Office of Merit Systems Oversight and Effectiveness

Date: January 11, 2001
File Number: [001256]
Matter of: [Claimants Name]

OPM Contact: Jo-Ann Chabot

The claimant, a civilian employee of the [agency] in [country], requests payment for 2951.5 hours of overtime that he states he worked from May 1990 through March 1996. Based on a review of the file, we have determined that the claim may not be allowed for the reasons stated below.

The claimant has produced evidence (time sheets, a time log, and testimonials from other employees) that he worked overtime, and the agency acknowledges that he did work additional hours. In addition, the record reflects that the claimants supervisor was aware that the claimant was working additional hours. The agency reports, however, that according to its policy on civilian personnel overtime management, overtime or compensatory time must be requested and approved in writing by authorized officials prior to the start of the pay period during which the additional hours of work are required. Finally, the record does not include official documentation showing that the overtime performed in this case was ordered and approved by authorized officials.

Section 5543 of title 5, United States Code, provides that the head of an agency may, on the request of an employee, grant the employee compensatory time off from his scheduled tour of duty instead of monetary payment for overtime under 5 U.S.C. 5542. The pertinent OPM regulation on compensatory time, 5 CFR 550.114, tracks the statute. Under 5 U.S.C. 5542(a), overtime may be paid for hours of work officially ordered or approved. The OPM regulation concerning overtime, 5 CFR 550.111(a)(Authorization of Overtime Pay), provides that overtime work means "work in excess of 8 hours in a day or in excess of 40 hours in an administrative workweek that is . . . [o]fficially ordered or approved."

Accordingly, to be entitled to overtime pay or compensatory time in lieu of such pay, the overtime must be ordered or approved by an authorized official. OPM Decision # S004070 (January 19, 2000); United States Information Agency Compensatory Time, B-251636 (June 11, 1993); Richard R. Bourbeau, B-238987 (September 7, 1990), affirmed, 71 Comp. Gen. 432 (1992); 68 Comp. Gen. 385 (1989); John W. Wright, B-236750 (November 7, 1989); Jim L. Hudson, B-182180 (January 6, 1982); Donald W. Plaskett, B-183916 (March 8, 1976); Garrett F. Masco, B-179908 (December 20, 1973). Mere knowledge that an employee is working beyond his normal duty hours, without active inducement of the employee to perform the additional work, is not enough to support payment in the absence of an official order or approval for overtime work to be performed. John W. Wright, supra.; 68 Comp. Gen. 385 (1989); Jim L. Hudson, supra.; Donald W. Plaskett, supra.; Garrett F. Masco, supra. Indeed, it is not sufficient that an employing agency tacitly expected that overtime work be performed. Jim L. Hudson, supra.

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. Jim L. Hudson, supra. The record does not include any documentation that the additional hours worked by the claimant were officially ordered or approved, or actively induced, by agency officials with authority to order or approve overtime.

We are required to settle claims only in accordance with the applicable laws and regulations, and we cannot waive or modify their provisions in individual cases. Accordingly, the claim is denied.

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