Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Washington, DC
Kimberly A. Steide, DPA
Principal Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/28/2025
Date
The claimant occupied a Supervisory Explosives Investigator, GS-1801-14, position with the Pentagon Force Protection Agency (PFPA) in Washington, DC, when he received hazard pay differential (HPD) under section 5545(d) of title 5, United States Code (U.S.C.). However, his agency terminated HPD on or around January 23, 2015. The claimant requests the U.S. Office of Personnel Management (OPM) direct his agency to restore HPD or, as an alternative, reconsider its denial of pay for standby duty. [1] He also seeks back pay for the HPD or standby duty pay lost during the period of the claim, i.e., since HPD was terminated by PFPA in January 2015. In addition to receiving various claim requests filed by the claimant and on his behalf by the duly appointed representative, we received the agency administrative report (AAR) on January 18, 2024, and October 22, 2024, and the claimant’s comments on the AAR on February 16, 2024. For reasons discussed herein, the claim is denied.
PFPA’s mission is to provide force protection, security, and law enforcement when required for the people, facilities, infrastructure, and other resources at the Pentagon Reservation and for U.S. Department of Defense (DoD) activities and DoD-leased facilities within the National Capital Region. On September 10, 2014, DoD’s Office of Inspector General received an anonymous complaint that “bomb technicians” assigned to PFPA’s Hazardous Devices Division (HDD) were erroneously receiving HPD.[2] Therefore, PFPA’s servicing human resources office, i.e., the Washington Headquarters Services/Human Resources Directorate (WHS/HRD), conducted a review to determine the appropriateness of HPD to bomb technician positions. The WHS/HRD determined that bomb technicians, like the claimant and his subordinate employees, were not eligible for HPD and consequently terminated its receipt to impacted employees in January 2015. The record shows he was reassigned to a GS-0301 Law Enforcement Policy Analyst position with PFPA on September 25, 2022. The claimant does not assert eligibility for HPD, or standby duty pay subsequent to the effective date of his reassignment. We address his eligibility for standby duty pay and HPD below.
Pay for standby duty
PFPA requires the claimant and other bomb technicians, when off duty, to return to the Pentagon Reservation within one hour of notification in the event of an emergency. The claimant states that a September 21, 2012, email from the Assistant Director, Mission Integration Pentagon Force Protection, established the one-hour duration as the fixed response time when off duty to return to the Pentagon Reservation in an emergency.
The record includes an April 14, 2016, email from the claimant to various agency management officials, questioning his entitlement to standby duty pay after the termination of his receipt of HPD. The email states, “On the advice of counsel I am now formally inquiring if PFPA is going to pay the individuals in HDD for standby pay accumulated for standby duty.” In the claim he later filed with OPM, received on September 10, 2020, the claimant specifically requests reconsideration of the “denial of standby duty pay, or on-call pay authorized in [section 551.431 of title 5, Code of Federal Regulations (CFR)] – Time spent on standby duty or in an on-call status…” He does not identify the claim period for his standby duty pay request, but we presume he seeks pay for standby duty for the period from the termination of his HPD in January 2015 to his reassignment to a different position in September 2022.
In the April 5, 2023, letter denying the claimant’s request for standby duty pay, the PFPA’s Acting Director states:
We looked into the standby duty pay matter and determined that the [position descriptions (PD)] that [claimant] was assigned to as a Supervisory Explosives Specialist and as a Supervisory Explosives Investigator, between November 14, 2010, and September 24, 2022, were not designated or identified for standby duty pay. The position requirements did not require or order the employee to remain at or within the confines of his duty station during longer than ordinary periods of duty as required under 5 C.F.R. § 550.143 and did not meet the criteria for approval of standby duty pay.
The agency further explains its rationale for denying the claimant’s request in its AAR to OPM:
Rather than being in a compensable “standby duty” status, [claimant] in fact was in a non-compensable “on call” status as defined in 5 C.F.R. § 550.112(l). An employee is off-duty, and time spent in an on-call status is not hours of work if (1) the employee is allowed to leave a telephone number or carry an electronic device for the purpose of being contacted, even though the employee is required to remain within a reasonable call-back radius; or, (2) the employee is allowed to make arrangements for another person to perform any work that may arise during the on-call period. [Claimant] had a government-issued phone for the purpose of being contacted, if needed. He was expected to remain in a reasonable call-back radius. He was allowed to make arrangements such that work that may arise during his on-call period would be performed by another person. Unfortunately, [claimant’s] use of the term “standby” when describing his status appears to have contributed to the overall confusion regarding the status of [his organization’s] team members outside of duty hours. The colloquial use of the term “standby” is not determinative as to the eligibility for premium pay, based on the actual expectations for the [organization’s] team. The circumstances clearly establish that [claimant] was expected to be “on-call.”
The claimant occupied an exempt position under the Fair Labor Standards Act (FLSA) during the entire claim period, which he does not dispute. It is unclear why he cites the standby duty provisions under 5 CFR 551.431 covering compensation for FLSA nonexempt employees. Because 5 CFR 551.431 is not applicable to the facts of this claim, we will not address it any further.
The claimant’s request to OPM does not identify dates, the amount of time he spent on work he considers standby duty, or the specific remedy he seeks. Rather, he requests a “decision or a determination on the actual meaning of 5 CFR § 551.431…” As a result, it is unclear if he seeks overtime pay for time spent on standby duty (rules on standby duty for FLSA exempt employees like the claimant are found in 5 CFR 550.112(k)), or annual premium pay for standby duty which is a percentage of an employee’s annual rate of basic pay (instructions found at 5 CFR 550.141-144). We thus address the claimant’s entitlement under both provisions.
Standby duty provisions for FLSA exempt employees are found in 5 CFR 550.112(k), which states:
(1) An employee is on duty, and time spent on standby duty is hours of work if, for work-related reasons, the employee is restricted by official order to a designated post of duty and is assigned to be in a state of readiness to perform work with limitations on the employee’s activities so substantial that the employee cannot use the time effectively for his or her own purposes. A finding that an employee’s activities are substantially limited may not be based on the fact that an employee is subject to restrictions necessary to ensure that the employee will be able to perform his or her duties and responsibilities, such as restrictions on alcohol consumption or use of certain medications.
(2) An employee is not considered restricted for “work-related reasons” if, for example, the employee remains at the post of duty voluntarily, or if the restriction is a natural result of geographic isolation or the fact that the employee resides on the agency’s premises. For example, in the case of an employee assigned to work in a remote wildland area or on a ship, the fact that the employee has limited mobility when relieved from duty would not be a basis for finding that the employee is restricted for work-related reasons.
Standby duty pay is allowed under 5 CFR 550.112(k) upon demonstrating that the employee’s whereabouts are narrowly limited and activities severely restricted. During the claim period, the claimant was required to maintain a one-hour response time between notification that an emergency occurred and reporting to the Pentagon Reservation. The claimant contends he had to remain at or close to his place of residence which restricted the familial, recreational, social, and other activities he could engage in as a result. He compiled a list of activities he and other bomb technicians subject to the emergency recall were unable to participate in because of the one-hour response requirement.
Here, we find the agency neither imposed close restrictions on the claimant’s whereabouts nor substantially limited his activities as required to meet standby duty pay provisions. The record reveals no instruction restricting him to his residence or other locale during times he was off duty but subject to emergency recalls. Moreover, because his residence is not designated as a duty station, the claimant’s situation fails to meet 5 CFR 550.112(k)(1) as he is not restricted by official order to a “designated post of duty” (i.e., his whereabouts are not narrowly limited). When he was off duty but subject to emergency recalls, the limitations on his activities were also not so substantial that he could not use the time for his own purposes. He could perform a daily schedule of normal living such as eating and sleeping which is not considered “work;” there is no undertaking or accomplishment for the benefit of the agency. His eating and other functions are performed primarily for his own benefit, notwithstanding his assertions to the contrary. The claimant was not required to be in a state of readiness when he was off duty but subject to emergency recalls (i.e., his activities were not severely restricted). Therefore, the time at issue does not meet the requirements for standby duty under 5 CFR 550.112(k).
5 U.S.C. 5545(c)(1) authorizes payment of annual premium pay for regularly scheduled standby duty. The implementing regulation at 5 CFR 550.141 states:
An agency may pay premium pay on an annual basis…to an employee in a position requiring him or her regularly to remain at, or within the confines of, his or her station during longer than ordinary periods of duty, a substantial part of which consists of remaining in a standby status rather than performing work.
Further guidance is found in 5 CFR 550.143(a), which states that the type of position referred to in 5 CFR 550.141 must meet all three of the conditions described, including:
(1) The requirement must be definite and the employee must be officially ordered to remain at his station. The employee’s remaining at his station must not be merely voluntary, desirable, or a result of geographic isolation, or solely because the employee lives on the grounds.
Relevant to this claim, 5 CFR 550.143(b) explains the meaning in 5 CFR 550.141 of “at, or within the confines of, his station” as:
(3) In an employee’s living quarters, when designated by the agency as his duty station and when his whereabouts is narrowly limited and his activities are substantially restricted. This condition exists only during periods when an employee is required to remain at his quarters and is required to hold himself in a state of readiness to answer calls for his services. This limitation on an employee’s whereabouts and activities is distinguished from the limitation placed on an employee who is subject to call outside his tour of duty but may leave his quarters provided he arranges for someone else to respond to calls or leaves a telephone number by which he can be reached should his services be required.
The claimant had to remain ready to respond to emergencies within a one-hour window, but he was not under agency orders to remain at his residence, nor was it designated as a “duty station.” His activities were also not substantially restricted for reasons already discussed. Because he does not meet provisions under 5 CFR 550.141, the claimant is not authorized annual premium pay for standby duty.
In its AAR to OPM, the agency asserts that such time spent by the claimant meets the definition of “on-call status” under 5 CFR 550.112(l) and thus not considered hours of work. Under 5 CFR 178.105, the burden is upon the claimant to establish the liability of the United States and his right to payment. The settlement of claims is based upon the written record only, which will include submissions by the claimant and employing agency. In this case, the claimant has failed to meet this burden. Since an agency decision made in accordance with established regulations and its discretionary authority, as is evident in the present case, cannot be considered arbitrary, capricious, or unreasonable, there is no basis upon which to reverse its decision that the claimant was off duty but in an “on-call status” under 5 CFR 550.112(l) when he was subject to return to the Pentagon Reservation within one hour of notification of an emergency.
HPD
The statutory authority for payment of hazardous duty differentials is found in 5 U.S.C. 5545(d), which states in relevant part:
The Office shall establish a schedule or schedules of pay differentials for duty involving unusual physical hardship or hazard… Under such regulations as the Office may prescribe, and for such minimum periods as it determines appropriate, an employee to whom chapter 51 and subchapter III of chapter 53 of this title applies is entitled to be paid the appropriate differential for any period in which he is subjected to physical hardship or hazard not usually involved in carrying out the duties of his position. However, the pay differential-
(1) does not apply to an employee in a position the classification of which takes into account the degree of physical hardship or hazard involved in the performance of the duties thereof, except in such circumstances as the Office may by regulation prescribe…
When PFPA established its bomb squad, the claimant served as supervisor for its organization, from 2010 to 2022. At the time HPD was terminated in January 2015, he, , occupied PD number K406A , Supervisory Explosives Investigator, GS-1801-14. At the time HPD was terminated in January 2015, the claimant was assigned as a Supervisory Explosives Investigator, GS-1801-14, under PD number K406A. On May 31, 2015, the claimant was reassigned to a different PD, number M759A, with the same title, series, and grade as his preceding position. He was assigned to that PD for the remainder of the claim period.
The written record documents the numerous attempts that, after HPD was terminated in 2015, the claimant made requesting his employing agency either to reinstate HPD or the authorization of standby duty pay. In an April 24, 2015, memorandum addressed to the claimant (“Subject: [HPD] Eligibility”), the WHS/HRD Director explains the correspondence was in response to the PFPA’s request “inquiring about employees’ eligibility to receive [HPD].” As a result, the WHS/HRD conducted a review of the claimant’s official PD, (i.e., PD number K406A), and attached an evaluation statement for the position. The evaluation statement concludes:
Per our analysis, it is clearly indicative that the hazardous duty or physical hardship was an inherent duty and responsibility and were regular and recurring in performing the duties of the position and were accurately factored in as an element in determining the grade of the position.
The WHS/HRD Director further explains the agency’s intent to reassign the claimant’s position to a different PD (i.e., PD number M759A), which describes major duties and responsibilities similar to his prior PD but revised to remove references to HPD eligibility.
The record includes an October 5, 2017, letter from the claimant’s representative to the Secretary of the DoD, stating, “Only you, as the Head of the Agency, has the authority and discretion to take action to rectify this unjust pay situation by ordering the restoration of [HPD] to the Bomb Squad, including the ordering of retroactive [HPD] to the Bomb Squad members to 2015.” The request was forwarded to the General Counsel for DoD’s WHS and PFPA, who in turn directed it to officials at the WHS/HRD for response. In a November 22, 2017, letter, the WHS/HRD Director reaffirmed the agency’s denial of the claimant’s HPD eligibility, stating:
The fact remains that the employees on the Explosive Ordinance Disposal (EOD) positions were not eligible to receive [HPD]. That determination was the result of a position audit following an anonymous referral to the DoD Inspector General (IG); it was neither “arbitrary” nor “capricious.” [OPM] Job Family Position Classification Standard for Administrative Work in the Inspection, Investigation, Enforcement, and Compliance Group, 1800 series, issued March 2009, Revised April 2011, was used in classifying and evaluating the positions. In accordance with the regulations outlined in 5 CFR § 550.904, if hazardous duties were taken into consideration in determining the classification of the [PD], an employee will not be eligible to receive an additional [HPD]. After an in-depth review and analysis of the [PDs] in conjunction with the regulations, WHS/HRD determined the initial classification of the positions did consider the hazardous duties involved, and therefore, the [PDs] inaccurately captured the eligibility for [HPD].
OPM received a request from the claimant’s representative on September 15, 2020, seeking to file a classification appeal on claimant’s behalf under provisions of 5 U.S.C. 5112, which allow an employee to file an appeal with OPM if he or she believes the duties of their current official position are incorrectly classified. However, the request specifically states that he seeks reconsideration of his agency’s “erroneous classification of [the claimant’s] position to exclude him from receiving [HPD] pursuant to 5 U.S.C. §5545(d).” Because HPD is not addressed through OPM’s classification appeals process nor was the title, series, or grade of the official position in dispute, we advised the claimant’s representative that HPD is instead a compensation issue reviewable under provisions of 31 U.S.C. 3702(a)(1). Regardless, the classification appeal request to OPM includes a February 5, 2018, report from a consultant, providing the following rationale to support granting HPD to the claimant’s position:
The Agency has intentionally and wrongly interpreted OPM classification and hazard pay policy in claiming to have considered all exposure to hazards in the classification of [claimant’s] current (i.e., 2015) position. The Agency claims to have considered exposure to hazards under the General Schedule Supervisory Guide (GSSG) in classifying the new PD. Since the GSSG does not contain classification criteria for assessing the grade level of personal exposure to hazards, physical effort and/or risks in the work environment, it would be impossible to apply the GSSG to consider hazards in [claimant’s] job.
Subsequently, OPM received a claim for HPD from the claimant’s representative on July 19, 2021, seeking restoration of HPD on his behalf and backpay from lost pay retroactive to January 2015. He estimates $172,458.65 with interest is owed to the claimant at the time of filing. The request includes a letter marked as hand-delivered and dated December 16, 2020, to the PFPA’s Acting Director, requesting to file a HPD claim with the employing agency on the claimant’s behalf. The claimant next submitted a Congressional inquiry to compel a response from his employing agency regarding the HPD claim filed on his behalf. In a June 21, 2021, letter, the Acting Chief Human Resources Officer for the WHS provided the agency’s response to the Congressional inquiry, stating:
In his correspondence to you dated May 13, 2021, [claimant] requested that WHS make a decision to either “pay, stand by pay, or deny stand by pay.” However, within your correspondence, it is referencing a decision regarding [HPD]. Nonetheless, both of these issues have been raised by [claimant] dating back as far as 2012 and have previously been addressed with the enclosed letter as the latest correspondence to his attorney on November 22, 2017.
I have reviewed the record and find no reason to disturb the previous decision made by the [OPM] and [PFPA] Management.[3]
The claimant submitted another Congressional inquiry concerning his HPD claim. In a July 11, 2023, letter, the Chief Human Resources Officer for the WHS provided the agency’s response to the Congressional inquiry, reiterating that it “found no justification to disturb or challenge the previous decisions made by the [OPM] and [PFPA] management.” The letter concludes:
We have repeatedly addressed this matter, and it is evident that [claimant’s] claim lacks substantive grounds and merit. The issue had been raised by [claimant] dating back as far as 2012, and his most recent congressional inquiry was addressed with the enclosed letter to the Honorable Robert J. Wittman on June 21, 2021.
Lastly, in response to our request for information regarding the agency’s decision on the claimant’s request for HPD, the PFPA official explains in a June 28, 2023, email that “the decision was made by WHS/HRD and prior responses on that topic have been prepared by WHS/HRD.” We conclude the claimant has exhausted all remedies available to challenge his agency’s decision regarding termination of HPD. Therefore, we considered the rationale provided by various correspondence on record from WHS/HRD in adjudicating the claimant’s request for HPD.
Implementing regulations for payment of HPD are found in 5 CFR 550.904, which provide in relevant part:
(a) An agency shall pay the [HPD] listed in appendix A of this subpart to an employee who is assigned to and performs any duty specified in appendix A of this subpart. However, [HPD] may not be paid to an employee when the hazardous duty or physical hardship has been taken into account in the classification of his or her position, without regard to whether the hazardous duty or physical hardship is grade controlling, unless payment of a differential has been approved under paragraph (b) of this section.
(b) The head of an agency may approve payment of a [HPD] when-
(1) The actual circumstances of the specific hazard or physical hardship have changed from that taken into account and described in the [PD]; and
(2) Using the knowledge, skills, and abilities that are described in the [PD], the employee cannot control the hazard or physical hardship; thus, the risk is not reduced to a less than significant level.
(c) For the purpose of this section, the phrase “has been taken into account in the classification of his or her position” means that the duty constitutes an element considered in establishing the grade of the position-i.e., the knowledge, skills, and abilities required to perform that duty are considered in the classification of the position.
HPDs authorized by 5 CFR 550.904 may be paid for specific hazardous duties listed in the table in appendix A of 5 CFR part 550, subpart I. Relevant to this claim, the table identifies “Exposure to Hazardous Agents, work with or in close proximity to: (1) Explosive or incendiary materials” as a compensable hazardous duty.
However, the point of HPD is to account for unique circumstances when an employee is assigned to and performs work involving unusual physical hardship or hazard for which the employee does not already receive compensation through the classification process. To the extent that an employee regularly works with or in close proximity to the hazard, the employee is ordinarily compensated for that hazard through the classification process. Pursuant to 5 U.S.C. 5545(d), an employee is entitled to HPD for any period in which “he is subjected to physical hardship or hazard not usually involved in carrying out the duties of his position.” In view of the statutory mandate, the differential authorized by 5 U.S.C. 5545(d) may not be paid in connection with a hazard encountered on other than an irregular or intermittent basis. See B-189645, December 21, 1977. Furthermore, in Adair v. United States, the U.S. Court of Appeals for the Federal Circuit defined the term “usually involved in carrying out the duties of his position” as “inherent in a position, which regularly recurs, and which is performed for a substantial part of the working time.” 497 F.3d 1244, 1253 (Fed. Cir. 2007).
Notwithstanding the fact the claimant’s position was titled “Supervisory Explosives Investigator” and assigned to an organization characterized as the “bomb squad” by PFPA, we nonetheless reviewed the PDs associated with his position during the claim period (i.e., PD numbers K406A and M759A) to ascertain the occurrence of compensable hazardous duties in his position. The following duties are described under the “Major Duties” section of PD number K406A:
The employee responds to and manages emergency incidents, involving Improvised Explosive Devices (IED) or Weapons of Mass Destruction (WMD), and other terrorist acts…The employee is responsible for the daily transportation and physical protection of government property. The employee supervises and ensures employees maintain a rigorous training regimen to include live fire exercises with explosives and hazardous materials, physical fitness, and appropriate law enforcement training consistent with agency requirements.
Assists special agents in limited undercover operations, search warrants and high-risk entries in order to provide technical investigative assistance; locate explosives, destructive incendiary devices, and booby traps; and identify the presence of additional hazardous materials which may present a threat to agent, officer, or to public safety.
Responsibilities include executing HDD missions on the Pentagon Reservation and/or within PFPA’s mission. Team responsibilities include: render safe and/or removal of suspected IED, incendiary devices, explosives, explosive chemicals (as defined by [Bureau of Alcohol, Tobacco, Firearms and Explosives]), pyrotechnics, and ammunition; proper and safe transportation, disposal, and/or storage of known or suspected explosive devices/material; the conduct of bombing investigations; collection and preservation of evidence; preparation of courtroom testimony; storage, maintenance, and inventory of bomb squad equipment…
Under the “Other Conditions” section of PD number K406A, it states:
-
- The employee [performs] hazardous duties in a dangerous environment involving live explosives and [Chemical, Biological, Radiological, and Nuclear (CBRN)] agents.
- The employee is required to work with and transport explosives, explosively driven tools, weapons, and CBRN agents every day.
PD number M759A includes similarly described major duties and conditions. Both PDs describe the risks and discomforts involved in the work environment, the nature of the work assigned, and the regulations and credentials normally required with work involving regular exposure to hazardous agents. Our findings support the conclusion that exposure to hazardous agents is necessary in carrying out the duties of the claimant’s position; i.e., they are inherent to his position, regularly recur, and are performed for a substantial part of the working time. Because the hazardous duties performed by him are neither irregular nor intermittent (but instead constitute the major duties and responsibilities of his position), his situation does not meet conditions under 5 U.S.C. 5545(d) for the grant of HPD.
In addition, 5 CFR 550.904(a) is clear that HPD is prohibited in most cases when the hazardous duty has been taken into account in the classification of the employee’s position. The claimant refutes the agency’s assertion that the hazardous duties he performs were considered in the classification of his position. His rationale, as presented in the consultant’s February 2018 report, is that his supervisory position was evaluated by application of the GSSG and it “does not contain classification criteria for assessing the grade level of personal exposure to hazards, physical effort and/or risks in the work environment.” In reviewing the agency’s evaluation statement for PD number K406A, we note that exposure to hazardous agents is described in the evaluation (e.g., under “Major Duties,” it reads that “working with hazardous materials is an inherent part of the positions’ responsibilities and serves the basic purpose for which the position exists.”), including in its analysis of Factor 1, Program Scope and Effect.
In the area of HPD, it is consistently held that a determination of whether a particular situation warrants payment of HPD is vested primarily in the employing agency. We will not substitute our judgment for that of the agency officials who are in a better position to investigate and resolve the matter, unless there is clear and convincing evidence that its decision was wrong or that it was arbitrary or capricious. See B-246364, April 14, 1992. The agency asserts that exposure to hazardous agents was considered in the classification of the claimant’s position. OPM will accept the facts asserted by the agency, absent clear and convincing evidence to the contrary. Accordingly, the claim for HPD is denied.
Alternatively, 5 CFR 550.904(b) provides that “[t]he head of an agency may approve payment of a [HPD]” even though the hazardous duty was taken into account in the classification of a position if the two described conditions are met (italics added). The word “may” in the regulation denotes a permissive term. The plain language in the regulation makes clear the decision to approve payment of HPD under this section is delegated to, and at the discretion of, the employing agency. Therefore, OPM has no authority to grant HPD under 5 CFR 550.904(b) provisions.
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.
[1] OPM adjudicated a related claim for restoration of HPD from the claimant’s subordinate employee, who occupied a Lead Explosives Investigator position. We denied the claim for reasons discussed in OPM File Number 16-0001, dated August 9, 2016. Regardless, the claimant’s request presents a different rationale for HPD from that of his subordinate employee.
[2] Because the record shows the name of the claimant’s organization changed during the claim period, we identify it hereafter in the decision as either HDD or “organization.”
[3] Because OPM had not rendered a decision on the claimant’s HPD request at that time, we conclude the previous OPM decision refers to OPM File Number 16-0001.