Washington, DC

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

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Damon B. Ford
Acting Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance

04/22/2020

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Date

As provided in section 551.708 of title 5, Code of Federal Regulations, this decision is binding on all administrative, certifying, payroll, disbursing, and accounting officials of agencies for which the U.S. Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA).  The agency should identify all similarly situated current and, to the extent possible, former employees, and ensure that they are treated in a manner consistent with this decision.  There is no right of further administrative appeal.  This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708.  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.

The agency is to review whether the claimant has worked overtime in accordance with instructions in the “Decision” section of this decision, and if the claimant is determined to be entitled to back pay, the agency must pay the claimant the amount owed her plus interest as provided in 5 CFR 550.806.  If the claimant believes the agency has incorrectly computed the amount owed her, she may file a new FLSA claim with the Office of Personnel Management (OPM), Agency Compliance and Evaluation (ACE), Washington, DC, office.

Introduction

On March 12, 2018, OPM received an FLSA claim from Sabrina K. Scott stating she has not received compensatory time for travel (CTT) or FLSA overtime pay for four instances of agency-authorized travel to and from training on February 12 and 17, 2017, and March 27 and 31, 2017.  In subsequent contacts with OPM she clarified the details of her claim for retroactive compensation.  During the period of the claim, the claimant occupied a nonexempt (i.e., covered by the overtime pay provisions of the FLSA) position classified as a Human Resources Specialist, GL-201-9, with the Human Resources Office, Federal Correctional Institution Jesup, Southeast Region, Federal Bureau of Prisons (BOP), U.S. Department of Justice, in Jesup, Georgia.  We have accepted and decided this claim under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).

Evaluation

Period of the claim

Section 551.702 of title 5, Code of Federal Regulations (CFR), provides that all FLSA claims filed after June 30, 1994, are subject to a two-year statute of limitations (three years for willful violations).  A claimant must submit a written claim to either the employing agency or to OPM in order to preserve the claim period.  The date the agency or OPM receives the claim is the date which determines the period of possible back pay entitlement.  The claimant did not file a formal FLSA claim with her agency.  The instances of travel identified in the claim were preserved on the filing date and fall within the two-year statute of limitations, thus the claim period commences on March 12, 2016.

Position information

During the claim period, the claimant served as one of two Human Resources (HR) Specialists at the institution.  She provided HR support services for various HR programs, e.g., staffing, performance evaluation and incentive awards, time and attendance, leave administration and employee compensation, and local training and employee development.  The claimant’s duties included attending job fairs as the Black Affairs Manager to recruit new employees.  She ensured employees were assigned to the correct position description number and updated the institution’s organizational charts as needed.  The claimant processed promotion and reassignment actions in accordance with BOP and OPM regulations.  She kept track of which employees were approved for training and ensured the employees attended the training.  The claimant ensured all mandatory training requirements were met by the institution’s employees and responded to technical questions from them.  The claimant conducted annual timekeeper training and assisted timekeepers with resolving employee leave discrepancies.  She provided employee development program information as requested. 

In reaching our FLSA decision, we carefully reviewed all information gained through an interview with the claimant, as well as documents, travel and payroll information provided by the claimant and her agency.  We were unable to interview the claimant’s supervisor during the claim period due to her retirement.

FLSA and CTT Evaluation

The claimant asserts she is owed 10 hours of CTT for four instances of agency-approved travel for training (i.e., Sunday, February 12, 2017; Friday, February 17, 2017; Monday, March 27, 2017; and Friday, March 31, 2017) during February and March 2017.

She requests the following compensation for agency-approved travel for training.  For consistency we have converted Central Mountain Time (CMT) to Eastern Standard Time (EST).

• 2 hours CTT for travel on Sunday, February 12, 2017, from approximately 5:30 a.m. to 7:30 a.m. EST.
• 5 hours CTT for travel on Friday, February 17, 2017, from approximately 7:00 a.m. to 9:30 a.m. EST.
• 5 hours CTT for travel on Monday, March 27, 2017, from approximately 5:00 a.m. to 7:30 a.m. EST.
• 3 hours CTT for travel on Friday, March 31, 2017, from approximately 6:30 a.m. to 9:30 a.m. EST.

As a BOP employee, the claimant was required to attend courses in her functional area at BOP’s Management and Specialty Training Center.  The two courses varied in duration and required her to travel once on a Sunday (non-workday), for the course that began on a Monday morning.  The claimant travelled on workweek days the remaining three instances of travel.  BOP policy requires an employee to submit requests for training and related travel to the agency in advance of each training event for consideration and approval.  Once training has been approved, BOP’s Travel Management Center is used to arrange travel reservations to and from the training for the employee.  The claimant’s regularly scheduled administrative workweek is Monday through Friday, 7:30 a.m. to 4:00 p.m. EST.  These hours have been used to determine any FLSA overtime (OT) pay and CTT hours which may be owed to the claimant for each instance of travel.  For each instance of travel, the claimant’s spouse drove her in their privately-owned vehicle (POV) from their home to the Savannah/Hilton Head International Airport (AP) in Savannah, Georgia, where she departed for, and returned from each training during the claim period.  Upon her return to Savannah/Hilton Head International AP after each training event, the claimant’s spouse drove her in their POV back to their residence.  Her normal home-to-work and work-to-home commute took one-half hour (.5) and her home-to-Savannah/Hilton Head International AP and Savannah/Hilton Head International AP-to-home commute took approximately one hour.  We have evaluated the claimant’s travel by reference to the regulations addressed below, as appropriate.  As discussed later, in those instances where CTT was awarded the claimant did not meet the “time spent traveling hours of work” requirement specified in 5 CFR 551.422 (a) or basic principles and overtime pay provisions defining and governing “hours of work” discussed in 5 CFR 551.401 or 5 CFR 551.501.

In accordance with 5 CFR 551.401, (a), all time spent by an employee performing an activity for the benefit of an agency and under the control or direction of the agency is “hours of work.”  Such time includes:

(1) Time during which an employee is required to be on duty;

(2) Time during which an employee is suffered or permitted to work; and

(3) Waiting time or idle time which is under the control of an agency and which is for the benefit of an agency.

For the purposes of determining hours of work in excess of 8 hours in a day under 5 CFR 551.401(f), agencies shall credit hours of work under §410.402 of this chapter, part 532 of this chapter and 5 U.S.C. 5544, and part 550 of this chapter, as applicable.

In addition, as per 5 CFR 551.401(g), for the purpose of determining hours of work in excess of 40 hours in a week or in excess of another applicable overtime work standard under section 7(k) of the Fair Labor Standards Act, agencies shall credit hours of work under §410.402 of this chapter, part 532 of this chapter and 5 U.S.C. 5544, and part 550 of this chapter, as applicable, that will not be compensated as hours of work in excess of 8 hours in a day, as well as any additional hours of work under this part.

As per 5 CFR 551.401(h), for the purpose of determining overtime pay for work in excess of 40 hours in a workweek under this part, time spent in a travel status is hours of work as provided in §551.422 of this part and §550.112(g) of this chapter or 5 U.S.C. 5544, as applicable.

As per 5 CFR 551.501(a), an agency shall compensate a non-exempt employee 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.

Depending on the FLSA exemption status of an employee's position, time spent traveling is considered compensable hours of work as described in both 5 CFR 551.422(a) and 5 CFR 550.112(g).

In accordance with 5 CFR 551.422(a), time spent traveling by non-exempt Federal employees is considered hours of work if they are required to:

(1) travel during regular working hours,

(2) drive a vehicle or perform other work while traveling,

(3) travel as a passenger on a one-day assignment away from the official duty station, and

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

As per 5 CFR 551.422(b), 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.

As per 5 CFR 551.411(a), workday means the period between the commencement of the principal activities that an employee is engaged to perform on a given day, and the cessation of the principal activities for that day.  All time spent by an employee in the performance of such activities is hours of work.  The workday is not limited to a calendar day or any other 24-hour period.  (b) Any rest period authorized by an agency that does not exceed 20 minutes and that is within the workday shall be considered hours of work.  (c) Bona fide meal periods are not considered hours of work, except for on-duty meal periods for employees engaged in fire protection or law enforcement activities who receive compensation for overtime hours of work under 5 U.S.C. 5545(c)(1), or (c)(2), or 5545b.

Both FLSA nonexempt and exempt employees covered by title 5, U.S.C., fall under the provisions of 5 CFR 550.112(g).  In other words, travel time that is not compensable under section 551.422(a) may be compensable under section 550.112(g).  This section provides that time in a travel status away from the official duty station is hours of work if the travel:

(1) is within an employee's regularly scheduled administrative workweek,

(2) involves the performance of work while traveling,

(3) is incident to travel that involves the performance of work while traveling,

(4) is carried out under arduous and unusual conditions, or

(5) results from an event that could not be scheduled or controlled administratively.

The phrase "could not be scheduled or controlled administratively" refers to the ability of an Executive agency as defined in 5 U.S.C. § 105 to control the event that necessitates an employee's travel.  The control is assumed to be the agency's, whether the agency has sole control or the control is achieved through a group of agencies acting in concert, such as a training program or conference sponsored by a group of agencies, or sponsored by one in the interest of all, or through several agencies participating in an activity of mutual concern.  When an institution outside the Government conducts a training event for which attendance is mandatory, unless it is for the sole benefit of the Government, it is an event that cannot be scheduled or controlled administratively.  See Comptroller General Decision, B-193127, May 31, 1979; Perry L. Golden and Wayne Woods, 66 Comp. Gen. 620 (1987); Morris Norris, 69 Comp. Gen. 17 (1989); William A. Lewis, et al, 69 Comp. Gen. 545 (1990).

Under 5 CFR 550.1401, OPM describes regulations implementing 5 U.S.C. 5550(b), which establishes a separate type of compensatory time off.  Subject to the conditions specified in this subpart, an employee is entitled to earn, on an hour-for-hour basis, compensatory time off for time in a travel status away from the employee’s official duty station when the travel time is not otherwise compensable (i.e., under sections 551.422(a) or 550.112(g)).

Subject to the conditions specified in 5 CFR 550.1404(a), an agency must credit an employee with compensatory time off for time in a travel status if:

(1) The employee is required to travel away from the official duty station; and

(2) The travel time is not otherwise compensable hours of work under other legal authority.

In accordance with 5 CFR 550.1404(b) (1), time in a travel status includes the time an employee actually spends traveling between the official duty station and a temporary duty station, or between two temporary duty stations, and the usual waiting time that precedes or interrupts such travel, subject to the exclusion specified in paragraph (b) (2), of this section and the requirements in paragraph (c), (d), and (e), of this section.  Time spent at a temporary duty station between arrival and departure is not time in a travel status.  Time in a travel status ends when the employee arrives at the temporary duty worksite or his or her lodging in the temporary duty station, wherever the employee arrives first.  Time in a travel status resumes when an employee departs from the temporary duty worksite or his or her lodging in the temporary duty station, from whichever the employee departs last.  Travel time in connection with an employee's permanent change of station is not time in a travel status.  Determinations regarding what is creditable as “usual waiting time” are within the sole and exclusive discretion of the employing agency.  Section (b)(2) “states, if an employee experiences an extended (i.e., not usual) waiting time between actual periods of travel during which the employee is free to rest, sleep, or otherwise use the time for his or her own purposes, the extended waiting time is not creditable as time in a travel status.”  In accordance with CFR 550.1404(c)(1), “[i]f an employee is required to travel directly between his or her home and a temporary duty station outside the limits of the employee's official duty station, the travel time is creditable as time in a travel status if otherwise qualifying under this subpart.  However, the agency must deduct from such travel hours the time the employee would have spent in normal home-to-work or work-to-home commuting.”

According to 5 CFR 550.1404 (d), “[i]f an employee is required to travel between home and a transportation terminal (e.g., airport or train station) within the limits of his or her official duty station as part of travel away from that duty station, the travel time outside regular working hours to or from the terminal is considered to be equivalent to commuting time and is not creditable time in a travel status.”

As per 5 CFR 550.1405, the employing agency must credit an employee with compensatory time off for creditable time in a travel status as provided in § 550.1404.

Based on the above regulations, we have evaluated each instance of travel occurring during the claim period to determine if the claimant is owed FLSA OT and/or CTT by her agency.

Sunday, February 12, 2017

The claimant states she is owed two hours of CTT for this day from approximately 5:30 a.m. to 7:30 a.m. EST.  However, the record shows the claimant left her residence at 6:00 a.m. EST, in route to the agency-sponsored Basic Employee/Labor Relations – BOP training at the BOP’s Management and Specialty Training Center, Aurora, Colorado, and arrived at her temporary lodging at the Cambria Suites Hotel, Aurora, Colorado, at approximately 4:30 p.m. EST.  The claimant asserts she did not stop for a bona fide meal period during this instance of travel. 

According to information and documents provided by the claimant as well as payroll records provided by the claimant’s agency, the claimant worked a full 40-hour week (i.e., Monday, February 13, 2017, to Friday, February 17, 2017, from 7:30 a.m. to 4:00 p.m. EST, her regular tour of duty).  Therefore, as per 5 CFR 551.422(a)(4), the 8.5 hours of work performed during normal workhours on Sunday, February 12, 2017, (i.e., 7:30 a.m. to 4:00 p.m. EST) are credited as OT under the FLSA which includes the time she did not take a bona fide meal period.

In this instance, the claimant also traveled outside normal work hours, during which she did not perform work.   Therefore, we find 5 CFR 550.1404(a)(1) is applicable since the claimant was required to travel away from her official duty station, and 5 CFR 550.1404(a)(2) is also applicable for the time between a portion of her travel to the Savannah/Hilton Head International AP and the time her normal workhours begin (i.e., from 6:30 a.m. to 7:30 a.m., EST or 1 hour), and the time between the end of her normal workhours and the time she arrived at her temporary lodging (i.e., from 4:00 p.m. to 4:30 p.m., EST or 0.5 hour), which are not otherwise compensable under other legal authority.  Therefore, we find the claimant is owed 1.5 hours CTT for this instance of travel.  However, we must also deduct the normal home-to-work commute time (i.e., 0.5 hour) in accordance with 5 CFR 550.1404(c)(1) and (d).  Therefore, we credit the claimant with 8.5 hours of FLSA overtime and 1.5 hours of CTT for this instance of travel. 

Friday, February 17, 2017

The claimant states she is owed 2.5 hours of CTT for this day from approximately 7:00 a.m. to 9:30 a.m. EST.  However, the record shows this instance of travel began at approximately 6:00 a.m. EST, when the claimant left her temporary lodging at the Cambria Suites Hotel, Aurora, Colorado, and ended when she arrived at her residence at approximately 3:30 p.m. EST.  We deducted the normal work-to-home commute time (i.e., .5 hour) at the end of the day.  The claimant asserts she did not take a bona fide meal period for this instance of travel. 

According to agency payroll records and documents and information we received from the claimant, we find she was paid for a full 40-hour week (i.e., Monday, February 13, 2017, to Friday, February 17, 2017) during the second week of pay period #3, 2017, but did not actually work an 8 hour day on February 17, 2017, because she ended her travel  prior to the end of her official tour of duty (i.e., 4:00 p.m. EST).  In this instance, the claimant’s travel occurred on a normal workday during which she was not required to perform work.  Therefore, any travel time which occurred outside normal work hours and in excess of 8 hours for this particular day does not meet the requirements for compensation under the FLSA (5 CFR 551.401 and 5 CFR 551.50l)  In this case she is only compensated under the FLSA for hours of work traveling during regular working hours (5 CFR 551.422(a)(1)).  However, under 5 CFR 550.1404(a) the period of 1.5 hours prior to the start of her tour of duty (i.e., 6:00 a.m. to 7:30 a.m.) is CTT.  Nevertheless, while she traveled 7.5 clock hours (7:30 a.m. to 3:30 p.m.) without a bona fide meal period, she arrived at her residence 0.5 hours prior to the end of her workday (i.e., 4:00 p.m.)   Because we must deduct her normal work to home commute time (5 CFR 551.422(a)(2) and (a)(3)), she actually became off-duty at 3:00 p.m., 1 hour before the end of her scheduled daily tour (4:00 p.m.).  However, the record shows the claimant was paid by the agency for 8 non-overtime hours.  Because the claimant did not complete her tour of duty, she needs to work through the agency to resolve this matter.  The claimant can, for example, request approval of 1 hour of annual leave (AL).  If this is requested and approved, working through the normal lunch period creates eligibility to receive 30 minutes of FLSA overtime pay.  If, on the other hand, the employee instead requests leave without pay (LWOP) to account for the remaining tour of duty, the 30 minute period worked through lunch can be substituted for half of that LWOP period, allowing the employee to not receive overtime but, in turn, only having 30 minutes of LWOP charged against that day’s work time.  See further, 5 CFR 550.112(d).  Because the employee began official Government travel before the scheduled tour of duty began, the claimant is owed 1.5 hours CTT.    

Monday, March 27, 2017

The claimant states she is owed 2.5 hours of CTT for this travel day from approximately 5:00 a.m. to 7:30 a.m. EST.  However, the record shows this instance of travel began at 4:00 a.m. EST, when the claimant departed her residence in route to the agency-sponsored Position Classification, Basic – GOV training at the BOP’s Management and Specialty Training Center, Aurora, Colorado, and ended when she arrived at her temporary lodging at the Cambria Suites Hotel, Aurora, Colorado, at approximately 2:30 p.m. EST.  We deducted the normal home-to-work commute time (i.e., 0.5 hour).  The claimant asserts she did not take a bona fide meal period for this instance of travel. 

According to agency payroll records and documents and information we received from the claimant, we find she was paid for working a full 40-hour week (i.e., Monday, March 27, 2017, to Friday, March 31, 2017) during the second week of pay period #6, 2017, which included payment for a full 8 hour day on Monday, March 27, 2017, but actually worked less time because she ended her travel prior to the end of her official tour of duty (i.e. 4:00 p.m. EST) on March 27, 2017.   The claimant left her residence at 4:00 a.m. and experienced a normal 0.5 hours home to work commute time not compensable under the FLSA or compensatory time.  However, from 4:30 a.m. to 7:30 a.m. she traveled outside her normal work hours, while not performing work, which constitutes 3 hours of CTT under 5 CFR 550.1404(a).  From 7:30 a.m. to 2:30 p.m. EST the claimant traveled 7 clock hours during normal work hours without taking a bona fide meal period, and arrived at her temporary lodging at 2:30 p.m. EST.  Nevertheless, as noted above the agency paid her for 8 non-overtime hours.  Because the claimant did not complete her tour of duty, she needs to work through the agency to resolve this matter.  The claimant can request approval of 1.5 hours of AL or LWOP to account for the remaining tour of duty.  Whether or not the employee is eligible for overtime for working through the lunch period depends on whether the employee is approved for annual leave or LWOP (see similar discussion for February 17, above).  The claimant is owed 3 hours of CTT.

Friday, March 31, 2017

The claimant states she is owed 3 hours of CTT for this travel day from approximately 6:30 a.m. to 9:30 a.m. EST.  However, the record shows this instance of travel began at approximately 6:00 a.m. EST, when the claimant left her temporary lodging at the Cambria Suites Hotel, Aurora, Colorado, and ended when she arrived at her residence at approximately 3:00 p.m. EST.  We deducted the normal work-to-home commute time (0.5 hour).  The claimant asserts she did not take a bona fide meal period for this instance of travel. 

According to agency payroll records and documents and information we received from the claimant, we find she was paid for a full 40 hour week to include an 8 hour day on Friday, March 31, 2017, but did not actually work a full 8 hours because she ended her creditable travel (at 2:30pm) prior to the end of her official tour of duty (i.e., 4:00 p.m.) on that day.  The claimant left her temporary lodging at 6:00 a.m. and traveled, without performing work, 1.5 hours outside her normal work hours (i.e., 6:00 am to 7:30 am) which warrants crediting 1.5 hours of CTT under 5 CFR 550.1404(a).  The claimant then traveled 7.5 clock hours (7:30 am to 3:00 p.m.) during normal work hours (7:30 am to 4:00 p.m.) with no bona fide meal period, and before the commuting time offset, on March 31, 2017.  Because the claimant did not complete her tour of duty, she needs to work through the agency to resolve this matter.  The claimant can request approval of 1.5 hours of AL or LWOP to account for the remaining tour of duty.  The claimant is owed 1.5 hours of CTT.  Whether or not the employee is eligible for overtime for working through the lunch period depends on whether the employee is approved for annual leave or LWOP (see similar discussion for February 17, above).  

FLSA and CTT Decision and Compliance Instruction

The claimant is entitled to FLSA overtime pay and compensatory time for travel covering certain periods of travel time during the claim period under the provisions of 5 CFR 551.422(a)(4), and 5 CFR 550.1404(a)(1) and (a)(2).  The agency must reconstruct the pay records for the claimant for the period of the claim and compute back pay for the FLSA overtime pay owed and any interest on the back pay, as required under 5 CFR 550.805 and 5 CFR 550.806, respectively.  In addition, the agency must review its compensatory time for travel records in accordance with the findings in this decision to ensure the claimant is awarded such compensatory time as specified.  If the claimant believes the agency has incorrectly computed the amount owed her, she may file a new FLSA claim with this office.  Compliance action on this decision must be completed within 60 days of the date of this decision as provided for in 5 CFR 551.708(c)(1).

   

 

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