Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Department of the Air Force
Yokota ABS, Japan
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
02/28/2017
Date
The claimant formerly occupied a Bowling Facility Manager position at Yokota Air Base Station (ABS), in Yokota, Japan. In his September 5, 2014, letter received by the U.S. Office of Personnel Management (OPM) on September 16, 2014, the claimant seeks pay for overtime he asserts he worked from April 2007 to October 2010. We received the agency administrative report (AAR) on April 8, 2015. For the reasons discussed herein, the claim is denied.
The claimant was appointed to the position at Yokota ABS on April 15, 2007, and resigned on April 14, 2012. During this period of employment, the claimant states that he “was forced to manage [a] facility from 0800 to 2200 daily, seven days a week and on weekend [sic] until 2300.” He states “[t]his was forced overtime because I was never given an Assistant Manager to adjust my schedule to prevent the overtime.” In total, the claimant requests 5,712 hours of overtime compensation for a total dollar amount of $175,439.04. In support of this request, he asserts that he submitted Air Force Form 428 (Request for Overtime, Holiday Premium Pay, and Compensatory Time) to his supervisor and leadership for approval.[1]
The agency rejected the overtime claim citing the foreign exemption provision of the Fair Labor Standards Act (FLSA).[2]
Two major laws govern Federal overtime pay – the FLSA and Title 5, United States Code (U.S.C.). OPM administers the FLSA via regulations that are contained in Part 551 of the Code of Federal Regulations (CFR), while title 5 overtime pay is addressed under Part 550 of the CFR.
Overtime under the FLSA
The FLSA sets overtime pay standards for employment subject to its provisions. Unless exempt, covered employees must be paid at least one and one-half times their regular rate of pay for overtime hours worked. However, the FLSA exempts certain employees from the application of its overtime pay provisions. The "foreign exemption" contained in 29 U.S.C. § 213(f), and 5 CFR 551.212, exempts any employee whose services during the workweek were performed in a workplace within a foreign country or certain territories. Therefore, employees working in a foreign country, like Japan, are subject to the foreign exemption and are not protected by the FLSA. The claimant’s servicing human resources office determined that his position was FLSA exempt, and applying the foreign exemption criteria to the facts of this claim, we concur. Accordingly, the claimant is not entitled to overtime compensation under the FLSA. We now review any possible entitlement to overtime pay under “Title 5.”
Overtime under Title 5
"Title 5" overtime under 5 U.S.C. § 5542 is payable to Federal employees whose officially ordered or approved hours of work exceed 40 hours in an administrative workweek or 8 hours in a day. The basic requirement for entitlement to overtime compensation under 5 U.S.C. § 5542 is promulgated in the implementing regulation, 5 CFR 550.111(c), which provides that overtime work must be ordered or approved in writing by an official to whom this authority has specifically been delegated. Therefore, only that overtime which has been officially ordered and approved in writing by an appropriate official is compensable overtime.
As it relates to this claim, the record is clear that the overtime work the claimant purportedly performed was neither ordered nor approved in writing by officials possessing the authority to authorize such work. In fact, the claimant notably writes in his claim: “I submitted a 428 overtime request to my supervisor and leadership however they never approved or disapproved the form.”
The claimant writes that “[he] was forced to manage the facility,” and that “If [he] was given an Assistant Manager to adjust [his] schedule the overtime wouldn’t have occurred.” From this, we cannot conclude that an authorized official "induced" the claimant to work overtime. See Anderson v. United States, 136 Ct. Cl. 365 (1956). As manager of the Yokota bowling facility, we recognize that perhaps there was a tacit expectation that overtime would occur, however, such an expectation does not meet the "officially ordered or approved" requirement. See Doe v. United States, 372 F.3d 1347 (Fed. Cir. 2004). Therefore, this time is not compensable overtime under 5 U.S.C. § 5542.
Under 5 CFR 178.105, the burden of proof is on the claimant to establish the liability of the United States and the claimant's right to payment. OPM does not conduct adversarial hearings, but instead settles claims on the basis of the evidence submitted by the claimant and the written record submitted by the government agency involved in the claim. See 5 C.F.R. § 178.105; Matter of John B. Tucker, B-215346, March 29, 1985. 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. The claim is accordingly denied.
This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States court.
[1] We note the copy of Form 428 submitted into the record by the claimant for pay period “Sept 2010” and requesting 5712 hours of overtime from April 4, 2007, to October 1, 2010, is undated and not signed by himself or any other certifying and approving official.
[2] The agency also states in support of claim denial “Federal Law 5 U.S.C. § 5541(2)((c)(vii) [sic] defines an employee as not eligible for premium pay when the employee is assigned outside the continental United States or in Alaska, the employee is paid in accordance with local native prevailing wage rates for the area in which employed.” As an employee initially paid under the National Security Personnel System and, subsequently under the General Schedule, 5 U.S.C. § 5541(2)(C)(vii) is inapplicable to the claimant.