Washington, DC

U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code and

Compensation Claim Decision
Under section 3702 of title 31, United States Code

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Ana A. Mazzi
Deputy Associate Director
Merit System Audit and Compliance


07/11/2011

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Date

Introduction

The claimant requests that annual leave which was cancelled by management and converted to non-work hours on August 28, 2009, be reinstated, and that he receive overtime pay under the FLSA for the hours worked thereafter in excess of eight hours.  He is employed by Pinnacles National Monument, National Park Service, in Paicines, California, as a Park Ranger, GL-025-09.  This position is nonexempt from the provisions of the FLSA.  The claim was submitted as an FLSA claim but the interrelated issues fall under the provisions of both section 3702 of title 31, United States Code (U.S.C.), and section 4(f) of the FLSA of 1938, as amended, codified at section 204(f) of title 29, U.S.C.[1]

We received the claim on January 28, 2010, the agency’s administrative report (AAR) on April 15, 2010, and the claimant’s response to the AAR on April 27, 2010.  In reaching our decision, we have carefully considered all information furnished by the claimant and his agency, interviewed the claimant on February 28, 2011, to obtain additional information, and conducted additional fact finding for confirmation. 

Background

The claimant was on approved annual leave on Friday, August 28, 2009.  His scheduled work hours that workweek were 8:00 a.m.-4:30 p.m.  At 2:00 p.m., he received a call from his supervisor to report to the work site to assist in evacuation activities due to an approaching fire.  The claimant arrived at the work site shortly after 3:00 p.m. and was in a duty status until 10:00 p.m. (the latter time as annotated by his supervisor on his time card.)  He subsequently discovered that his time card for that pay period had been changed, cancelling the scheduled annual leave and indicating his work hours for that day as 2:00 p.m.-10:00 p.m., for which he was paid at a straight time rate of pay.

The claimant asserts his annual leave was improperly cancelled for the entire day.  He believes his annual leave should only be considered cancelled as of 2:00 p.m., when his supervisor called him to report to the work site.  He requests the six hours of annual leave scheduled from 8:00 a.m.-2:00 p.m. be reinstated and he be paid for those leave hours.  He believes he should be paid at a straight time rate of pay for what would thus be the first eight hours of work time, i.e., 8:00 a.m.-4:00 p.m., and requests the hours worked after 4:00 p.m. be considered overtime and he receive overtime pay for those hours.

Evaluation

Under section 3702 of title 31, U.S.C.

Regulations on the weekly and daily scheduling of work are contained in 5 CFR part 610.  Specifically as is relevant to this claim, 5 CFR 610.121 states:

    (a) Except when the head of an agency determines that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he or she shall provide that-

     (1) Assignments to tours of duty are scheduled in advance of the administrative workweek over periods of not less than 1 week: 

Section 610.121(b)(2) further states:

When the head of an agency knows in advance of an administrative workweek that the specific days and/or hours of a day actually required of an employee in that administrative workweek will differ from those required in the current administrative workweek, he or she shall reschedule the employee's regularly scheduled administrative workweek to correspond with those specific days and hours.  The head of the agency shall inform the employee of the change, and he or she shall record the change on the employee's time card or other agency document for recording work.

The claimant’s scheduled days and hours of work for the workweek in question were Tuesday-Saturday, 8:00 a.m.-4:30 p.m., as annotated on his time card.  Therefore, his scheduling of annual leave for those specific hours on August 28, 2009, was appropriate, and management took no action to alter this schedule in advance of the administrative workweek. 

It is well established that the use of annual leave by an employee is not a privilege but an absolute right, subject to the authority of the head of the department or establishment concerned to fix the time at which the leave may be taken.  B-141969, 39 Comp. Gen. 611, March 1, 1960. An agency may cancel approved leave or require that it be rescheduled if necessary to meet its operational requirements.

In this case, the claimant's supervisor called him to report to the work site due to emergency circumstances at 2:00 p.m. on the day in question, and the agency was within its authority to cancel the approved annual leave beginning at 2:00 p.m.  However, since the need for the claimant to report for duty either did not exist or was not determined prior to 2:00 p.m., and no operational requirement to cancel his annual leave can thus be considered to have existed prior to that time, then the agency may not cancel the approved annual leave prior to 2:00 p.m.  Therefore, the claimant may charge the hours of 8:00 a.m.-2:00 p.m. to annual leave on August 28, 2009. 

Under section 204(f) of title 29, U.S.C.

The claimant states he was called by his supervisor at 2:00 p.m. on August 28, 2009, to report to the work site, and this was corroborated by his supervisor by his subsequent annotation of the claimant's time card.  By this time, the claimant had already checked into a hotel approximately 30 miles from the work site after evacuating his Government quarters in the park due to the approaching fire. The claimant reports that he spent approximately 30 minutes preparing to depart the hotel for the work site, including putting on fire gear, and that it took him approximately 35-40 minutes to drive his privately owned vehicle to the work site. 

The claimant also states in his claim that he worked until 11:00 p.m. on the day in question.  However, his supervisor annotated his time card for that day with the work hours 2:00-10:00 p.m.  Further, on the "Emergency Incident Time Report" which the claimant submitted to his agency on September 1, 2009, he recorded his work hours as 2:00-9:30 p.m.  The claimant explains these discrepancies in his formal grievance to his agency, dated November 14, 2009, submitted with his claim, in which he states:

I would like to make two corrections which have come to light since my informal grievance....I should have been paid overtime from 1600 [4:00 p.m.] to 2300 [11:00 p.m.] hours on 8/28/2009.  This is a revision based on confirming with my dispatch when I was last heard on the radio plus travel time back to my hotel.  

The claimant expands upon this in his claim to OPM, saying:

Also, I am authorized the overtime to the hotel that I was evacuated to, which I claimed, because I was carrying heavy, sensitive, and complex duty gear, including weapon, badge, fire gear, and defensive equipment.  In decided OPM case, they ruled, "OPM has held in a past case that employees who transport relatively heavy or complex equipment important to mission accomplishment while traveling is [sic] performing work for FLSA purposes."

Section 551.501 of 5 CFR requires that "[a]n agency shall compensate an employee who is not exempt under subpart B of this part for all hours of work in excess of 8 in a day or 40 in a workweek at a rate equal to one and one-half times the employee's hourly regular rate of pay." 

In relevant part, "hours of work" is defined in 5 CFR 551.104 as follows:

Hours of work means all time spent by an employee performing an activity for the benefit of an agency and under the control or direction of the agency. 

This definition is amplified by 5 CFR 551.401(b):

For an employee, as defined in 5 U.S.C. 5541(2), hours in a paid nonwork status (e.g., paid leave, holidays, compensatory time off, or excused absences) are "hours of work" under this part.

Therefore, the six hours the claimant spent on approved annual leave from 8:00 a.m.-2:00 p.m. are considered "hours of work" under 5 CFR 551.401(b).

The FLSA states employers must pay employees for all hours worked.  The Supreme Court has long noted work is physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer.  However, the Portal-to-Portal Act of 1947 (codified at 29 U.S.C. 254(a)) provides that:                                     

           No employer shall be subject to any liability or punishment under the FLSA on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities:

(1)   Walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform and

(2)   Activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.

Although not directly applicable to Federal employees such as the claimant, we note DoL’s Wage and Hour Advisory Memorandum No. 2006-2, dated May 31, 2006, states:

donning and doffing of required gear is within the continuous workday only when the employer or the nature of the job mandates that it take place on the employer’s premises.  It is our longstanding position that if employees have the option and the ability to change into the required gear at home, changing into that gear is not a principal activity.

OPM has also adopted this interpretation.  These activities are not an integral part of the employees’ employment and time spent on these activities is not working time.  Therefore, the time the claimant spent donning fire gear at the hotel from 2:00-2:30 p.m. is not compensable as “hours of work.” 

Relevant to the claimant's traveling from the hotel to the work site and back, nonexempt Federal employees under OPM's FLSA jurisdiction fall under the provisions of 5 CFR 551.422(a), which states that time spent traveling shall be considered hours of work if:

(1) An employee is required to travel during regular working hours;

(2) An employee is required to drive a vehicle or perform other work while traveling;

(3) An employee is required to travel as a passenger on a one-day assignment away from the official duty station; or

(4) An employee is required to travel as a passenger on an overnight assignment away from the official duty station during hours on nonworkdays that correspond to the employee's regular working hours.

Thus, under 5 CFR 551.422(a)(2), time spent traveling is considered hours of work if an employee is required to drive a vehicle or perform other work while traveling. which may include the transport of equipment.  In the claimant's case, the purpose of his traveling was to transport himself to his work site.  The "duty gear" he references transporting included a gun belt (10 pounds), fire hat (2 pounds), and fire pack containing such items as water bottles, emergency shelter, food, batteries, and clothing (50 pounds).  Considering that the gun belt was part of his regular uniform, the only additional equipment being transported was the fire gear.  This gear was for his personal use if needed during the course of the evacuation activities.  Its transport did not impose any additional work requirements, such as special handling or safeguarding, beyond putting it in and taking it out of his car.  Thus, the transport of this gear was incidental to the claimant's traveling and not its primary purpose, and did not constitute the performance of work while traveling within the meaning of 5 CFR 551.422(a)(2).

The treatment of travel performed for the purpose of commuting is addressed in 5 CFR 551.422(b) as follows: 

An employee who travels from home before the regular workday begins and returns home at the end of the workday is engaged in normal "home to work" travel; such travel is not hours of work.  When an employee travels directly from home to a temporary duty location outside the limits of his or her official duty station, the time the employee would have spent in normal home to work travel shall be deducted from hours of work as specified in paragraphs (a)(2) and (a)(3) of this section.

In accordance with relevant provisions of the Portal-to-Portal Act of 1947 cited above, time spent commuting is not considered compensable hours of work.  See Comptroller General Decision B-202098, September 18, 1987; B-146389, August 3, 1961; B-175608, January 22, 1973; also OPM File Number 1996-01678.  In this case, the claimant was commuting to work after the commencement of his "regular workday" because he had been called by his supervisor to report to work while on approved leave.  This is not conceptually different than a situation where an employee voluntarily takes leave for only part of the day and is thus commuting to work after the time when his or her "regular workday" would normally begin.  That the claimant was commuting from a temporary residence rather than from "home" is similarly not relevant to this determination, any more so than if the claimant were staying in an alternate residence for some other reason, either voluntarily or involuntarily.  In addition, the claimant was not traveling from his residence to a temporary duty location outside the limits of his official duty station.  Rather, he was traveling to his normal duty station within the confines of the park.  Therefore, the time the claimant spent traveling from the hotel to the work site and back is not compensable as hours of work in accordance with 5 CFR 551.422(b). 

The claimant states that the commute from the hotel to the work site was approximately 35-40 minutes in duration.  The hotel was located in King City, California, which is about 25-30 miles from Pinnacles National Monument depending on the route taken.  The exact time the claimant arrived at the work site cannot be independently verified.  However, the claimant's time estimation is reasonable for purposes of establishing when he arrived at his duty station and commenced work. 

We requested from the agency the last dispatch recordings from the claimant on the night of August 28, 2009.  The last recorded message from the claimant on that night was at 9:09 p.m.  In the absence of any further evidence or documentation to establish the time at which the claimant actually ended his workday, we rely on the official record, which is the supervisor's annotation of his time card showing 10:00 p.m. as the conclusion of his work hours.  When we interviewed the claimant, he acknowledged he was uncertain when he returned to the hotel that night and indicated he did not necessarily dispute the annotated 10:00 p.m. concluding time.  As such, we consider the claimant to have worked until 10:00 p.m. on August 28, 2009.    

Summary

As discussed above, the time the claimant spent dressing for work from 2:00-2:30 p.m. is not considered "hours of work," and the time he spent commuting to the work site from approximately 2:30-3:10 p.m. is not considered "hours of work."  However, since these times are merely estimates with no means of independent verification, it is reasonable to conclude that it took the claimant about one hour to report to the work site, for an arrival time of 3:00 p.m.  The time the claimant spent commuting back to the hotel at the conclusion of the work day at 10:00 p.m. is not considered "hours of work." 

The claimant worked an additional seven hours from 3:00-10:00 p.m. after his annual leave was cancelled.  The first two of those hours, from 3:00-5:00 p.m., combined with the six hours of approved annual leave from 8:00 a.m.-2:00 p.m., constitute the eight hours for which he should have been paid at a straight time rate of pay.  He thereafter worked five hours "in excess of 8 in a day," from 5:00-10:00 p.m., for which he is due FLSA overtime pay. 

Decision

The claimant is to be charged six hours of annual leave for the hours of 8:00 a.m.-2:00 p.m. on August 28, 2009.  This portion of this claim decision made under section 3702 of title 31, U.S.C., is final and no further administrative review is available within OPM.  Nothing in this portion of the decision limits the claimant’s right to bring an action in an appropriate United States court.

The claimant is due five hours of FLSA overtime pay for August 28, 2009, for the hours of 5:00-10:00 p.m.  The agency is to compute the claimant’s pay entitlement in accordance with subpart E of part 551 of 5 CFR and 5 CFR 550.805.  Under 5 CFR 550.806, the claimant is also owed interest on the back pay discussed above.  Therefore, the agency is to compute the interest as described in the regulation.  If the claimant believes the agency incorrectly computes the amount, he may file a new FLSA claim with this office. 

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