s002345

Office of the General Counsel

Date: May 3, 1999
Matter of: [xxx]
File Number: S002345

OPM Contact: Murray M. Meeker

The claimants are five wage supervisors of the [xxx], who claim entitlement to a compensated lunch period. For the reasons discussed herein, the claim is denied.

In 1946, the Comptroller General authorized [xxx] to compensate its employees for a one-half hour lunch period. In reaching this decision, the Comptroller General emphasized two factors: (1) the security requirement that employees responsible for the production of money be restricted to their work areas during the entire workday and (2) because [xxx] employees were required to remain on call during their lunch periods in order to ensure the continuous operation of the production machinery. For these reasons, the Comptroller General concluded that the lunch period for [xxx] employees could be reasonably viewed as time given by the employees for the benefit of their employer and that [xxx] employees should, therefore, be compensated for their lunch period. B-56940, May 1, 1946. Accord, B-56940-O.M., August 12, 1952, and 44 Comp. Gen. 195 (1964).

In 1983, the General Counsel of the Treasury Department asked the Comptroller General whether the practice of providing [xxx] employees with a compensated lunch period might be discontinued and the Comptroller General declined jurisdiction. 62 Comp. Gen. 537 (1983). In declining jurisdiction, the Comptroller General emphasized that there was an irreconcilable dispute concerning the basic factual issues underlying the General Counsel's request, and that the dispute was not limited to the Department and its employees. Indeed, the [xxx] Director had reported that the conditions of employment at [xxx], particularly the amount of freedom enjoyed by [xxx] employees during their lunch period, had not materially changed. As a consequence, the Comptroller General concluded that it was not appropriate for a decision on the merits of the General Counsel's request.

However, sometime prior to the summer of 1998, [xxx] concluded that conditions for its wage supervisors had materially changed, and on June 22, 1998, [xxx] discontinued the paid lunch period and added 30 minutes to the workday for its wage supervisors. It is the agency's current position that there no longer is any basis for the expenditure of agency funds for a half-hour paid lunch period for wage supervisors. More specifically, the agency reports that its wage supervisors are now afforded a 30-minute lunch break during which they are free from work responsibilities.

The burden of proof is on the claimants to establish the liability of the United States. See 5 C.F.R.  178.105; Jones and Short, B-205282, June 15, 1982; and Arthur L. Butler, B-190803, Feb. 9, 1978. Although the claimants assert that wage supervisors still are required to perform duties during their lunch periods, the record submitted by the claimants contains no documentary evidence that on any given day that they were, in fact, prevented from having a lunch break. Accordingly, claimants have not met their burden of proof and their claims are denied.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.