Office of the General Counsel

Matter of [xxx]
Date: February 27, 1998
File Number: 9601060

OPM Contact: Jo-Ann Chabot

A retired federal employee filed a claim for restoration of, and payment for, 72 hours of compensatory time. His claim is denied for the reasons stated below.

The claimant stated that he earned 73.4 hours of compensatory time from April 1995 to early December 1995. He stated that he did not have an opportunity to use any compensatory time during this period because he had been given additional duties in August 1995 and he also was trying to exhaust accumulated annual leave that was subject to forfeiture at the end of the leave year. On January 13, 1996, the claimant requested restoration of the annual leave that he had forfeited at the end of the leave year because he had been ill. The claimant states that, on January 25, 1996, he was advised that his supervisor would not approve the restoration request until the claimant exhausted his unused compensatory time. In this regard, the claimant's restoration request shows a note written by his supervisor and stating he would approve the claimant's request "when his comp time balance is zero." The claimant took 72 hours of compensatory time during the first two weeks of February 1996, he returned to work on February 14, 1996, and his request for restoration of the forfeited annual leave was approved on February 27, 1996.

The claimant believes that he was coerced into taking compensatory time that he had planned to use in the future to preserve his sick and annual leave. He also stated that, if he had not been required to use the compensatory time, he would have been compensated for it as part of his retirement settlement.

Section 5543(a) of title 5, United States Code, provides that agency heads may, at an employee's request, grant the employee compensatory time off from his or her scheduled tour of duty instead of payment for an equal amount of time spent in irregular or occasional overtime work. Section 5543(a) also specifies that agency heads may provide that an employee, whose rate of basic compensation exceeds the maximum rate of basic pay for GS-10, shall be granted compensatory time off equal to the amount of time spent in irregular or occasional overtime work. Section 5543(b) provides that, at the request of an employee, the head of an agency may grant the employee compensatory time off instead of overtime pay for an equal amount of time spent in irregular or occasional overtime work. Subsection (b) further provides that an agency head may not require an employee to be compensated for overtime work with an equivalent amount of compensatory time off from his or her tour of duty. The corresponding OPM regulation, at 5 C.F.R. 550.114, tracks the statutory language.

Agency regulations (NAVSEANOTE 12620, August 19, 1994) required employees to take compensatory time off prior to using accrued annual leave, unless use of the compensatory time would result in forfeiture of accumulated annual leave at the end of the leave year. The regulations also required employees to take compensatory time off within three months after its accrual and specified that, if employees declined to schedule the compensatory time, their supervisors were required to schedule the time off and direct its use. Moreover, the regulations specified that supervisors were responsible for monitoring and controlling the accumulation and use of compensatory time as well as for ensuring mission accomplishment by establishing efficient and equitably managed work schedules.

The agency erred by withholding action on the claimant's request for restoration of annual leave until he had exhausted his balance of compensatory time. If the employee met all the qualifications for the restoration of annual leave provided in 5 U.S.C 6304(d), then the leave should have been restored, regardless of the status of the employee's compensatory time. The applicable agency regulation requiring the use of compensatory time before the use of annual leave, by its own terms, does not alter the legal conditions under which leave is accrued or under which forfeited leave may be restored.

Nonetheless, the employee's supervisor had the legal authority to schedule the employee's use of compensatory time. Accordingly, the claim employee's claim for restoration of his compensatory time is denied.