Office of Merit Systems Oversight and Effectiveness

Date: April 5, 2001
File Number: 00-0011
Matter of: [Claimants Name]

OPM Contact: Robert D. Hendler

The claimant, a former employee of the [agency name] ([shortened name]), asserts that she is entitled to back pay for working beyond her part-time schedule to fulfill the requirements of her position. She alleges that she was placed in an "on-call" status, that the nature of her work required regular off-hours work, and that her part-time work agreement shows that she was "on-call" and expected to work. The claimant implies that the page from the October 8, 1998, Merit Systems Protection Board hearing of her reduction-in-force (RIF) appeal and other supporting documents show that work was accomplished, and that her supervisors required additional work hours and required notification that the work was completed. For the reasons discussed herein, the claim is granted in part and denied in part.

The claimant filed four claims with the agency. Claim #1, filed on March 25, 1999, covers 24 1/2 hours of back pay covering 16 hours of approved training and 8 1/2 hours for work performed from her home. Claim #2, filed on July 27, 1999, covers 72 hours of back pay for training that she received, but did not include other benefits provided under law. Claim #3, filed on February 1, 2000, covers 229 hours of back pay for the period of February 2, 1997, through June 11, 1998. Claim #4, filed on February 7, 2000, covers 301 hours of back pay for the period of January 16, 1996, through December 17, 1996. The claimant submitted copies of training documents to support Claims #1 and #2. She provided copies of e-mails, a limited number of dial-in logs, and one travel voucher in support of Claims #3 and #4.

Information from the agency shows that the claimant occupied a Supervisory Computer Specialist, GS-334-14 position. At her request, her part-time work schedule was increased from 48 to 64 hours per pay period on April 3, 1994. On June 30, 1998, she was separated from the agency under RIF procedures.

Section 5542(a) of 5 U.S.C. provides for the payment of overtime or 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. Section 6101 of 5 U.S.C. makes agency heads responsible for establishing a basic administrative workweek for the agency, and 5 U.S.C. 3402 provides agencies with the authority to establish part-time career employment programs.

[Shortened name] Policy No. 340, dated April 27, 1987, Part Time Employment Program, requires that full-time employees must request conversion to part-time status in writing. The supervisor must approve requests for changes in the tour of duty of a part-time career employee. A revised policy issued June 1, 1994, defines part-time work as regularly scheduled work from 16 to 32 hours per week. It permits the [shortened name] Personnel Officer to authorize exceptions to the policy and procedures as may be necessary for the [shortened name] to carry out its mission.

[Shortened name] Policy No. 630 (November 1992) requires Office Heads to approve requests for compensatory leave (i.e., compensatory time) in advance. [Shortened name] Form "[acronym]-95-03," Request for Authorization for Overtime Work, permits immediate supervisors to request and justify overtime. Approval is vested in Office or Division Heads.

[Shortened name] Policy No. 551, Overtime and Compensatory Time Off (May 12, 1998), replaced sections of Policy No. 630. It requires "[acronym] Form 95-3" be used to document the request for overtime, the performance of authorized overtime, and submitted with the employee's time and attendance report. It requires that an employee on a part-time schedule working in excess of his or her regular tour, but 40 hours or less in a workweek will be compensated at the employee's regular basic rate of pay. That employee must complete a basic 40-hour workweek before earning overtime or compensatory time.

Baylor v. United States, 198 Ct. Cl. 331 (1972), provides standards for determining whether overtime was properly "ordered or approved." In this case, we will apply the same test to work performed beyond the claimant's regular part-time schedule but not performed in excess of 40-hours in a week. Baylor states that if there is a regulation specifically requiring overtime promulgated by a responsible management official, then this constitutes officially "ordered or approved." At the other extreme, if there is only "tacit expectation" that overtime is to be performed, this does not constitute official order or approval. Where the facts show that there is more than only a '"tacit expectation" that overtime be performed, such overtime has been found to be compensable as having been officially ordered or approved. Where the facts show that employees have been "induced" by their superiors to perform overtime work to effectively complete their assignments and due to the nature of their employment, this overtime has been held to have been "officially ordered or approved" and therefore compensable.

The claimant implies that her part-time schedule agreement constitutes a direct order to perform work to fulfill the requirements of her part-time position. We do not agree. The wording in the agreement identifies work beyond her authorized eight-hour days as "non-official work" including responding to emergency situations and e-mail correspondence. "Non-official work" is just that; work that is neither directly ordered nor approved. While the language may be ambiguous in some respects, it is clear that the claimant was not expected to be continuously available for and routinely engage in work during her non-work days.

The claimant also implies that she was "induced" to perform work to effectively complete her assignments. We do not agree. The claimant's February 6, 1996, e-mail shows that she assumed her work was voluntary: "I'm unpaid for today, however, came in in the event that there was some follow-up work to do . . .." A July 2, 1996, e-mail shows that the claimant was aware of compensatory and overtime issues in managing her subordinates: "Ron spent 36 additional hours here between Thursday and Sunday, and does not want compensatory time." While the claimant asked whether she was entitled to compensatory time on August 9, 1996; the existence of [shortened name] Policy No. 630; T&A procedures; and experience in controlling her own staff's hours of work do not support her assertion that her "unpaid" work hours were induced. Her June 16, 1998 e-mail shows that the claimant and her supervisor were aware that authorization was required to pay the appellant for work beyond her scheduled work hours: "The following was approved for comp time before [emphasis added] we found the policy . . .."

In his RIF appeal testimony, the supervisor agrees that the claimant performed work if she said that she did. The supervisor relied on the claimant to properly document that work and would have approved additional work time if the claimant had submitted it as part of the biweekly time and attendance. As a supervisor and someone trained as a time card certifier, we are not persuaded that the claimant failed to claim additional work hours because she was confused about the process.

The fact that the agency increased the claimant's hours of work at her request also undermines her implication that the work she documented would not have been approved had she followed established agency procedures. Employees who perform work under 5 U.S.C., cannot obligate the agency to pay for work that is not "ordered or approved." Therefore, we find that the claimant was not routinely "induced" to perform work. As discussed below, we find that she is entitled to backpay only for periods of work where she was expressly authorized to work. See B-182231, July 10, 1975; B-175275, April 6, 1976; B-188023, July 1, 1977; Ronald L. Barnhart, 68 Comp. Gen. 385 (1989); B-195655, April 10, 1980; and Morris Norris, 69 Comp. Gen. 17 (1989).

Claim #1: The claimant's e-mail exchanges of June 16, 1998, show that her supervisor authorized additional hours of work on February 19, 1998 (2 hours); March 20, 1998 (2 hours); May 1, 1998 (2 hours); May 27, 1998 (1 hour), and 1 1/2 hours of work during the week of June 6, 1998 (not attributed to specific dates). Training forms signed by authorizing officials show that she attended training on Tuesday, March 31 and Tuesday, May 12, 1998, her normal non-work day. She contests the [shortened name] assertion that she has received payment for this claim. We find the hours at issue in this claim were authorized. This claim is granted and the [shortened name] should appropriately compensate the claimant for these hours including accrued interest and other benefits authorized under 5 U.S.C. 5596.

Claim #2: The claimant contests the [shortened name] assertion that she has received payment for this claim in full. We find the 72 hours of work at issue in this claim were authorized. This claim is granted and the [shortened name] should appropriately compensate the claimant for these hours including accrued interest and other benefits authorized under 5 U.S.C. 5596.

Claim #3: A signed travel voucher shows that the claimant was in a work status on Tuesday, July 22, 1997, her normal non-work day. We find the eight hours of work at issue on this day were authorized. This portion of the claim is granted and the [shortened name] should appropriately compensate the claimant for these hours including accrued interest and other benefits authorized under 5 U.S.C. 5596. The record does not show that the other work at issue was ordered or approved. Therefore, the remainder of this claim is denied.

Claim #4: The record does not show that the work at issue was ordered or approved. Therefore, the claim is denied.

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 the U.S. Office of Personnel Management. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.