Office of the General Counsel

Matter of: [claimant]
Date: September 7, 2000
File Number: S004105

OPM Contact: Robert D. Hendler

The claimant, an employee of the [agency], asserts that he is entitled to compensatory time for travel hours to attend training sponsored by his agency. He is requesting 11 hours of compensatory time for travel on Sunday, December 5, 1999, from 8:00 AM Central Standard Time (CST) to 9:00 PM Eastern Standard Time (EST). He is also requesting compensatory time for the five hours of non-duty time travel on Friday, December 10, 1999, for travel beginning at 12:30 PM EST and ending at 10:00 PM CST. The claimant states that it is incongruous that a Federal agency will schedule meetings, training, or other Government sponsored work such that they require employees to donate uncompensated personal time to attend these functions. He further claims that it was disparate treatment based on the geographic location of the employee and the training site. For example, East Coast employees were required to donate less or no personal time compared to West Coast employees to attend training in Washington, DC. For the reasons discussed herein, the claim is denied.

Information from the agency shows that the claimant occupies a professional Fish and Wildlife Biologist, GS-401-12 position that is exempt from the overtime provisions of the Fair Labor Standards Act. The claimant attended training at the [name] Training Center (NCTC) in Sheperdstown, WV. [Acronym] is operated by [agency], and sets the training courses and times of the courses. The course on Listing of Endangered Species was a one-week course, from Monday through Friday. His specialty as an endangered species biologist requires this training.

We find that [agency] internal policies and procedures (FWS Manual, Part 225, 7.11B) adhere to the Senate Committee on Post Office and Civil Service explanation of the changes in the law relating to time in a travel status in the Federal Salary Act of 1967 (Public Law 90-206). The [agency] Manual states that every effort should be made to minimize travel by an employee during non-duty hours recognizing that periods of non-duty travel may be unavoidable.

Section 5543(a)(2) of title 5, United States Code (U.S.C.) provides for the granting of compensatory time to exempt employees equal to the amount of time spent in irregular or occasional overtime instead of being paid for that work under 5 U.S.C., 5542. Under that section, time spent in a travel status away from the employee's official duty station is only considered to be hours of work where, the travel (i) involves the performance of work while traveling, (ii) is incident to travel that involves the performance of work while traveling, (iii) is carried out under arduous conditions, or (iv) results from an event which could not be scheduled or controlled administratively, including travel by an employee to such an event and the return of such employee from such event to his or her official-duty station.

The claimant asserts that (iv) pertains to his travel since neither his supervisor's office nor he could control administratively the timing or location of the training. He also claims that in the past, he has traveled with [agency component] employees on weekends to be at a meeting location on Monday morning. They were paid and he was not. He cites Office of Personnel Management (OPM) Claim 60091800 as OPM having "asserted the agency correctly compensated an employee for travel during a scheduled non-work day."

The phrase "could not be scheduled or controlled administratively" refers to the ability of an executive agency, as define in 5 U.S.C. 105, to control the event that necessitates an employee's travel. The control is assumed to be the agency's whether the agency has sole control or the control is achieved through a group of agencies acting in concert, such as a training program or conference sponsored by a group of agencies, or sponsored by one in the interest of all, or through several agencies participating in an activity of mutual concern. Because the claimant's training was controlled by his agency, the travel did not result from an event that could not be scheduled or controlled administratively. See Comptroller General Decision, B-193127, May 31, 1979; Perry L. Golden and Wayne Woods, 66 Comp. Gen. 620 (1987); Morris Norris, 69 Comp. Gen. 17 (1989).

OPM claim 60091800 covers overtime compensation for standby duty. It does not address the basis for the agency's payment for travel time and, thus, is not dispositive in this case. We note that regulations implementing the overtime provisions of the Fair Labor Standards Act provide for payment of travel time during hours on nonworkdays that correspond to an employee's regular work hours (5 CFR 551.422(a)(4)). As an exempt employee, the claimant is not covered by these regulations.

The claimant's agency must compensate employees in accordance with law, rule, regulations, and established precedents. If the claimant believes that other employees traveled to training under circumstances so similar to his that they warrant the same pay treatment, he may pursue this matter by writing to his agency's human resources management headquarters. He should specify the precise organizational location of the employees and the circumstances of the travel. If the circumstances are found to be basically the same as this case, or warrant similar application of the controlling law, rules, regulations and precedents, the agency must take corrective action to be consistent with this decision.

OPM does not conduct investigations or adversary hearings in adjudicating claims, but relies on the written record presented by the parties. See Frank A. Barone, B-229439, May 25, 1988. Where the agency's factual determination is reasonable, we will not substitute our judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, Mar. 15, 1982, as cited in Philip M. Brey, supra.

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.

Distribution 

Paul J. Barrett, Ph.D.
U.S. Fish and Wildlife Service
300 W. Congress Street
Tucson, AZ 85701

Esther M. Pringle
Personnel Officer
U.S. Department of the Interior
Fish and Wildlife Service
P.O. Box 1306
Albuquerque, NM 87103