Office of Merit Systems Oversight and Effectiveness

Date: March 23, 2001
File Number: [01-0010]
Matter of: [xxxx]

OPM Contact: Melissa A. Drummond

The claimant is a current employee of the [xxxx]. She asserts that she is entitled to premium pay for overtime hours worked while on standby duty. The agency denied the claim on the basis that the claimant was in an on-call status and did not meet the parameters for standby duty pay as mandated in 5 CFR 550.112. For the reasons discussed herein, the claim is denied.

Within the documentation provided by the claimant, we find information about the claim and the claim period, including a statement of claim that was signed by the claimant on August 31, 1995. Within that statement, the claimant cites the claim period as being from April 18, 1989 to the present. [Note: Although there is conflicting information about when the claim was filed, we find that the earliest intent to file a claim is dated April 3, 1994, so the 6-year statute of limitations does not apply.] The claimant also says in this statement that, during the claim period, she was subject to an on-call status and was assigned a beeper; however, she was not able to use her own time effectively while on-call. Although the claimant confirms that she was never restricted to her living quarters or to a designated port of duty, she states that she did have to remain ready to respond to emergencies, within a 15- to 30-minute time period.

In order to decide whether the claimant is owed compensation, we must first determine whether the claimant met the basis for receiving premium pay for standby duty work. The provision governing this issue during the claim period is found at 5 CFR 550.143, effective January 1, 1989. It states in 550.143(a) that the requirement for the type of position eligible for regularly scheduled standby duty pay -- 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.

The provision further explains the meaning of "at, or within the confines, of his station" in 550.143(b) as:

(3) In an employee's living quarters, when designed by the agency as his duty station and when his whereabouts is narrowly limited and his activities are substantially restricted. This condition exists only during periods when an employee is required to remain at his quarters and is required to hold himself in a state of readiness to answer calls for his services. This limitation on an employee's whereabouts and activities is distinguished from the limitation placed on an employee who is subject to call outside his tour of duty but may leave his quarters provided he arranges for someone else to respond to calls or leaves a telephone number by which he can be reached should his services be required.

Due to the claimant's own statements -- that she carried a beeper and was not restricted to her living quarters, we find that her work is distinguished from standby duty and does not meet the basis for receiving premium pay for standby duty work.

[Note: Revisions to the regulations, effective January 10, 2000, provide further guidance on this issue at 5 CFR 550.112, which is what the agency used to deny the claim. It is inapplicable, therefore, to this claim based on the claim period. However, it does clarify the regulations on standby and on-call work. It states:

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.

Based on the on-call status of the work, an employee is not authorized annual premium pay. 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.

Since the claimant does not meet the provisions at 5 CFR 550.143(b)(3), effective January 1, 1989 and during the claim period, there is no basis for compensating the claimant's work with standby duty pay. The claim is denied.

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.