Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
U.S. Department of Homeland Security
[City & State]
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
10/31/2017
Date
On December 12, 2015, the U.S. Office of Personnel Management (OPM) received a claim for overtime pay from a claimant requesting confidentiality. The claimant is employed in a Transportation Security Officer (TSO), SV-1802-D/E, position with the Transportation Security Administration (TSA), U.S. Department of Homeland Security (DHS). He asserts he is not receiving overtime pay for work performed in excess of 40 hours per week. OPM received the agency’s administrative report (AAR) on June 10, 2016, and comments on the AAR from the claimant on June 15, 2016. For the reasons discussed herein, the claim is denied.
The claimant routinely works shifts in excess of the standard 40-hour work week. He asserts he is entitled to overtime pay for the excess hours because he is not assigned to either the 4/10 or the 5/4-9 compressed work schedules, which he states are the only two types of compressed work schedules per the “time and attendance payroll policies for TSA.” Further, he asserts that although TSA’s Management Directives note that compressed work schedules are “fixed schedules,” his schedule is not fixed because “in 2 pay periods, zero of the 4 weeks are the same, neither of the pay periods are the same.”
TSA is an excepted service agency exempt from most of title 5, United States Code (U.S.C.) provisions. Congress, through the Aviation and Transportation Security Act (ATSA), gave the TSA Administrator exclusive control over personnel and compensation actions involving TSO’s. Section 111(d) of the ATSA, codified at 49 U.S.C. 44935, states:
Notwithstanding any other provision of law, the [Administrator] of Transportation for Security may employ, appoint, discipline, terminate, and fix the compensation, terms and conditions of employment of Federal service . . . [as] necessary to carry out the screening functions of the [Administrator] under Section 44901 of Title 49, United States Code. The Under Secretary shall establish levels of compensation and other benefits for individuals so employed.
Section 111(d) provides unfettered discretion to the agency to “fix the compensation” of and “establish levels of compensation” for screener personnel. As such, the claimant is not directly covered by the overtime pay provisions found in title 5, including provisions which apply to compressed work schedules. The analysis which follows covers the claimant’s work schedule and claim for overtime pay pursuant to TSA Management Directives (MD), which establish TSA policy, and accompanying handbooks, which contain implementing provisions for the MD’s. Taken together, these directives and handbooks establish TSA policies concerning the claimant’s issues.
TSA MD No. 1100.61-2 Handbook, Hours of Duty for Special Operational Needs, dated August 8, 2008, defines compressed work schedule. It states, in pertinent part:
(6) Compressed Work Schedule (CWS): For FT positions, work schedules consisting of less than 10 days and no more than 80 hours per pay period.
The handbook defines flexible specialized work schedule. It states:
(10) Flexible Specialized Work Schedule (FSWS): CWS and variable work schedules created for the employees assigned to positions covered by the scope of the accompanying MD, that help to facilitate a balance between the critical security needs of TSA and the needs of our employees.
The handbook also defines variable work schedule. It states:
(18) Variable Work Schedule (VWS): An established work schedule that allows managers to vary the number of hours in the work day and the number of days in the workweek based on the needs of the organization.
Timesheets submitted by the claimant show that he works a CWS. His schedule consists of varying start and stopping times within an assigned shift, and he works from 6 to 15 hours on any given day. Specifically, the record shows the claimant works 80 hours in 6 days in one pay period and 80 hours in 9 days in the next pay period, with 13 days off.
Section D of the Handbook authorizes management to assign employees in covered positions to work under a FSWS to meet mission-related needs. In relevant part, it notes:
(1) FSWS shall be tailored to specific staffing needs. Compressed Work Schedules (CWS) and Variable Work Schedules (VWS) are types of FSWS used in TSA. Managers have the authority to direct employees to work specific schedules and participate in an FSWS when TSA mission requirements dictate. Managers are responsible for implementing an appropriate FSWS for their respective airport/field and/or headquarters locations for mission-related purposes only and not solely for the personal benefit of employees.
In addition, section E of the Handbook, Types of FSWS, in relevant part notes that:
(a) CWS are fixed schedules. FT employees are required to work 80 hours per biweekly pay period. The work must be scheduled for fewer than 10 work days.
(b) As with other work schedules, employees’ schedules and/or scheduled days off may be changed for operational reasons.
(c) Managers, or designees, may change or stagger the arrival and departure times for employees on CWS.
(d) Employees working a CWS may be required to work more than eight hours per day.
Thus, contrary to the claimant’s assertions, time and attendance policies do not define and have no bearing on what constitutes a CWS. Rather, TSA MD No. 1100.61-2 Handbook defines and establishes provisions for compressed work schedules. As shown above, the Handbook provides that a flexible work schedule, like the claimant’s schedule, constitutes a CWS, and that CWS are fixed schedules. Therefore, the claimant’s assertion that he does not work a fixed CWS is unsupported.
Overtime Claim
TSA MD No. 1100.55-8, Premium Pay and its accompanying handbook provide TSA policy and procedures on the payment of premium pay. Section C.3(a), Overtime (OT) Pay (Non-Exempt Employees), in the Handbook notes, in relevant part:
(2) TSA shall pay OT to a FT non-exempt employee working a CWS (may also include a VWS) for all work in excess of 80 hours during a pay period.
Thus, under TSA policy, a full-time employee under a CWS receives overtime pay for all overtime hours officially ordered and approved in excess of the CWS. Accordingly, as a full-time TSO scheduled to a CWS, the claimant is not entitled to overtime pay until he works over 80 hours in a pay period.
Decision
The hours worked at issue in the claim were not overtime and no money is due the claimant.