Office of the General Counsel

Date: April 9, 1998
Matter of:[xxx]
File Number: S001134

OPM Contact: Murray M. Meeker

By memorandum dated June 2, 1997, the claimant, an [employee] with the [agency], requested compensation ("standby duty pay") for periods when she was in an "on call status" on weekends and holidays beginning in 1972.⁽¹⁾ For the reasons discussed herein, the claim is denied.

The agency reported that between 1986 and January 1998, weekend and holiday supervision in PLMS was assigned to first line supervisors, including the claimant. On a rotating basis, first line PLMS supervisors were assigned to work a regular 8 hour tour of duty each Saturday, Sunday, and holiday, and the same supervisor was then expected to assume responsibility for the remaining off-duty hours within his or her assigned weekend or holiday in order to handle any problems that could not be resolved by the staff on duty. While these problems were generally resolved by telephone, there were occasions when it was necessary for a supervisor to report to the Medical Center.⁽²⁾

While this weekend and holiday duty was included in the supervisors' position descriptions, Hospital Management never approved an official "on call policy" during this period. As explained by the agency, first line supervisors were expected to handle calls on assigned weekends and holidays, but they were not in an official "on call" status; the supervisors were not required to carry beepers, and they were not required to stay by their telephones.

As a General Schedule employee, the claimant's entitlement to premium pay for standby duty is governed by the provisions of 5 U.S.C. 5545(c)(1) which authorizes the head of an agency to pay premium pay to an employee in a position "requiring him regularly to remain at, or within the confines of, his duty station during longer than ordinary periods of duty, a substantial part of which consists of remaining in a standby status rather than performing work." Rose J. Reiter and Rayford Guinn, B-215888, January 24, 1985. The Office of Personnel Management's (OPM's) implementing regulations, 5 C.F.R. 550.141-550.144, explain that the words "at, or within the confines, of his station" may mean the employee's living quarters only:

... when designated by the agency as his duty station and when his whereabouts is narrowly limited and his activities are substantially restricted. * * *

5 C.F.R. 550.143(b)(3).

Neither the claimant nor the agency indicates that the claimant's living quarters had been designated by the agency as the claimant's duty station or that the claimant's activities were substantially restricted. See John T. Teske, B-190369, February 23, 1978, and Glen W. Sellers, B-182207, January 16, 1975. It is not enough that the claimant was expected to be available to receive calls on specified weekends and holidays. See Charles F. Callis, B-205118, March 8, 1982. Indeed, an employee's activities are not considered to be "substantially restricted" even in instances where the employee is required to carry a beeper and where the employee is required to remain within a reasonable call back radius. Allen v. United States, 1 Cl.Ct. 649, 651-652, affirmed, 723 F.2d 69 (Fed. Cir. 1983), and Richard F. Briggs, B-215686, December 26, 1984. Accordingly, the claimant's request for standby duty pay is denied.

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.

¹ The claimant subsequently amended her claim to begin in March 1978 instead of 1972. However, all claims for periods prior to June 1991 are barred. OPM has no authority to disregard the provisions of the Barring Act, 31 U.S.C. 3702(b)(1), or to waive the six-year time limitation that it imposes. See Alfred L. Lillie, B-209955, May 31, 1983.

² When a supervisor was required to report to the Medical Center and perform work, the supervisor was paid overtime.