative grievance filed with her agency.  The grievance shows it was signed by the claimant on August 17, 2010, and signed as having been received by an authorized agency official on August 23, 2010.  Therefore, since the claim request was received by the agency on August 23, 2010, the claim period is preserved as of that date and commences on August 23, 2008, or August 23, 2007, if willful violation is attached.  Therefore, any claim for FLSA overtime pay for work performed during the claimed incidence of travel outside her normal duty hours, on June 18, 2010, is preserved for purposes of this administrative appeal.

Evaluation of Claimed Compensable Activity

Contrary to the claimant’s assertion, time in a travel status by an FLSA nonexempt employee may only be considered compensable hours of work as provided for under 5 CFR 551.422(a) and 5 CFR 550.112(g).  Section 551.422(a) states that time spent traveling is considered hours of work if an employee is required to:  (1) travel during regular working hours; (2) drive a vehicle or perform other work while traveling; (3) travel as a passenger on a one-day assignment away from the official duty station; or (4) travel as a passenger on an overnight assignment away from the official duty station during hours on nonworkdays that correspond to the employee’s regular working hours.  Section 550.112(g) states:

(g) Time in travel status. Time in travel status away from the official duty-station of an employee is deemed employment only when:

(1) It is within his regularly scheduled administrative workweek, including regular overtime work; or

(2) The travel—

(i) Involves the performance of actual work while traveling;

(ii) Is incident to travel that involves the performance of work while traveling;

(iii) Is carried out under such arduous and unusual conditions that the travel is inseparable from work; 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 the employee to his or her official-duty station.

The phrase "could not be scheduled or controlled administratively" refers to the ability of an executive agency as defined in 5 U.S.C. § 105 to control the event that necessitates an employee's travel.  The control is assumed to be by the agency whether the agency has sole control or the control is achieved through a group of agencies acting in concert, such as a training program or conference sponsored by a group of agencies, or sponsored by one in the interest of all, or through several agencies participating in an activity of mutual concern.  When an institution outside the government conducts a training event, unless it is for the sole benefit of the government, it is an event that cannot be scheduled or controlled administratively.  See OPM decision number F-0201-07-01, citing B-193127, May 31, 1979; Perry L. Golden and Wayne Woods, 66 Comp. Gen. 620 (1987); and Morris Norris, 69 Comp. Gen. 17 (1989).

Using the criteria in sections 551.422(a) and 550.112(g), we conclude that the hours the claimant travelled on Friday, June 18, 2010, that correspond to her regular working hours are considered hours of work under the FLSA.  See 5 CFR 551.422(a)(1) and 5 CFR 550.112(g)(1).  Sections 551.422(a)(2)-(a)(4) are not applicable since the claimant did not drive a vehicle or perform other work while traveling, did not travel as a passenger on a one-day assignment away from the official duty station, and did not travel as a passenger on an overnight assignment away from the official duty station during hours on nonworkdays that correspond to the claimant’s regular working hours.  Sections 550.112(g)(2)(i), (ii), and (iii) are not applicable because work was not performed during this period of travel, the travel was not incident to travel that involved the performance of work while traveling, and the travel was not carried out under arduous or unusual conditions.  Section 550.112(g)(2)(iv) is not applicable with respect to the training events, because the agency sponsored them and the events fell within the administrative control of the agency.  Thus, the hours claimed on the return trip home on Friday, June 18, 2010, that extend past the claimant’s regular working hours are not considered hours of work under the FLSA based on the above criteria and may not be compensated as paid overtime under the FLSA.

Decision

Based on the preceding analysis, the claimant is not eligible to receive overtime compensation under the FLSA for travel outside her normal duty hours for June 18, 2010, and her claim is denied.

[1] The record shows the actual administrative workweek was Monday, June 14, through Friday, June 18.

[2] The claimant asserts she was informed by a management official that compensatory time off for travel (5 USC § 5550b) was intended only for Special Agents who are exempt under the FLSA.  However, compensatory time off for travel under 5 USC § 5550b is applicable to any “employee” as defined in 5 USC § 5541(2); it is not restricted to Special Agents.

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