Office of the General Counsel

OPM Ref. # 1996-01678

Dear Mr. [xxx]:

This replies to your June 19, 1996 letter to the Comptroller General of the United States requesting an opinion as to whether Dr. [xxx], an employee of the [Agency], is entitled to compensation under 5 U.S.C. 5542(b)(2)(B)(iv) for official travel away from the employees official duty station outside of his regular tour of duty. Your letter included three questions, each of which is presented, with our answers, below.

1. Given the requirements imposed by the meat and poultry inspection statutes, does overtime travel to provide required inspection coverage for vacant slaughter positions (where budgetary and staffing limitations preclude or delay filling the vacancy) meet the 5 U.S.C. 5542(b)(2)(B) criteria for compensation? Do these limitations and the requirement for inspection presence provide the "administratively uncontrollable event necessitating travel and precluding scheduling of the travel during regular working hours" that justifies compensation under Title 5?

Answer: For the reasons stated in your letter, the answer to both questions is "yes".

2. Is Dr. [xxx] entitled to compensation for the 2.5 hours of overtime travel he performed under the circumstances described?

Answer: You correctly note that the proper method for calculating overtime pay for travel to a temporary duty (TDY) near an employees permanent duty station is the difference between the employees regular commuting time to the employees permanent duty station and the travel time between the employees residence and the TDY location. See 5 C.F.R. 550.112(j)(2). However, that section also states that an agency may define a radius of up to 50 miles for determining whether an employee is entitled for overtime pay for travel away from the employees official duty station. Section 550.112(j). Therefore, if the TDY site in this case [xxx] is within the mileage radius from Dr. [xxx]s permanent duty station [xxx] prescribed by the [Agencies], he would not be entitled to overtime. To clarify, the mileage radius is drawn from the city limits of the official duty station, and not from the employees residence. However, if you conclude that Dr. [xxx]s travel was to a TDY site, he is entitled to the 2.5 hours claimed.

3. If you concur with our revised interpretation and authorize payment of travel overtime to Dr. [xxx], may we apply the decision prospectively from the date of decision and thereby avoid any potential back pay claims from other employees who were not compensated under our previous, narrower interpretation of the Title 5 criteria?

Answer: No. As a general rule, the statutory limitation on claims is six years, and you may not adjust this time by administrative regulation. See 31 U.S.C. 3702(b). However, it is a claimants responsibility to establish the legal liability of the United States and the right to payment. 4 C.F.R.  31.7. Therefore, the burden is on your employees to document any overtime claims they might present. To the extent your employees are able to document their claims, though, they are entitled to back pay for claims arising within six years of the date their claims are presented to the agency.

Very truly yours,

Paul Britner
Senior Attorney