Office of the General Counsel

Date: May 30, 2000
Matter of: xxxx
File Number: 99-00274

OPM Contact: Melissa Drummond

The claimant, a former employee of the [agency], asserts that he is entitled to compensation for after hours and weekend work. The claimant was employed by the [agency] from xxxx to xxxx. The claimant is requesting compensatory time off for the period of xxxx through xxxx and that he be compensated at a 25% base salary premium for overtime work for the entire period in question. For the reasons discussed herein, the claim is denied.

We will first address the request for compensatory time off for the period of xxxx through xxxx. According to CFR 178.105, the burden is on the claimant to establish the timeliness of a claim. Although the claimant provided documentation to show that he requested compensatory time off on September 7, 1993 for the period from March 12, 1990 through April 10, 1991, the period was not preserved by the claimant in the timely submission of a formal claim to either his agency nor to OPM. Rather, his formal claim was submitted to OPM on February 8, 1999. This does not meet the 6-year statue of limitations contained in 31 U.S.C. 3702(b), and further stipulated in CFR 178.104.

In addition, the agency reports and the record reflects that the claimant was exempt from the Fair Labor Standards Act during the xxxx through xxxx period. Agency instructions state that procedures for requesting overtime or compensatory time off must be officially ordered or approved in advance. The agency reports that its search of the claimants time and attendance records did not produce any official approvals of overtime or overtime requests from the claimant. 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. Based on our review of the record, we conclude that the claimant has not established that the overtime hours for xxxx through xxxx were ordered or approved consistent with the agencys regulations for doing so. Accordingly, this part of the claim for compensatory time off is denied.

In response to the 25% base salary request for annual premium pay for regularly scheduled standby duty, we must determine whether the claimant performed standby duty and earned hours of work. The provision governing this issue, 5 CFR 550.112, provides as follows:

1. An employee is on duty, and time spent on standby duty is hours of work if, for work-related reasons, the employee is restricted by official order to a designated post of duty and is assigned to be in a state of readiness to perform work with limitations on the employees activities so substantial that the employee cannot use the time effectively for his or her own purposes. . . .
2. An employee is off duty, and time spent in an on-call status is not hours of work if: (1) the employee is allowed to leave a telephone number or to carry an electronic device for the purpose of being contacted, even though the employee is required to remain within a reasonable call-back radius; or (2) the employee is allowed for another person to perform any work that may arise during the on-call period.

Information from both the agency and the appellant states that the claimant was provided a beeper by the hospital. He, therefore, meets situation l. (Unfortunately, we are not able to speak to the inadequacies of the beeper, as expressed by the claimant.) As such, his after hours and weekend work is considered off duty. His time spent in an on-call status is not considered hours of work nor does it meet the definition of standby work. For example, the claimant states that the call-back time was always fifteen minutes whereas the agency stipulates that the call-back time was two hours, except in emergencies that required a shorter response time. Although there appears to be an irreconcilable factual dispute as to the length of the call-back time, it does not negate the fact that the claimant was still not limited to the immediate premises, as is typical of standby work.

Based on the on-call status of the work, the claimant is not authorized annual premium pay at 25% because he was not on standby duty. According to CFR 550.141,

an agency may pay premium pay on an annual basis (not in excess of 25 percent) . . . . to an employee in a position requiring him or her regularly to remain at, or within the confines of, his or her station during longer than ordinary periods of duty, a substantial part of which consists of remaining in a standby status rather than performing work.

Further guidance is found in 550.143(a)(1), which states that the requirement for the type of position referred to in 550.141 -- that an employee regularly remain at, or within the confines of, his station -- must meet all three conditions, including:

1. the requirement must be definite and the employee must be officially ordered to remain at his station. The employees remaining at his station must not be merely voluntary, desirable, or a result of geographic isolation, or solely because the employees lives on the grounds.

Since the claimant does not meet this first requirement, premium pay under 550.141 is not applicable.

In addition, while in an on-call status, call-back time is considered irregular and occasional overtime and may be paid with compensatory time off at the employees request. This is covered by agency instruction 550-1-60(B) that says

because call-back work is irregular/occasional overtime work, compensatory time off may be substituted for pay at the employees request (see 37 Comp. Gen. 1). See also 550.114(c).

According to the claimant, he began receiving compensatory time off in xxxx. We, therefore, conclude that he has been appropriately compensated for his after hours and weekend work.

The Office of Personnel Management (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.

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.