Washington, DC

U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code

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Carlos A. Torrico
Acting Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


12/05/2017

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Date

Introduction

On November 3, 2015, OPM received an FLSA claim from Brian P. Niland to retroactively correct his FLSA overtime (OT) pay and compensatory time for travel (CTT) for six instances of agency-authorized travel for training occurring between August 2013 and September 2015.  During this time, the claimant served as an Industrial Hygienist, GS-690-12, with the Industrial Hygiene Department, Commander, Medical Services Directorate, Department of the Navy (DON), Portsmouth Naval Ship Yard, Portsmouth, New Hampshire.  We have accepted and decided this claim under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.)

Background and general issues

In his original claim, the claimant asserts his agency failed to interpret and apply title 5 and FLSA regulations correctly, resulting in the agency’s failure to pay him the full amount of FLSA OT and CTT owed him for the aforementioned instances of agency-approved travel for training.  He further asserts his agency’s interpretation and implementation of FLSA regulations constitutes a willful violation of the FLSA.  In their response to OPM’s agency administrative report (AAR) dated January 12, 2016, the agency acknowledged the claimant’s work was officially designated FLSA non-exempt during the claim period.  However, they assert the FLSA nonexempt designation was incorrect and state the claimant’s duties and responsibilities meet the learned professional exemption criteria detailed in 5 CFR 551.208, based solely on work described in his official position description (PD) number W1214.  In response to the agency’s assertion concerning the FLSA status of the claimant’s work, the claimant asserts his official PD overstates the technical complexity, independence, and authority of his actual work, which he claims does not meet the learned professional exemption criteria.

Evaluation

Period of the Claim

Section 551.702 of title 5, Code of Federal Regulations (CFR), provides that all FLSA claims filed after June 30, 1994, are subject to a two-year statute of limitations (three years for willful violations).  A claimant must submit a written claim to either the employing agency or to OPM in order to preserve the claim period.  The date the agency or OPM receives the claim is the date which determines the period of possible back pay entitlement.  On October 15, 2015, the claimant filed a formal FLSA claim with his agency regarding his travel on September 13 and 18, 2015.  Subsequently, on November 3, 2015, OPM received an FLSA claim which not only cited the two September 2015 instances of travel, but also included four additional dates of travel on August, 11, 2013, March 2 and 8, 2014, and February 5, 2015.  However, although the various instances of travel identified in both claims were preserved on two different filing dates, all of those dates identified in the claim (with the exception of August 11, 2013 addressed later in this decision) still fall within the two-year statute of limitations, i.e., the claim period for the September 2015 dates commences on October 15, 2013, and the claim period for the remaining instances of travel commences on November 3, 2013.

Willful Violation

The claimant asserts his agency willfully violated the OT provisions of the FLSA by limiting OT for each day to eight hours, not compensating him for travel time claimed, and for not compensating him for various meal times claimed during six separate instances of travel for training from August 11, 2013, to September 18, 2015.  Therefore, we must determine if the agency’s actions meet the criteria for “willful violation,” which is defined in 5 CFR 551.104 as follows:

Willful violation means a violation in circumstances where the agency knew that its conduct was prohibited by the Act or showed reckless disregard of the requirements of the Act.  All of the facts and circumstances surrounding the violation are taken into account in determining whether a violation was willful.

A willful violation requires that either the agency knew its conduct was prohibited or showed reckless disregard of the requirements of the FLSA.  The regulation further instructs that all circumstances surrounding the violation must be taken into account.  After careful review of the information provided by the claimant and his agency, we find the command had incorrectly designated the claimant’s work as FLSA exempt and misinterpreted and misapplied several Federal regulations associated with OT and CTT.  However, we find the agency’s actions, although clearly incorrect, were not deliberate and do not meet the criteria for willful violation as defined in 5 CFR 551.104.  Since no willful violation of the FLSA occurred, the claim is subject to a two-year statute of limitations as previously discussed above.  Therefore, the August 11, 2013, instance of travel is time barred and any issues associated with this instance of travel cited by the claimant will not be considered in this decision.

Position Information

The claimant’s official PD describes various complex, scientific, professional industrial hygiene (IH) processes and procedures and affords him the discretion and independence necessary to perform the work described.  However, after a careful review, we find he does not actually perform the complex, scientific, professional IH processes and procedures or exercise the level of discretion and independence described in his official PD.  The claimant is one of four employees providing IH program support services to 32 naval commands and facilities within New Hampshire, Maine, and Vermont which enable activities to provide safe and healthful working environments for all personnel and help supervisors and managers meet Occupational Safety and Health Administration (OSHA), DOD, U.S. Navy, and other Federal, State, and local laws, regulations, and requirements.

The claimant follows clearly defined guidance, methods, and processes (i.e., Industrial Hygiene Field Operations Manual (IHFOM) procedures and OSHA regulations) in order to perform routine safety walk-throughs and on-site surveys to observe a variety of work environments (e.g., offices, shops, and vessels) and conditions (e.g., light and noise levels) and to gather information, data, and a variety of samples (e.g., air and particulate matter) used to identify possible violations of current IH and safety laws, regulations, and requirements.  He records data and observations, provides written recommendations consisting of information obtained through routine observation and operation of standard testing equipment (e.g., air samplers and noise dosimeters), and exercises basic interviewing skills which require little to no scientific and/or professional knowledge and ability to perform.  For example, samples obtained by the claimant are sent to the Navy’s Comprehensive Industrial Hygiene Laboratory (CIHL) for analysis as per specific instructions found in IHFOM CH3, Oct. 2016, Sampling Procedures.  After receiving test results from CIHL, the claimant incorporates the aforementioned results into standard reports which are reviewed, corrected, approved, and electronically signed by his supervisor prior to distribution to shop supervisors, and provides a verbal explanation of the test results to shop managers and supervisors upon request.

The claimant follows available guidance and standard operating procedures when conducting inspections and performing interviews with employees experiencing potential exposure to hazardous materials or conditions.  He is responsible for uploading information into the exposure monitoring plan (EMP) which tracks levels of employee exposure to various toxic materials (e.g., lead based paint or manganese exposure from welding rods).  This information is used to help the facility’s Occupational Health (OH) Department determine the possible need for additional safety measures (e.g., personal protective equipment or medical intervention).  The claimant monitors employee exposure levels, adding employees to the list who exceed and removing employees who fall below 50 percent of the acceptable level of exposure.  He also follows available written and verbal guidance to perform investigations of work-related health problems that arise among employees and recommends corrective measures and medical surveillance of exposed personnel.

In reaching our FLSA decision, we have carefully reviewed all information gained through separate interviews with the claimant and his supervisor as well as documents and information provided by the claimant and his agency.

FLSA coverage

Sections 551.201 and 551.202 of title 5 CFR require an employing agency to designate an employee FLSA exempt only when the agency correctly determines that the employee meets one or more of the exemption criteria.  In all exemption determinations, the agency must observe the following principles: (a) Each employee is presumed to be FLSA nonexempt.  (b) Exemption criteria must be narrowly construed to apply only to those employees who are clearly within the terms and spirit of the exemption.  (c) The burden of proof rests with the agency which asserts the exemption.  (d) If there is a reasonable doubt as to whether an employee meets the criteria for exemption, the employee should be designated FLSA nonexempt.  (e) The designation of a position’s FLSA status ultimately rests on the duties actually performed by the employee.

The claimant’s agency asserts his work meets the learned professional exemption criteria of the FLSA detailed in 5 CFR 551.208, based solely on the work described in his official PD.  However, they failed to compare the claimant’s actual work to the FLSA exemption criteria detailed in 5 CFR 551, as required in 5 CFR 551.202(e).  After a careful review of the claimant’s actual work, we agree with the agency’s determination his work meets none of the other exemption criteria detailed in 5 CFR 551.  However, we disagree with the agency’s assertion the claimant’s work meets the learned professional exemption criteria.  Therefore, we have compared the claimant’s work solely to the learned professional exemption criteria.

Learned Professional Exemption Criteria

To qualify for the learned professional exemption, an employee’s primary duty must be the performance of work requiring knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and must include the following three elements:

(1) The employee must perform work requiring advanced knowledge.  Work requiring advanced knowledge is predominantly intellectual in character and includes work requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical or physical work.  An employee who performs work requiring advanced knowledge generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances.  Advanced knowledge cannot be attained at the high school level;

(2) The advanced knowledge must be in a field of science or learning which includes the traditional professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy, and other similar occupations that have a recognized professional status as distinguished from the mechanical arts or skilled trades where in some instances the knowledge is of a fairly advanced type, but is not in a field of science or learning; and

(3) The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction which restricts the exemption to professions where specialized academic training is a standard prerequisite for entrance into the profession.

The Industrial Hygiene (IH), GS-690, series is a professional series which is not specifically included under the learned professional exemption criteria detailed in 5 CFR 551.208(c) through (m).  However, Industrial Hygienists may still be considered learned professionals under 5 CFR 551.208(b) which states:

“The areas in which the professional exemption may be applicable are expanding.  As knowledge is developed, academic training is broadened and specialized degrees are offered in new and diverse fields, thus creating new specialists in particular fields of science or learning.  When an advanced specialized degree has become a standard requirement for a particular occupation, that occupation may have acquired the characteristics of a learned profession.”

After a thorough review of the academic training and specialized degrees currently available for IH, we find the field of IH meets the definition of “profession” as described in 5 CFR 551.208.  Industrial Hygienists anticipate, recognize, evaluate, prevent, and control environmental factors or stresses arising in or from the workplace which may cause sickness, impaired health and well-being, or significant discomfort among workers or citizens of the community.  They use a broad range of scientific equipment and methods to analyze, identify, and measure human exposure to a wide variety of chemical, physical, ergonomic, or biological contaminants and conditions.  Due to job market demands for individuals with specific training and certification in the field of IH, undergraduate and graduate degrees in IH are currently offered at several colleges and universities in the United States.  In addition, professional organizations such as the American Industrial Hygiene Association and the American Board of Industrial Hygiene offer course accreditation, professional certification (e.g., Certified Industrial Hygienist), and continuing education programs for sustaining certifications.  Based on this criteria, IH meets the definition of a “profession” as stated in 5 CFR 551.208 (b).

However, in contrast to professional IH duties and responsibilities, the claimant spends approximately 70 percent of his time providing routine technical support for his command’s IH program (e.g., maintaining IH data storage files, drafting reports and correspondence) which exceeds the level required of a primary duty (i.e., typically 50 percent of an employee’s work per 5 CFR 551.104) and approximately 30 percent of his time providing general administrative support.  Thus, the claimant’s routine technical support work clearly qualifies as his primary duty.

In comparing the claimant’s primary duty to the learned professional exemption criteria, we find his primary duty does not require the use of advanced knowledge of a predominantly intellectual character to analyze, interpret, or make deductions from varying facts or circumstances.  Instead, his primary duty consists of routine technical and administrative support work, such as using standard testing equipment (e.g., air samplers, noise dosimeters) to obtain samples and readings; employing basic observation techniques to identify specific conditions (e.g., poor visibility, loud noises); and utilizing basic interviewing skills to gather routine information, such as length of exposure to conditions or contaminants, etc.  Further, the claimant’s primary duty does not require regular exercise of discretion and judgment.  Instead, he works within the parameters of clearly established guidance and is not allowed to deviate from established guidance to respond to new, unusual, or controversial issues or conditions without the expressed approval of his supervisor.  Further, all written work produced by the claimant must be reviewed and signed prior to distribution by his supervisor, who is the only certified Industrial Hygienist in his department.  In addition, although the claimant possesses advanced scientific knowledge obtained through prolonged educational instruction (i.e., bachelor’s degree in microbiology), he does not use the advanced scientific knowledge obtained during his bachelor’s degree in the performance of his work.

Decision on FLSA Coverage

The actual work performed by the claimant does not meet the learned professional exemption criteria detailed in 5 CFR 551.208.  Therefore, the work is nonexempt and covered by the overtime pay provisions of the FLSA.

FLSA and CTT Evaluation

The claimant asserts he is owed 19.25 hours of overtime pay for three instances of agency-approved travel for training (i.e., Sunday, March 2, 2014; Saturday, March 8, 2014; and Saturday, September 13, 2015) and 16.75 hours of CTT for 5 instances of agency-approved travel for training (i.e., Sunday, March 2, 2014; Saturday, March 8, 2014; Thursday, February 5, 2015; Saturday, September 13, 2015; and Friday, September 18, 2015) from March 2014 through September 2015.

He requests the following compensation for agency-approved travel for training:

• 7 hours FLSA OT for travel on Sunday, March 2, 2014, from 7:30 a.m. EST to 2:30 p.m. EST, and .75 hour CTT from 6:15 a.m. to 7:30 a.m. EST.
• 5.75 hours FLSA OT for travel on Saturday, March 8, 2014, from 7:30 a.m. EST to 1:30 p.m. EST and 2.75 hours CTT from 4:45 a.m. to 7:30 a.m. EST.
• 2 hours CTT for travel on Thursday, February 5, 2015, from 3:00 p.m. EST to 5:00 p.m. EST.
• 6.5 hours FLSA OT for travel on Saturday, September 13, 2015, from 6:30 a.m. to 1:15 p.m. EST and 4.25 hours CTT from 2:45 a.m. to 7:30 a.m. EST.
• 7 hours CTT for travel on Saturday, September 18, 2015, from 3:00 p.m. to 11:00 p.m. EST.

As a DON employee, the claimant was required by his agency to attend courses and training seminars each year to satisfy agency training and education requirements.  These courses and seminars varied in duration and locations and often required him to travel on Sundays (non-workdays), since the courses began on Monday mornings, and return on Saturdays (non-workdays), since courses often ended on Friday afternoons.  DON policy requires an employee to submit requests for training and related travel to the agency well in advance of each training event for consideration and approval.  Once training has been approved, the agency is responsible for arranging transportation to and from the training for the employee.  The claimant’s regularly scheduled administrative workweek is Monday through Friday, during which he typically works a compressed schedule.  However, according to e-mail communications with the claimant and his supervisor, as well as agency and payroll records, we find his regular work hours for the pay periods associated with each training event were adjusted in advance to correspond with the hours of each training (i.e., 7:30 a.m. to 4:00 p.m. for the March 2014, training event and 6:30 a.m. to 3:00 p.m. for the February and September 2015 training events).  Since adjusting the claimant’s normal hours of work to correspond with those of any training attended is an agency policy which was known in advance of the actual travel, these hours have been used to determine any FLSA and CTT hours which may be owed to the claimant for each instance of travel.  For each instance of travel, the claimant drove his privately owned vehicle (POV) from his home to the C&J bus terminal in Portsmouth, New Hampshire, where he parked and rode the C&J bus to Logan Airport (AP) in Boston, Massachusetts, where he departed for, and returned from each training during the claim period.  Upon his return to Logan AP after each training, he boarded a C&J bus and traveled to their parking lot to retrieve his POV for the commute back to his residence.  His normal home-to-work and work-to-home commute took the same amount of time as his home-to-C&J terminal and C&J terminal-to-home commute (i.e., .5 hour).

In accordance with 5 USC 551.401, (a), all time spent by an employee performing an activity for the benefit of an agency and under the control or direction of the agency is “hours of work.”  Such time includes:

(1) Time during which an employee is required to be on duty;

(2) Time during which an employee is suffered or permitted to work; and

(3) Waiting time or idle time which is under the control of an agency and which is for the benefit of an agency.

For the purposes of determining hours of work in excess of 8 hours in a day under 5 USC 551.401(f), agencies shall credit hours of work under §410.402 of this chapter, part 532 of this chapter and 5 U.S.C. 5544, and part 550 of this chapter, as applicable.

In addition, as per 551.401(g), for the purpose of determining hours of work in excess of 40 hours in a week or in excess of another applicable overtime work standard under section 7(k) of the Fair Labor Standards Act, agencies shall credit hours of work under §410.402 of this chapter, part 532 of this chapter and 5 U.S.C. 5544, and part 550 of this chapter, as applicable, that will not be compensated as hours of work in excess of 8 hours in a day, as well as any additional hours of work under this part.

As per 551.401(h), for the purpose of determining overtime pay for work in excess of 40 hours in a workweek under this part, time spent in a travel status is hours of work as provided in §551.422 of this part and §550.112(g) of this chapter or 5 U.S.C. 5544, as applicable.

As per 5 CFR 551.501(a), an agency shall compensate a non-exempt employee for all hours of work in excess of 8 in a day or 40 in a workweek at a rate equal to one and one half times the employee’s hourly regular rate of pay.

Depending on the FLSA exemption status of an employee's position, time spent traveling is considered compensable hours of work as described in both 5 CFR 551.422(a) and 5 CFR 550.112(g).

In accordance with 5 CFR 551.422(a), time spent traveling by non-exempt Federal employees is considered hours of work if they are required to:

(1) travel during regular working hours,

(2) drive a vehicle or perform other work while traveling,

(3) travel as a passenger on a one-day assignment away from the official duty station, and

(4) travel as a passenger on an overnight assignment away from the official duty station during hours on non-workdays that correspond to the employee's regular working hours.

As per 5 CFR 551.422(b), an employee who travels from home before the regular workday begins and returns home at the end of the workday is engaged in normal “home to work” travel; such travel is not hours of work.  When an employee travels directly from home to a temporary duty location outside the limits of his or her official duty station, the time the employee would have spent in normal home to work travel shall be deducted from hours of work as specified in paragraphs (a) (2), and (a) (3), of this section.

As per 5 CFR 551.411(a), workday means the period between the commencement of the principal activities that an employee is engaged to perform on a given day, and the cessation of the principal activities for that day.  All time spent by an employee in the performance of such activities is hours of work.  The workday is not limited to a calendar day or any other 24-hour period.  (b) Any rest period authorized by an agency that does not exceed 20 minutes and that is within the workday shall be considered hours of work.  (c) Bona fide meal periods are not considered hours of work, except for on-duty meal periods for employees engaged in fire protection or law enforcement activities who receive compensation for overtime hours of work under 5 U.S.C. 5545(c)(1), or (c)(2), or 5545b.

Both FLSA nonexempt and exempt employees covered by title 5, U.S.C., fall under the provisions of 5 CFR 550.112(g).  In other words, travel time that is not compensable under section 551.422(a) may be compensable under section 550.112(g).  This section provides that time in a travel status away from the official duty station is hours of work if the travel:

(1) is within an employee's regularly scheduled administrative workweek,

(2) involves the performance of work while traveling,

(3) is incident to travel that involves the performance of work while traveling,

(4) is carried out under arduous and unusual conditions, or

(5) results from an event that could not be scheduled or controlled administratively.

The phrase "could not be scheduled or controlled administratively" refers to the ability of an Executive agency as defined 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.  When an institution outside the Government conducts a training event for which attendance is mandatory, unless it is for the sole benefit of the Government, it is an event that cannot 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); William A. Lewis, et al, 69 Comp. Gen. 545 (1990).

Under 5 CFR 550.1401, OPM describes regulations implementing 5 U.S.C. 5550b, which establishes a separate type of compensatory time off.  Subject to the conditions specified in this subpart, an employee is entitled to earn, on an hour-for-hour basis, compensatory time off for time in a travel status away from the employee’s official duty station when the travel time is not otherwise compensable (i.e., under sections 551.422(a) or 550.112(g)).

Subject to the conditions specified in 5 CFR 550.1404(a), an agency must credit an employee with compensatory time off for time in a travel status if:

(1) The employee is required to travel away from the official duty station; and

(2) The travel time is not otherwise compensable hours of work under other legal authority.

In accordance with 5 CFR 550.1404(b) (1), time in a travel status includes the time an employee actually spends traveling between the official duty station and a temporary duty station, or between two temporary duty stations, and the usual waiting time that precedes or interrupts such travel, subject to the exclusion specified in paragraph (b) (2), of this section and the requirements in paragraph (c), (d), and (e), of this section.  Time spent at a temporary duty station between arrival and departure is not time in a travel status.  Time in a travel status ends when the employee arrives at the temporary duty worksite or his or her lodging in the temporary duty station, wherever the employee arrives first.  Time in a travel status resumes when an employee departs from the temporary duty worksite or his or her lodging in the temporary duty station, from whichever the employee departs last.  Travel time in connection with an employee's permanent change of station is not time in a travel status.  Determinations regarding what is creditable as “usual waiting time” are within the sole and exclusive discretion of the employing agency.  Section (b)(2) “states, if an employee experiences an extended (i.e., not usual) waiting time between actual periods of travel during which the employee is free to rest, sleep, or otherwise use the time for his or her own purposes, the extended waiting time is not creditable as time in a travel status.”  In accordance with CFR 550.1404(c)(1), “[i]f an employee is required to travel directly between his or her home and a temporary duty station outside the limits of the employee's official duty station, the travel time is creditable as time in a travel status if otherwise qualifying under this subpart.  However, the agency must deduct from such travel hours the time the employee would have spent in normal home-to-work or work-to-home commuting.”

According to 5 CFR 550.1404 (d), “[i]f an employee is required to travel between home and a transportation terminal (e.g., airport or train station) within the limits of his or her official duty station as part of travel away from that duty station, the travel time outside regular working hours to or from the terminal is considered to be equivalent to commuting time and is not creditable time in a travel status.”

As per 5 CFR 550.1405, the employing agency must credit an employee with compensatory time off for creditable time in a travel status as provided in § 550.1404.

Based on the aforementioned regulations, we have evaluated each instances of travel occurring during the claim period to determine if the claimant is owed FLSA OT and/or CTT by his agency.

Sunday, March 2. 2014

The claimant left his residence at 6:15 a.m. EST, in route to the agency-sponsored Mishap Investigation (Ashore) training at Camp Lejeune, North Carolina, and arrived at the C&J bus station at approximately 6:45 a.m. EST, and arrived at his temporary lodging at Camp Lejeune at approximately 2:30 p.m. EST.  The claimant asserts he did not stop for a bona fide meal period during this instance of travel and the agency does not disagree.  He asserts he is owed 7 hours FLSA OT and .75 hour CTT for this instance of travel.

According to information and documents provided by the claimant as well as payroll records provided by the claimant’s agency, we find the claimant worked a full 40-hour week (i.e., Monday, March 3, 2014, to Friday, March 7, 2014, from 7:30 a.m. to 4:00 p.m. EST).  Therefore, as per 5 CFR 551.422(a) (4), the 7 hours of work performed during normal workhours on Sunday, March 2, 2014, (i.e., 7:30 a.m. to 2:30 p.m. EST) are credited as OT under the FLSA.

We find 5 CFR 550.1404(a) (1), is applicable since the claimant was required to travel away from his official duty station.  In addition, we find (a)(2), is applicable since a portion of his travel from the C&J bus station to the Logan AP, (i.e., from 6:45 a.m. to 7:30 a.m., EST or .75 hour) is not otherwise compensable under other legal authority.  Therefore, we find the claimant is owed .75 hour CTT for this instance of travel.  However, we have deducted the normal work-to-home commute time (i.e., .5 hour) in accordance with 5 CFR 551.1404(c) (1) and (d).

After a thorough review of the information provided to us by the claimant and his agency, and comparison of this information to all applicable regulations, we credit the claimant with 7 hours FLSA OT and .75 hour CTT for this instance of travel for a total of 7.75 hours.  The total amount of CTT credited to the claimant by his agency for this instance of travel was 8 hours.  Thus, we find the agency over compensated the claimant .25 hour CTT.

The claimant asserts he did not officially request CTT for this instance of travel as required in 5 CFR 550.1405, and the agency does not disagree.  Nevertheless, according to payroll records provided by the agency and documents and statements provided by the claimant, we find the claimant’s agency offered 8 hours CTT intended to cover all CTT and FLSA OT claims made by the claimant for this instance of travel, which the claimant accepted and used.  However, the agency’s requirement that the claimant receive payment through use of compensatory time off was erroneous and does not nullify the claimant’s entitlement to FLSA overtime pay.  Thus, the claimant is due FLSA overtime pay for all applicable hours worked during this instance of travel as provided for under 5 CFR part 551 subpart E and any interest as required under 5 CFR 550.805 and 550.806.  To the extent that the overtime hours in question were credited as compensatory time off hours and subsequently used, the monetary value of such used compensatory time off must be deducted from the amount of FLSA overtime pay that is owed to the claimant.  See, e.g., 59 Comp. Gen. 246 (1980); see also Abramson, et el. v. United States, 42 Fed. Cl. 326, (1998); Matter of Richard F. Briggs, B-215686 (1984).

Therefore, because the claimant was paid 8 hours CTT, he was fully compensated for the travel which occurred prior to the beginning of his regular work hours for this instance of travel.  However, the agency owes the claimant the difference between the CTT paid and the FLSA OT owed for the seven hours of travel which occurred during regular work hours on Sunday, March 2, 2014, which was a non-work day.

Saturday, March 8, 2014

The claimant departed his temporary lodging at Camp Lejeune, North Carolina, at approximately 4:45 a.m. EST.  The claimant asserts he took a 30 minute, bona fide meal break during an extended layover at the Charlotte/Douglas International AP from approximately 8:30 a.m. to 9:00 a.m. EST, and his agency does not disagree.  The claimant’ travel ended when he arrived at his POV at approximately1:45 p.m. EST.  He reached his residence at approximately 2:15 p.m. EST, after experiencing a normal commute.  The claimant asserts he is owed 5.75 hours FLSA OT and 2.75 hours CTT for this instance of travel.

According to agency pay roll records and documents and information we received from the claimant, we find he worked a full 40-hour week (i.e., Monday, March 3, 2014 to Friday, March 7, 2014) during the first week of pay period #6, 2014.  Therefore, in accordance with this guidance and 5 CFR 551.422(a)(4), all work performed during normal workhours on Saturday, March 8, 2014, (i.e., 7:30 a.m. to 1:45 p.m. EST, or 6.25 hours for this instance of travel) would be credited as FLSA OT.

We find 5 CFR 551.411(c), is applicable to this instance of travel because the claimant states he stopped for a bona fide meal period from 8:30 a.m. to 9:00 a.m. EST, during this instance of travel.  Therefore, since the bona fide meal period took place during normal work hours, .5 hour must be deducted from the total FLSA OT and/or CTT credited for this instance of travel.

We also find 5 CFR 551.422 (a)(4) is applicable because the claimant traveled as a passenger on an overnight assignment away from the official duty station during hours on non-workdays that correspond to his regular workhours.  The claimant’s regular work hours during this instance of travel were from 7:30 a.m. to 4:00 p.m., Monday through Friday.  He traveled a total of 6.25 hours on Saturday, March 8, 2014.  Therefore, after deducting the .5 hour bona fide meal period, the claimant is credited with 5.75 hours FLSA OT for this instance of travel.

In addition, we find 5 CFR 550.1404(a)(1), is applicable because the claimant was required to travel away from his official duty station; section (a)(2), is applicable because a portion of his travel occurring prior to the beginning of normal work hours during this instance of travel (i.e., from 4:45 a.m. to 7:30 a.m. EST, or 2.75 hours) and is not otherwise compensable under other legal authority; section (b)(1), is applicable as the claimant was in “travel status” from the time he left his temporary duty station at 4:45 a.m. till he arrived at his POV at the C&J bus station parking lot at 1:45 p.m. EST; and section (b)(2), is applicable because the claimant experienced a bona fide meal period (i.e., from 8:30 a.m. to 9:00 a.m., or .5 hour) which must be deducted as per 5 CFR 551.411(c).  Therefore, we find the agency owes the claimant 5.75 hours FLSA OT and 2.75 hour CTT for this instance of travel for a total of 8.5 hours.

As with the March 2, 2014, instance of travel, the claimant asserts he did not officially request CTT for this instance of travel as required in 5 CFR 550.1405.  Nevertheless, like the March 2, 2014, instance of travel, we find he accepted and used eight hours CTT for this instance of travel.

However, the agency’s requirement that the claimant receive payment through use of compensatory time off was erroneous and does not nullify the claimant’s entitlement to FLSA overtime pay.  Thus, the claimant is due FLSA overtime pay for all hours worked during the claim period and forward as provided for under 5 CFR part 551 subpart E and any interest as required under 5 CFR 550.805 and 550.806.  To the extent that the overtime hours in question were credited as compensatory time off hours and subsequently used, the monetary value of such used compensatory time off must be deducted from the amount of FLSA overtime pay that is owed to the claimant.  See, e.g., 59 Comp. Gen. 246 (1980); see also Abramson, et el. v. United States, 42 Fed. Cl. 326, (1998); Matter of Richard F. Briggs, B-215686 (1984).

Therefore, because the claimant’s agency offered, and the claimant accepted and used 8 hours CTT for this instance of travel, he was fully compensated for the 2.75 hours of travel which occurred prior to the beginning of his regular work hours.  However, the agency owes the claimant the difference between the CTT paid and the FLSA OT earned for the 5.75 hours of travel which occurred during regular work hours on a non-work day.

Thursday, February 5, 2015

The claimant made no claim for either FLSA OT or CTT for his Monday, February 2, 2015, instance of travel to attend the agency-authorized Defense Occupational and Environmental Health Readiness System Embedded Graphical User Interface Team conference and training since both he and his agency assert he was fully compensated for this instance of travel and, after a thorough review of documents and information provided by both the claimant and his agency (e.g., payroll records, e-mails), we concur.  Therefore, it is neither necessary nor appropriate to further review this instance of travel.  However, the claimant asserts he was not fully compensated for his return travel from aforementioned agency-authorized training.

The Thursday, February 5, 2015, instance of travel began at approximately 8:30 a.m. EST, when the claimant left his temporary lodging at the Naval Station, Norfolk, Virginia and ended when he arrived at his POV at approximately 5:00 p.m. EST.  He experienced his normal work to home commute (i.e., .5 hour) after picking up his POV.  The claimant asserts he did not experience a bona fide meal period for this instance of travel, and his agency does not disagree.  The claimant’s regularly scheduled work hours were from 6:30 a.m. to 3:00 p.m. EST for this instance of travel.  The claimant asserts he is owed 2 hours CTT for this instance of travel.

According to agency pay roll records and documents and information we received from the claimant, we find he worked a full 40-hour week (i.e., Monday, February 2, 2015 to Friday, February 6, 2015) during the first week of pay period #2, 2015.  Therefore, in accordance with 5 USC 551.401(f) and 5 CFR 551.422(a) (4), all work performed in excess of 8 hours on Thursday, February 5, 2015, would be credited as FLSA OT.  However, as previously stated, his agency compensated him for working a 40-hour week, which included compensation for working a full 8-hour day on Thursday, February 5, 2015.  We also find, although the agency credited the claimant for a regular 8-hours workday (6:30 a.m. to 3:00 p.m. EST) during this instance of travel, he did not perform work or begin his travel until 8:30 a.m. EST.  Thus, the claimant was paid 2 hours regular pay (e.g., 6:30 a.m. to 8:30 a.m. EST) he did not earn (i.e., personal time).  Consequently, the claimant owes the agency 2 hours leave to cover his personal time from 6:30 a.m. to 8:30 a.m. EST, which fully accounts for this 8 hour workday.  However, since his travel ended at 5:00 p.m. EST, which is 2 hours beyond the conclusion of his normal work day (i.e., 3:00 p.m. EST), his total travel for this day exceeded his normal 8 hour workday by 2 hours (i.e., 3:00 p.m. to 5:00 p.m. EST).  Thus, the agency owes the claimant 2 hours FLSA OT for this instance of travel.

Sunday, September 13, 2015

The claimant left his residence and, after a normal home-to-work commute (i.e., .5 hour), arrived at the C&J bus terminal at approximately 3:15 a.m. EST, in route to attend the American Conference of Governmental Industrial Hygienist training in Sharonville, Ohio, and arrived at his temporary lodging in Sharonville, Ohio, at approximately 2:00 p.m. EST.  The claimant states he did not take a bona fide meal break during this instance of travel, and his agency does not disagree.  In his original claim, the claimant asserts his agency owes him 6.5 hours FLSA OT and 3.25 hours CTT based on his belief his regularly scheduled workhours were from 7:30 a.m. to 4:00 p.m. EST, during this instance of travel.  However, we find his regularly scheduled workhours during the aforementioned training was actually from 6:30 a.m. to 3:00 p.m. EST, based on documents and information provided by both the claimant and his agency.  Therefore, we have used this work schedule when making determinations for this instance of travel.

We find 5 CFR 551.422 (a) (4), is applicable because the claimant traveled as a passenger on an overnight assignment away from the official duty station during hours on a non-workday that correspond to his regular workhours (i.e., 6:30 a.m. to 3:00 p.m. EST).  In addition, the agency credited the claimant with having worked 40 hours during the week of ACGIH training.  Therefore, any time spent traveling during regular workhours on Sunday, September 13, 2015, are credited as FLSA OT (i.e., 6:30 a.m. to 2:00 p.m. EST, or 7.5 hours).

We also find 5 CFR 550.112(g) (2) (iv), is applicable for the September 13, 2015, instance of travel as the training event (i.e., Fundamentals in Industrial Ventilation & Practical Applications of Useful Equations) was sponsored by the American Conference of Government Industrial Hygienists (ACGIH).  According to documents associated with the agency’s career development program (i.e., NAVEDTRA 10076A, OPNANINST 5100.23G, and the IH Self-Assessment Checklist), the claimant is required to complete four continuing education units (CEUs) each year, and is allowed to select from courses provided by his agency, other Federal agencies, and other approved sources outside the Federal government.  ACGIH is a non-profit professional organization, headquartered in Cincinnati, Ohio, whose goal is to advance worker protection by providing training and education for all private, State, and Federal IH employees and is not under the administrative control of the claimant’s agency.  In addition, according to the claimant’s individual development plan for 2015, and statements obtained from his supervisor, we find his agency considered the ACGIH training to be mandatory because it provided subject-matter training regarding ventilation systems which the claimant’s supervisor felt was important to the IH program (e.g., ventilation systems) and which he had been unable to provide since 2012.

Therefore, we find the ACGIH training was not under the administrative control of the agency and the claimant was required by his agency to attend the ACGIH training.  This meets the requirements of 5 CFR 550.112 (g)(2)(iv), as defined in 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); William A. Lewis, et al, 69 Comp. Gen. 545 (1990).  Thus, 5 CFR 550.112 (g) (2) (iv), is applicable as all hours spent traveling to and from the ACGIH training is considered compensable hours of work.  Since the claimant worked a full 40-hours during the second week of pay period #18, 2015, which coincided with the ACGIH training (i.e., from Monday, September 14, 2015, to Friday, September 17, 2015), any hours worked during normal work hours during this instance of travel would be considered FLSA OT.  Therefore, the 7.5 hours of travel occurring from 6:30 a.m. to 2:00 p.m. EST, on Sunday, September 13, 2015, are credited as FLSA OT, in accordance with 5 USC 551.401(g) and 5 CFR 551.501(a), and the 3.25 hours of travel which occurred from 3:15 a.m. to 6:30 a.m. EST, prior to the beginning of the claimant’s normal work hours during this instance of travel are credited as compensable hours of work under and 5 CFR 550.112(g)(2)(iv) and credited as CTT.  Thus, we find the claimant’s agency owes him 7.5 hours FLSA OT, and 3.25 hours CTT for this instance of travel.

Friday, September 18, 2015

The claimant left his temporary lodging in Sharonville, Ohio, at approximately 11:30 a.m. EST, and arrived at his POV at approximately 11:00 p.m. EST.  He then experienced a normal commute to his residence (i.e., .5 hour).  The claimant states he did not take a bona fide meal break during this instance of travel, and his agency does not disagree.  The claimant asserts he is owed 7 hours CTT for this instance of travel based on his belief his regularly scheduled work hours were from 7:30 a.m. to 4:00 p.m. EST.  However, as previously stated, his regularly scheduled work hours for this instance of travel was actually from 6:30 a.m. to 3:00 p.m. EST, and were used when making determinations for this instance of travel.

According to 5 CFR 551.501(a), an agency shall compensate a non-exempt employee under subpart B of this part for all hours of work in excess of 8 for a regular workday or 40 in a workweek at a rate equal to one and one half times the employee’s hourly regular rate of pay.  Friday, September 18, 2015, was a regularly scheduled workday for the claimant.  Therefore, all workhours occurring during this regularly scheduled workday (i.e., from 6:30 a.m. to 3:00 p.m. EST), and any hours less than 8 hours for this instance of travel, are not credited as FLSA OT.  However, all workhours in excess of 8 hours for this workday will be credited as FLSA OT.

We find 5 CFR 551.422(a)(1), is applicable as the claimant was required to travel 3.5 hours (i.e., from 11:30 a.m. to 3:00 p.m. EST) during normal work hours for this instance of travel.

We also find 5 CFR 550.112 (g)(2)(iv), is applicable for the September 18, 2015, instance of travel as the agency required the claimant to attend the ACGIH training and the training event was outside the administrative control of the agency, 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); William A. Lewis, et al, 69 Comp. Gen. 545 (1990).  Therefore, all hours spent traveling to and from the ACGIH training is considered compensable hours of work.

In addition, as previously stated, the claimant was credited and paid for working 40-hours during the second week of pay period #18, which includes 8 hours of regular pay provided to the claimant for Friday, September 18, 2015.  Therefore, although the claimant earned a total of 11.5 compensable hours of work during his return from the ACGIH training (i.e., 11:30 a.m. to 11:00 p.m. EST), we find his agency fully compensated the claimant for his full salary for the affected pay period, including 8 hours pay for Friday, September 18, 2015.  Thus, we must credit the agency for the 8 hours paid to the claimant for Friday, September 18, 2015, and deduct the aforementioned 8 hours from the 11.5 compensable hours of work earned during this instance of travel.  We also find that although the agency credited the claimant for a regular 8-hour workday (6:30 a.m. to 3:00 p.m. EST) during this instance of travel, he did not perform work or begin his travel until 11:30 a.m. EST.  Thus, the claimant received 5 hours regular pay (e.g., 6:30 a.m. to 11:30 a.m. EST) which was not earned (i.e. personal time).  Consequently, the claimant owes the agency 5 hours leave to cover his personal time from 6:30 a.m. and 11:30 a.m. EST, which fully accounts for this 8 hour workday.  Therefore, the agency owes the claimant FLSA OT for the 8 hours of travel for training from 3:00 p.m. to 11:00 p.m. EST for this instance of travel.

FLSA and CTT Decision and Compliance Instructions

We find the claimant’s work is nonexempt (i.e., covered by FLSA overtime provisions), and he is entitled to compensation for all overtime hours worked at the FLSA overtime rate as detailed in 5 CFR 551.501(a).  The agency must reconstruct the pay records for the claimant for the period of the claim and compute back pay for the FLSA overtime pay owed and any interest on the back pay, as required under 5 CFR 550.805 and 550.806, respectively.  In addition, the claimant has the option of requesting FLSA overtime pay in lieu of any CTT the agency paid in lieu of FLSA OT which the claimant earned but did not use during the claim period in accordance with 5 CFR 551.531.  The agency must also reconstruct the claimant’s pay records and calculate the difference between any compensatory time for travel already paid, and the total amount of compensatory time for travel owed the claimant during the pay period and compensate him accordingly.

If the claimant believes his agency has incorrectly computed the amount owed him, he may file a new FLSA claim with this office.

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