Office of the General Counsel

Date: October 6, 2000
Matter of: [Claimant]
File Number: 00-0013

OPM Contact: Melissa Drummond

The claimant requests back pay for 323 hours of overtime pay for working TDY in [name] from July through August 1997. For the reasons discussed herein, the claim is denied.

In support of her claim, the claimant states that she was ordered by headquarters, specifically her second-level supervisor, to do what she had to do to get the project completed within 90 days. She states that, if she had worked her regular eight-hour days with no overtime, she would not have been able to complete the project on schedule. The claimant further states that her supervisors were aware of the overtime and initially granted a request that she be compensated for the overtime work. Additionally, the claimant states that it was "implied/induced/expected" that she work overtime.

There is agreement between the claimant and the agency that the claimant worked overtime. The agency reports that, during the period in question, the claimant was a GS-12 personnel management specialist, whose position was exempt from the Fair Labor Standards Act (FLSA). However, as reported by the agency, the evidentiary record does not indicate that the extra hours worked by the claimant were ordered, approved in writing, or affirmatively induced by an official with the authority to order or approve overtime. In fact, the agency further stipulates that it did not require the claimant to work overtime.

Section 5542 of title 5, United States Code, and section 550.111 of Title 5, Code of Federal Regulations (which applies to employees whose positions are exempt from the FLSA) 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.

Congress has expressly mandated that overtime must be "ordered or approved by an authorized agency official." 5 U.S.C. 5542(a). It is not sufficient that an employing agency have knowledge concerning an employees performance of overtime. Jim L. Hudson, supra. Indeed, it is not sufficient that an employing agency have tacitly expected that overtime work be performed. Jim L. Hudson, supra. Although the claimants supervisor may have been aware that she was working overtime hours during the TDY, mere knowledge that an employee is performing overtime, without active inducement, is not enough to support payment in the absence of an official order authorizing or approving overtime work. See Carl L. Haggins, B-216952; Jim L. Hudson, supra.

OPM does not conduct investigations or adversary hearings in adjudicating claims, but relies on the written record presented by the parties. See Frank A. Barone, B-229439, May 25, 1988. 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. Based on the written record, the claimants 323 hours of overtime work were not officially ordered, approved, or actively induced; therefore, the claim for overtime must be denied. See, e.g., 71 Comp. Gen. 30 (1991).

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

Distribution 

Mr. Joseph Caneva

Personnel Advisor

Department of Defense Education Activity

Pacific Service Center

Unit 35007

Box 0031

FPO AP 96373-0031

Ms. Patricia M. Harmon

6600-J Thackwell Way

Alexandria, VA 22315