Office of the General Counsel

S013000
Re: Claim for Overtime under 5 U.S.C. 5542

Dear Ms. [xxx]:

This responds to your claim for 959 hours of overtime which you state that you worked from October 1991 to August 1993. You state that you are a [xxx] in [xxx], and that the overtime resulted from your participation on the management team in collective bargaining negotiations between the [agency] and the [union]. You also state that you are exempt from the provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201-219. Your claim is denied for the reasons stated below.

On April 19, 1996 the Program Director for Labor and Employee Relations, denied your request of March 25, 1996 for overtime compensation. He noted that the overtime was not officially ordered or approved by your supervisor or other [agency] managers, you had advised that your previous requests for overtime pay for collective bargaining negotiations had been denied, and overtime had not been approved for any of the [agency] staff who were engaged in collective bargaining negotiations during the period for which you requested overtime. On September 6, 1996, the [agency] advised that Mr. [xxx]s denial of your request would serve as the agency statement on your formal claim for overtime.

You note that the Deputy Director for Labor and Employee Relations and your second level supervisor, was aware of the extra time that you worked in connection with the [collective bargaining] negotiations. In addition, you note that Mr. [xxx] was the chief negotiator for the [agency] at the [collective bargaining] negotiations and worked with you on research and writing sessions, as well as in strategy meetings with the management team that occurred during overtime hours. You state that these sessions were designed to draw on your expertise in developing proposals that would be presented to the [labor union] on the following day and that you were expected to be at all of these sessions to be able to perform your role during the negotiations. You also state that this work could not be done during the day when you were in negotiations with representatives of the [labor union].

You state that you have records of meetings held beyond normal working hours where your presence was required, copies of minutes of daily negotiations which could not be prepared until after normal working hours, and computer disks confirming that you prepared documents and conducted research after normal working hours. You also state that management team members could testify to corroborate that you worked beyond normal duty hours. Citing Emma H. Welsh, B-214880, September 25, 1984, you contend that the [agencys] argument that it did not expressly order and approve overtime for the [collective bargaining] negotiations lacks merit. You note in this regard that an [agency] supervisory official with authority to order and approve overtime, presumably Mr. [xxx], actively induced you to work overtime.

Section 31.7 of Title 4, Code of Federal Regulations, specifies that claims are settled on the basis of the written record and that the claimant has the burden of proving his or her right to payment. See also Wade B. Bumgardner, B-184795, August 5, 1976. For a claim to succeed under 5 U.S.C. 5542, the claimant has the burden of proving that he or she actually worked overtime that was officially ordered or actively induced by an agency official with authority to order or approve overtime work. See 5 U.S.C. 5542; Carl L. Haggins, B-216952, October 18, 1985; Jim L. Hudson, B-182180, January 6, 1982. The record shows that a supervisory official with competent authority did not expressly direct you to work overtime or approve overtime related to your participation in the [collective bargaining] negotiations. Indeed, overtime was not approved for any of the [agency] staff who worked on the [collective bargaining] negotiations during the period for which you request overtime.

Although your second level supervisor, Mr. [xxx], may have been aware that you were working in excess of 40 hours per week during the [collective bargaining] negotiations, mere knowledge that an employee is performing overtime, without active inducement, is not enough to support payment in the absence of an official order authorizing or approving overtime work. See Carl L. Haggins, B-216952; Jim L. Hudson, B-182180, January 6, 1982. Active inducement to work overtime occurs when a supervisor requires an employee to perform work that cannot be accomplished during working hours, schedules extra hours by placing the employee on a duty roster and requires the employee to obtain a substitute when the employee is not able to work as scheduled, and indicates that failure to work overtime will have a detrimental effect on the employees performance rating or result in adverse action against the employee. Donald E. Bordenkircher and Chester C. Jew, B-188089, October 31, 1977; John W. Gardner, B-175275.05, April 7, 1976. The record here does not include annotated calenders, diaries, or other documentary evidence showing that you actually worked 959 hours of overtime. Moreover, the record does not show that an [agency] official with the authority to order or approve overtime actually expected you to work overtime in connection with the [collective bargaining] negotiations or that your failure to work overtime would adversely affect your performance appraisal.

The Comptroller General decision that you included with your claim, Christine D. Taliaferro, B-199783, March 9, 1981, as well as the decision that you cited, Emma H. Welsh, B-214880, were decided on the basis of the overtime provisions of the FLSA. Although the overtime claim in Welsh also was submitted under 5 U.S.C. 5542, the claim was disallowed because the employee failed to show that an authorized official actively induced her to work overtime. Therefore, these decisions do not support your claim. In view of this, your claim for 959 hours of overtime is denied.

Sincerely,

Jo-Ann Chabot
Attorney