Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Defense Commissary Agency
Fort Lee, Virginia
Robert D. Hendler
Classification and Pay Claim
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
08/20/2014
Date
The claimant is employed by the Defense Commissary Agency (DeCA) in the Office of the Inspector General (OIG) in Fort Lee, Virginia. In her January 16, 2014, letter received by the U.S. Office of Personnel Management (OPM) on January 28, 2014, the claimant seeks 27 hours of overtime pay in connection with hours worked while attending a mandatory training course. We received the agency administrative report (AAR) on March 25, 2014, and the claimant’s response to the AAR on April 3, 2014. For the reasons discussed herein, the claim is denied.
The claimant began her employment with DeCA on May 23, 2011. As a condition of her employment, she was instructed to report to the U.S. Army Inspector General School at Fort Belvoir, Virginia, from July 11 to July 29, 2011, to complete a training course. This training course is intended to provide instruction on the fundamental concepts, techniques, and issues relating to the IG system. The claimant states that the requested overtime pay is for time spent on daily preparation for the course, testing review, and homework assignments. She asserts that the requirements to complete daily assignments for the course were done at her home after finishing a regular eight-hour training day. The claimant requests one and a half hours of overtime pay for each day of training except for the last day.
The claimant refers to several Federal laws and regulations under which she believes she is entitled to overtime pay. Amongst them are sections 551.423 and 551.501(a)(4) and (c) of title 5, Code of Federal Regulations (CFR). However, the claimant’s assertion that she is entitled to overtime pay under these regulations is misplaced as these regulations pertain to pay administration under the Fair Labor Standards Act (FLSA). The claimant’s Investigator, GS-1810-12, position was designated as FLSA exempt by the agency and the claimant does not dispute the agency’s FLSA exemption status determination. As an FLSA exempt employee, the claimant is not eligible for FLSA overtime pay but is eligible for title 5 premium pay. Therefore, the claim must be decided as a title 5 compensation claim, and not as an FLSA claim. See § 5541(2) of title 5, United States Code (U.S.C.).
The agency disallowed the claimant’s overtime claim under 5 U.S.C. § 4109(a)(1) and 5 CFR 410.402. Section 4109 of 5 U.S.C., Expenses of training, reads in pertinent part
(a) The head of an agency, under the regulations prescribed under section 4118(a)(8) of this title and from appropriations or other funds available to the agency, may--
(1) Pay all or part of the pay (except overtime, holiday, or night differential pay) of an employee of the agency selected and assigned for training under this chapter, for the period of training…(emphasis added)
Section 4118 of title 5 U.S.C. authorizes OPM to “prescribe regulations containing the principles, standards, and related requirements for the programs, and plans thereunder, for the training of employees under this chapter...” The applicable regulation, 5 CFR 410.402, states in pertinent part:
(a) Prohibitions. Except as provided by paragraph (b) of this section, an agency may not use its funds, appropriated or otherwise available, to pay premium pay to an employee engaged in training by, in, or through, Government or non-government facilities.
The plain language of 5 U.S.C. § 4109 and 5 CFR 410.402 precludes an agency from authorizing overtime pay to an employee engaged in training, except as provided by 5 CFR 410.402(b). In her comments on the AAR, the claimant cites 5 CFR 410.402(b)(2) which authorizes premium pay for training at night “because situations that he or she must learn to handle occur only at night.” Daily preparation for the course, testing review, and homework assignments clearly do not meet this criterion.
In her response to the AAR, the claimant asserts that her request for overtime pay is covered as irregular or occasional overtime work, or what is commonly referred to as administratively uncontrollable overtime (AUO). Section 5545(c)(2) of title 5 U.S.C. authorizes premium pay on an annual basis for Federal employees who are in positions in which the hours of duty cannot be controlled administratively; in which the employee is required to perform substantial amounts of irregular, unscheduled overtime duty; and in which the employee generally is responsible for recognizing, without supervision, circumstances that require the employee to remain on duty. Work that meets these criteria for premium pay is referred to as administratively uncontrollable overtime.
Federal guidelines for implementing AUO are contained in 5 CFR 550.151-163, which authorize the use of this premium pay only for those employees "who must remain on duty not merely because it is desirable, but because of compelling reasons inherently related to continuance of [his or her] duties, and of such a nature that failure to carry on would constitute negligence." 5 CFR 550.153(c)(2). This work must be an ongoing requirement of the position. AUO is a payment generally limited to certain law enforcement-type positions. A typical example of a position warranting AUO is that of an investigator of criminal activities whose hours of duty are governed by what criminals do and when they do it. The hours on duty and place of work depend on the behavior of the criminals or suspected criminals and cannot be controlled administratively. See 5 CFR 550.153(a). Therefore, AUO cannot be used for a one-time overtime event, as the claimant appears to assert.
The claimant’s assertion that the agency “could have granted compensatory time instead of overtime for the nights and weekends worked” is incorrect. Thus, 5 U.S.C. § 4109, read in conjunction with 5 U.S.C. §§ 5542-5543, must be read as prohibiting compensation for hours spent in training in excess of eight hours in a day other than for exceptions made by OPM under the authority of 5 U.S.C. § 4102(b)(1) and 5 U.S.C. § 4118. Compensatory time granted under the provisions of 5 U.S.C. § 5543(a) is a form of premium pay subject to the restrictions of 5 U.S.C.§ 4109(a)(1) and 5 CFR 410.402. See OPM file number 08-0115, April 7, 2009.
Under 5 CFR 178.105, the burden of proof is on the claimant to establish the liability of the United States and the claimant's right to payment. 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. See 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, Mar. 15, 1982, as cited in Philip M. Brey, supra. The claim is accordingly 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.