Washington, D.C
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Grading Branch
Quality Assessment Division
Agricultural Marketing Service
U.S. Department of Agriculture
Cassville, Missouri
Damon B. Ford
Compensation and Leave Claims Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
12/07/2023
Date
The claimant is a Federal civilian employee of the Poultry and Egg Grading, Grading Branch, Quality Assessment Division, Agricultural Marketing Service (AMS), U.S. Department of Agriculture (USDA), in Cassville, Missouri. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of his requests for compensation for travel time, retroactive full-time employment benefits, and per diem. We received the claim on August 11, 2022, and the agency administrative report on October 3, 2022. For reasons discussed herein, the claim is denied.
On February 2, 2020, the claimant was appointed to his Federal service position as an Agricultural Commodity Grader, GS-1980-07, on an intermittent work schedule in Neosho, Missouri. The agency subsequently processed a change in work schedule, from intermittent to full-time employment, and a change in duty station to Cassville, Missouri with an April 11, 2021, effective date. The claimant submitted a pay claim to his agency on January 26, 2022. In his claim to OPM, he asserts the agency’s July 28, 2022, denial of his requests was “against what the policy states” but provides no further explanation. We address each of the claimant’s requests below.
Compensation for travel time
The claimant states he is owed compensation for travel time between his home and temporary duty locations. He asserts he performed work outside his official duty station (ODS) located at 17331 State Highway D in Neosho, Missouri, from 2020 to 2021. He provided no addresses for the temporary duty locations, but the agency identified the two alternative work locations in its July 2022 decision as: (1) One Tyson Avenue in Noel, Missouri, which is reported by the agency as 23-29 miles away from the ODS, and (2) 9066 Highway W in Cassville, Missouri, which is reported by the agency as 25-31 miles away from the ODS. In his claim to OPM, the claimant does not dispute the addresses of the temporary duty locations or the distances between the ODS and temporary duty locations reported by the agency. The agency explains denying his request in its decision as follows:
Title 5 Code of Federal Regulations [(CFR)] Part 550.112 (j)…states that agencies may define the limit of an employee’s ODS as no greater than 50 miles to determine whether an employee’s travel is within or outside the limit of the employee’s ODS for pay purposes. AMS has defined the limits of the ODS as a 50-mile radius.
Both of the above alternative work locations are within a 50-mile radius from [his] ODS of Neosho, MO. [He is] not entitled to compensation for the time spent driving from [his] home to the alternate work locations. This time spent commuting to the alternative work locations is not considered hours of work. It is considered [his] home-to-work commute…
Depending on the Fair Labor Standards Act (FLSA) exemption status of an employee, time spent traveling may be considered compensable hours of work as provided for by sections 550.112(g) and/or 551.422(a) of 5 CFR. Nonetheless, both FLSA nonexempt and exempt employees covered by subchapter V of chapter 55 of title 5, United States Code (U.S.C.), fall under the provisions of 5 CFR 550.112(g). Relevant here, within that section, 5 CFR 550.112(j) authorizes agencies to prescribe the mileage radius to determine whether an employee’s travel occurs within or outside the limits of the employee’s ODS. Further, as specified by 5 CFR 550.112(j)(2), normal travel time from home-to-work and vice versa is not hours of work. Normal home-to-work and vice versa includes travel between an employee’s home and temporary duty location within the limits of an employee’s ODS.
Because an agency may define a radius of up to 50 miles for determining whether an employee is entitled to pay for travel away from an employee’s ODS, the claimant would only be entitled to compensation for travel time if the temporary duty site is located outside the 50-mile radius adopted by AMS. Based on the record, all time the claimant spent traveling from his home to temporary duty locations and returning home at the end of his workday occurred within the 50-mile radius of his ODS and is thus considered normal home-to-work and work-to-home travel. Therefore, it is not hours of work and not compensable, and the claim is accordingly denied.
The claimant seeks redress under the provisions of 31 U.S.C. 3702. The agency administrative report includes a Standard Form 50 showing his position is designated as FLSA nonexempt, i.e., covered by provisions of the FLSA. The claimant has not challenged that determination. FLSA claims regarding hours of work are reviewable for Federal employees under the provisions of 29 U.S.C. 204(f) and its implementing regulations in 5 CFR, part 551, subpart G, and may not be processed under the provisions of 31 U.S.C. 3702.
Although we may not adjudicate an FLSA claim under provisions of 31 U.S.C. 3702, we note the FLSA regulations in 5 CFR 551.422 governing time spent traveling between home and a temporary duty location are similar to provisions in 5 CFR 550.112(g). For example, 5 CFR 551.422(b) states in relevant part:
An employee who travels from home before the regular workday begins and returns home at the end of the workday is engaged in normal “home to work” travel; such travel is not hours of work.
Section 551.422(d) of 5 CFR further specifies:
…an agency may prescribe a mileage radius of not greater than 50 miles to determine whether an employee’s travel is within or outside the limits of the employee’s [ODS] for determining entitlement to overtime pay for travel under this part. However, an agency’s definition of an employee’s [ODS] for determining overtime pay for travel may not be smaller than the definition of “official station and post of duty” under the Federal Travel Regulation issued by the General Services Administration [(GSA)] (41 CFR 300-3.1).
Thus, similar to 5 CFR 550.112(j)(2), time spent in normal home-to-work and work-to-home travel is not considered hours of work for FLSA purposes (5 CFR 551.422(b)). This also holds true whether the employee commutes from home to work at his ODS or within the confines of a temporary duty location. FLSA regulations allow the agency to define the mileage radius to determine whether an employee’s travel is within or outside the limits of the ODS. Therefore, if travel did not occur outside the 50-mile radius from his ODS (as imposed by AMS), the additional time spent commuting from home-to-work and vice versa is not compensable under FLSA regulations in 5 CFR 551.422.
In addition, the claimant states he received compensation for travel time under similar circumstances when he was assigned to a different component of the USDA. However, the claims jurisdiction authority of OPM is limited to consideration of legal and regulatory liability. OPM has no authority to authorize payment based on past situations since there is no assurance such occasions were handled properly.
Retroactive full-time employment benefits
The claimant states that while he was on an intermittent work schedule, his supervisor assigned him to perform work at George’s Inc. plant in Cassville, Missouri “for one shift that was requested Monday through Friday 8 hours or more a day.” He states he worked the shift for 11 months prior to his agency changing his work schedule on April 11, 2021, from intermittent to full-time. In his January 26, 2022, claim to his agency, the claimant asks, “So, if I have been assigned to cover a plant with a regular standard schedule then why am I not getting treated as full time and receiving vacation pay, sick leave, night differential, holiday pay, etc.?” Because the agency has already taken action by changing his work schedule, we must conclude the claimant is requesting the agency provide him with the annual leave, sick leave, and other entitlements he would have earned had his change in work schedule occurred earlier.
Each Federal agency has authority and responsibility to establish work schedules for its employees. Before discussing entitlement to benefits conferred upon full-time employment, we must first examine whether sufficient information was provided to demonstrate that the agency should have, but failed to, change his work schedule earlier from intermittent to full-time as asserted by the claimant. Section 340.403(a) of 5 CFR states:
An intermittent work schedule is appropriate only when the nature of the work is sporadic and unpredictable so that a tour of duty cannot be regularly scheduled in advance. When an agency is able to schedule work in advance on a regular basis, it has an obligation to document the change in work schedule from intermittent to part-time or full-time to ensure proper service credit.
OPM does not conduct investigations or adversary hearings in adjudicating compensation claims but relies on the written records presented by the parties. See 5 CFR 178.105, and Frank A. Barone, B-229439, May 25, 1988. The record includes a spreadsheet provided by the agency, which compiles select information from the claimant’s time and attendance reports such as dates, start and finish times, facility location, and total number of hours worked daily from February 3, 2020, to April 9, 2021. After careful review, we note the spreadsheet shows he regularly worked over 40 hours in the workweek, but we are otherwise unable to discern a pattern to his schedule as he worked different days beyond the typical Monday to Friday and reported different start and finish times and number of total hours worked on a daily or weekly basis. Because he worked an irregular number of hours or days, such schedule appears characteristic of the sporadic, unpredictable nature of work typical of an employee on an intermittent work schedule. Because the claimant provided no additional information other than statements made in his claim requests, we found no evidence to show the agency scheduled his work in advance of the workweek on a regular basis. Absent evidence to show the claimant had a prearranged scheduled tour of duty, we are unable to determine whether the agency had an “obligation” to change his work schedule from intermittent to full-time as established by 5 CFR 340.403.
Moreover, the fact that an employee’s appointment is designated “intermittent” does not determine entitlement to leave benefits if, in fact, the employee worked regularly scheduled tours of duty. 57 Comp. Gen. 82 (1977) and B-183813, June 20, 1975. If an employee worked an established regular tour of duty for each of the two workweeks in a biweekly pay period, the employee would be entitled to leave benefits as a defacto full-time employee when required to work a standard workweek. Therefore, although the Standard Form 50 on record shows he was coded at the time as an intermittent employee, this alone is insufficient to show the claimant did not accrue annual or sick leave and other benefits he may have been entitled to as a defacto full-time employee working a regularly scheduled tour of duty. Under 5 CFR 178.105, the burden is upon the claimant to establish the liability of the United States. In this case, notwithstanding statements made in his claim requests, the claimant has not provided any leave and earnings statements, timesheets, emails, or other written evidence to demonstrate either that (1) he had been assigned an administratively prescribed regular tour of duty that would entitle him to leave and other benefits of full-time employment, and (2) he did not accrue annual or sick leave and other entitlements as a defacto full-time employee from working a regularly scheduled tour of duty. Accordingly, because he has not met his burden of proving entitlement to retroactive leave and other benefits conferred upon full-time employment, his claim is denied.
Per diem
The claimant requests per diem for travel to and from George’s Inc. OPM does not have authority to consider requests or assert jurisdiction over any claim against the agency regarding per diem. Per diem is not subject to review under OPM’s claim adjudication authority in 31 U.S.C. 3702(a)(2). The GSA, not OPM, is is responsible for issuing regulations on travel, transportation, and subsistence expenses and allowances for Federal civilian employees as authorized in chapter 57 of 5 U.S.C. GSA’s Civilian Board of Contract Appeals is responsible for settling travel, transportation, and subsistence claims (http://www.cbca.gsa.gov/). Therefore, this portion of the claim is denied for lack of subject-matter jurisdiction.
This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the employee’s right to bring an action in an appropriate United States court.