002224

Office of the General Counsel

Matter of: [xxx]
Date: December 23, 1999
File Number: 002224

OPM Contact: Jo-Ann Chabot

The claimant has submitted a claim for 675 hours of overtime that he allegedly worked from December 12, 1993 to October 11, 1997. The claim is denied for the reasons stated below.

The claimant submitted xerographic copies of time cards for the period at issue to document his claim, but states that he worked additional hours of overtime that are not documented. Most of the time cards are signed by a supervisor, but a significant number have not been signed. Although the daily entries on many cards are for more than eight hours per day or forty hours per week, the two week total appears as 80 hours.

The agency reports that, during this period, the claimant was a GS-13/14 [xxx] manager with responsibility for organizing and implementing an important part of a [xxx] program. The agency further reports that the claimant also served on a working group that provided senior level review of the program's procedures and policy. The agency reports and the record reflects that the claimant was exempt from the Fair Labor Standards Act. In addition, the agency reports that official policy required overtime to be requested and approved in advance, except in unforeseen circumstances when the policy required that overtime should be approved as soon as possible after the need arose. It provided copies of the official policy on overtime which included sample forms for requesting and approving overtime. The agency reports that its search of the claimant's time and attendance records did not produce any official approvals of overtime or overtime requests from the claimant. It advised that the claimant's former supervisors counseled him not to work overtime, and they do not recall directing the claimant to work overtime, or receiving any requests from the claimant to work overtime. Finally, the agency stated that the claimant's workload was such that completing it did not require performance of overtime work.

Section 5542 of title 5, United States Code, and section 550.111 of Title 5, Code of Federal Regulations specify that hours of work performed in excess of 40 hours in an administrative workweek, or eight hours in a day, that are officially ordered or approved by an official with competent authority to do so are overtime work and shall be compensable. 5 U.S.C. 5542(a), 5 CFR 550.111(a), Matter of John W. Wright, B-236750 (November 7, 1989); Matter of Ronald L. Barnhart, B-231024 (April 12, 1989); Matter of Jim L. Hudson, B-182180 (January 6, 1982); Matter of Camillo J. Rossi, B-180139 (October 8, 1974). Claims are settled on the written record and the claimant has the burden of proving that he or she actually worked overtime that was officially ordered or approved, or actively induced, by an agency official with authority to order or approve overtime work. Matter of Jim L. Hudson, supra.

The agency also states that, because the agency also permits employees to work flexible schedules, the start and stop times shown on the claimant's time and attendance records do not necessarily reflect the total number of hours worked. The agency states that it did not order or approve overtime work to be performed by the claimant in this case, counseled the claimant not to perform such work, and did not find any written overtime requests or approvals in its official records. Based on our review of the record, we conclude that the claimant has not established that the claimed overtime hours were ordered or approved consistent with the agency's regulations for doing so. Accordingly, the claim for overtime is denied.

This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.