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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Carlos A. Torrico
Acting Classification and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


10/11/2017

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Date

Introduction

The claimant asserts he is due compensation for time spent traveling, time spent completing the travel voucher, and other claims.  The claimant’s position was classified as Reservist – Disaster Survivor Assistance, IM-0301-00, and assigned to the Federal Emergency Management Agency (FEMA), U.S. Department of Homeland Security, in Nashville, Tennessee.  We accepted and decided this claim under section 4(f) of the FLSA of 1938, as amended, codified at section 2404(f) of title 29, United States Code (U.S.C.).

Background and general issues

Reservists hired under the Robert T. Stafford Act, like the claimant, work intermittently to support disaster operations and are in a non-duty, non-pay status until they are activated for a disaster.  They are released when their services are no longer required, and then sent home until activated for the next disaster-support operation.  Reservists are paid for the periods when they are activated and working, in a travel or training status, or when authorized by applicable agency directives.  The claimant’s appointment with FEMA was terminated effective September 23, 2016.

The claimant makes many statements relating to his agency and its handling of his compensation issues.  Additionally, in a September 24, 2016, email to OPM, he asserts FEMA failed to pay his Government credit card as “a form of retaliation to punish [him] for contacting OPM FLSA minimum wage division for not making minimum wage while working in Texas for FEMA.”  Since allegations of retaliation are under the jurisdiction of the U.S. Office of Special Counsel, such issues have no bearing on our adjudication of his FLSA claim and will not be addressed further in our decision.

Evaluation

The claimant’s agency determined his position is nonexempt from the FLSA.  As a reservist during the claim period, he collected registrations for individual disaster assistance as well as advised local communities affected by the disaster on assistance offered by FEMA.  The claimant does not question the determination that he was FLSA nonexempt during the period of the claim and, therefore, covered by the provisions of the FLSA.  Based on careful review of the record, we have no reason to question the FLSA determination.

In his initial July 27, 2016, claim to OPM, the claimant requests to file, in part, a “[c]omplaint against FEMA for denial of minimum wage and overtime pay.”  As stated under 5 CFR 551.101(a), “The [FLSA] provides minimum standards for both wages and overtime entitlements, and administrative procedures by which covered worktime must be compensated.”  Effective July 24, 2009, the Federal minimum wage was set at $7.25 per hour, and Federal employees must be paid the minimum wage established by law.  The record includes a Standard Form 50, dated July 10, 2016, documenting the claimant’s conversion to an excepted service appointment with a basic pay rate of $26.82 per hour.  Therefore, we conclude the claimant, who was paid $26.82 per hour, is not contesting the rate at which he was paid but rather the agency’s decision to not compensate him for the time he asserts he spent traveling, completing his travel voucher, and other miscellaneous claims.

Time spent traveling

On June 28, 2016, the claimant was activated to work in support of disaster operation, DR-4272, Texas Severe Storms and Flooding, until he was released from the operation on July 14, 2016.  He drove a rental car from Texas to his residence in Nashville, Tennessee, from July 15-16, 2016.  When he initially requested compensation for 16 hours from his agency, his supervisor, the Disaster Survivor Assistance Branch Director, requested documentation showing he was approved to return home by rental car instead of aircraft or other common carrier, i.e., the mode of transportation identified by FEMA Manual 122-1-1, Travel Policy Manual, dated September 23, 2015.  When he was unable to provide that documentation, the agency denied his request for 16 hours of compensation and determined he would instead be compensated for 1 hour, which was subsequently increased to 8 hours.  The claimant later requested 28 hours rather than the 16 hours, explaining the discrepancy in his initial claim to OPM as follows:

In other [sic] to avoid interaction with FEMA managers over my time for the trip home of about 28 hours, I claimed only about 16 hours on my time sheet.  Instead of showing some concern for my discounted time of only 16 hours instead of 28 hours, the FEMA managers ask me to further reduce my time to 1 hour because an airplane takes about one hour to make the trip.

After some protest by me, the manage [sic] decided on only 8 hours and not the 16 hours claimed.  Since I will not make at least minimum wage at 8 hours and since I will not make overtime for the trip at 8 hours, I ask management for the full 28 hours and withdraw the discounted time of 16 hours because the FEMA managers were deliberately being unlawful, unethical, and immoral with my pay.

The claimant also asserts to OPM:

After the promise for the increase to 8 hours from the one hour, FEMA never provided me any pay for the 28 hours for the two days travel so it was just a blatant lie not a mistake or an error but a phony fabricated untruth since I was never compensate [sic] for work conducted last pay period.  I was not paid minimum wage or overtime for last pay period and no eight hours.

The agency states in its administrative report to OPM that the claimant was compensated for the eight hours of work time “as that is the approximate amount of time it would have taken him to complete the travel, travel voucher, and timesheet.”  Although suggesting he was not compensated for the eight hours of travel, the claimant does not provide a timesheet, leave and earnings statement, or other documentation to support his assertion.  The record, however, includes the claimant’s certified timesheet covering the July 10, 2016, to July 23, 2016, timeframe, showing approval for eight hours of regular base pay for work performed on July 15, 2016.  We conclude the claimant has been compensated for 8 of the 28 hours for time he asserts he spent traveling from July 15-16, 2016, and at issue is whether the claimant is due compensation for the remaining 20 hours being requested.[1]

The agency explains its denial of the claimant’s request in its administrative report:

…Mr. Bertrand is not entitled to 28 hours of pay for his travel irrespective of how long it took as his unauthorized decision to rent a car and drive rather than utilize common carrier air travel violated his Conditions of Employment Agreement, the Agency’s Travel Policy Manual, the Federal Travel Regulations (FTR) in the [CFR], and portions of the [U.S.C.]…Mr. Bertrand’s actions were contrary to essentially every possible authority on this matter, had he complied with the regulations his travel would not have taken 28 hours, and, as a result, he is not entitled to the pay he claims.

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Mr. Bertrand’s decision to travel by unauthorized rental car without prior approval violated the Conditions of Employment Agreement he signed upon his hire.  That Agreement states, in relevant part, “I will travel in the most expeditious and cost effective manner, using the Agency’s Travel Management Center, to make all my travel arrangements.”…His decision to travel via unauthorized rental vehicle and thereby incurring substantial costs (i.e., the cost to rent the unauthorized large vehicle, premium gasoline for a ~2,000 mile round trip, as well as wages and per diem for that trip, which he estimated took 28 hours to complete) violated his Conditions of Employment Agreement because it was not the “most expeditious and cost effective manner” of travel.

Relevant to the claimant’s situation, FEMA Manual 122-1-1, Chapter 3:  Transportation Allowances, Section 3-2(B), states:

1. Travelers must select the mode of transportation most advantageous to the Government, considering cost and other factors.  The mode of transportation selected must be the most expeditious means of transportation practicable and commensurate with the nature and purpose of the traveler’s duties.  Travel by common carrier is presumed to be the most advantageous method of transportation and must be used when reasonably available.  Any excess transportation costs incurred for indirect travel for personal reasons, or by unauthorized modes of transportation will not be reimbursed.

2. FEMA establishes the following order of priority in the selection of mode of transportation:

a.    Common carriers (e.g., aircraft, train, bus, ship, or other transit system)
b.    Government-owned Vehicle (GOV)
c.     Rental car
d.     Privately Owned Vehicle (POV)

FEMA Manual 122-1-1 also makes clear that the common carrier is considered the most advantageous mode of transportation and airline should typically be used for long distance travel (i.e., distances beyond 300 miles) since it results in the lowest overall costs.  Regarding any exceptions to the agency policy, we note Section 3-2(C) instructs:

3. If airline is not selected as the mode of transportation for travel that exceeds a distance of 300 miles, the traveler must submit an approved cost comparison with their Travel Authorization (TA) to document that the selected common carrier (train, ship, bus, local transit system) or alternate method (rental car, government owned vehicle (GOV) or privately-owned (POV) is less expensive than the cost of the airline.  The cost comparison must include the expense of transportation to and from the common carrier terminal.  The cost comparison must also consider additional costs that would be incurred as a result of the alternate mode of transportation, including costs of any additional per diem, overtime, comp time, lost work time, and actual transportation costs.

The claimant submitted driving directions from Austin, Texas, to Nashville, Tennessee, identifying the distance as 995 miles and the driving time as 14 hours and 17 minutes.  However, the record includes a receipt from a hotel in Fort Worth, Texas, showing the claimant’s arrival date as July 7, 2016, and departure date as July 15, 2016.  At our request for clarification, the claimant states that FEMA’s Joint Field Office is located in Austin, where FEMA reservists check in and receive their assignments to work in a designated area. The claimant was assigned to work in or near Fort Worth, and was thus lodging at a hotel in Fort Worth from July 7, 2016, to July 15, 2016.[2]  We note the distance between Austin and Fort Worth is approximately 200 miles with a driving time of 2 hours and 46 minutes.  We also note the distance between the Fort Worth hotel and his residence is approximately 709 miles with a driving time of 10 hours and 30 minutes.  Furthermore, the receipt shows the claimant departed his Fort Worth hotel on July 15, 2016, with the time of departure identified as 1:51 p.m.  If he had departed, as evident by the receipt from his hotel, from Fort Worth rather than Austin, we are unable to reconcile the driving time of 14 hours and 17 minutes suggested by the claimant.  Nonetheless, whether his July 15, 2016, departure originated from Austin or Fort Worth is immaterial to our analysis as we conclude he is not entitled to the actual time spent traveling for the reasons discussed below.

Given the distance between either Fort Worth or Austin to Nashville (i.e., greater than 300 miles) and the availability of airlines, the guidance in FEMA Manual 122-1-1 to travel by airlines as the mode of transportation is directly applicable to the claimant’s situation.  The agency states the claimant failed to obtain the approved cost comparison required in such situations and, furthermore, that an approving official did not authorize him to drive from Texas to his residence in Nashville.  He has not provided statements, witnesses, or other material evidence to suggest otherwise.  Because the claimant has failed to establish that he received approval as required by FEMA Manual 122-1-1 for his chosen mode of transportation resulting in the time spent traveling, we conclude he was traveling by an unauthorized mode of transportation.

Related to the claimant’s situation, 5 CFR 551.422(c) states:

An employee who is offered one mode of transportation, and who is permitted to use an alternative mode of transportation, or an employee who travels at a time other than that selected by the agency, shall be credited with the lesser of:

(1)   The actual travel time which is hours of work under this section; or

(2)   The estimated travel time which would have been considered hours of work under this section had the employee used the mode of transportation offered by the agency, or traveled at the time selected by the agency.

Consistent with 5 CFR 551.422(c), the claimant was compensated for eight hours of work time as that was considered by the agency as the approximate travel time had he used the appropriate mode of transportation.  We conclude if the claimant had traveled by plane as directed by agency policy, his flight time for a direct flight between either Fort Worth or Austin to Nashville would have been approximately two hours.  Including the two hours recommended prior to departure flights, the approximate 15-minute drive from the airport to his residence less than 10 miles away, and the time to pick up baggage and other incidental tasks, we conclude the claimant’s estimated travel time would have been no less than five hours.  Given that we calculated five hours as the estimated travel time had the claimant used the mode of transportation selected by the agency and given the agency has already compensated him for eight hours (we note the agency included time to complete the travel voucher and timesheet), we find no further compensation is due the claimant for time spent traveling.

Time spent on travel voucher

The claimant initially asserted in his claim request to OPM that he is owed 180 hours for “work on a FEMA voucher while in a none [sic] paid status.”  When his voucher associated with his travel from  the Texas disaster support operation to Nashville was repeatedly rejected by agency officials, the claimant amended his request in a series of subsequent emails to request payment variously for “about 200 hours,” “more than 220 hours,” “more than 250 hours,” and an additional “more than 122 hours” for voucher-related work and “working on FEMA government credit card at home while not on the clock.”  The claimant’s October 17, 2016, response to OPM’s request for clarification states he is owed 240 hours of regular time and 60 hours of overtime, totaling 300 hours.  He specifically states he worked 60 hours from September 13, 2016, to September 18, 2016, with all remaining hours occurring after September 26, 2016.

The claimant subsequently amended the hours he is requesting.  For example, he asserts spending “near to 450 hours” in an October 28, 2016, email to OPM.  In a December 9, 2016, letter to OPM, he requests an “additional 180 hours for coerced work for FEMA in Texas while at home in Tennessee.”  He further states:

In the alternative, I will also be grateful for at least minimum if nothing else for the work here with the fuel bill.

Under the provisions of 29 U.S.C. 204(f), OPM has established an administrative claims process.  Under 5 CFR 551.701(a), a claimant may file an FLSA exemption status determination claim , an FLSA pay claim for minimum wage or overtime pay for work performed under the Act, or a complaint arising under the child labor law provisions of the Act.  The FLSA does not cover or provide for awarding alternative monetary damages other than for correcting FLSA minimum wage or overtime pay violations.  Therefore, OPM cannot consider the alternative remedies suggested by the claimant within the context of the FLSA claims adjudication function it performs under 29 U.S.C. 204(f).

The first step in the FLSA claims adjudication process is to determine whether the claimant was an employee under 29 U.S.C. 204(f).  Under 5 CFR 551.705, a claimant may file an FLSA claim with either the agency employing the claimant during the claim period or with OPM.  Since FEMA terminated his appointment effective September 23, 2016, the claimant cannot be considered an employee under 29 U.S.C. 204(f) for the period of time following his termination.  He was not an employee for purposes of the FLSA for all hours he asserts working after September 23, 2016, and he thus lacks standing to bring the claim to OPM and we deny this portion of his claim for lack of jurisdiction.  The claimant also requests his job with FEMA be “restored” in an October 12, 2016, email to OPM.  We may not, however, consider his request as the FLSA claims adjudication process does not extend to intervening in management’s right under 5 U.S.C. 302 to take final action on matters pertaining to the employment, direction, and administration of agency personnel including, as discussed in 5 U.S.C. 7106, to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, reduce in grade or pay, or take other disciplinary action against such employees.

Since the claimant was no longer an employee and lacks standing to file a claim for hours he asserts working after September 23, 2016, our review will be confined to considering his claim that he worked 60 hours from September 13, 2016, to September 18, 2016, to complete his travel voucher.  The agency explains in its administrative report to OPM that the claimant originally submitted his travel voucher on September 10, 2016, and that:

On September 13, 2016, Mr. Bertrand’s voucher was returned because:  (a) it was submitted to the wrong person; (b) he failed to include an approved cost comparison since he did not travel home from his deployment by commercial airplane; (c) his travel was not completed in accordance with Agency policy; and (d) due to the amount of gas claimed without adequate justification.

The agency rejected the travel voucher resubmitted by the claimant on September 14, 2016, and subsequent travel vouchers submitted by him after September 23, 2016, when he was no longer an employee for purposes of the FLSA.

The agency’s administrative report includes an October 31, 2016, statement from a Financial Manager, who is responsible for providing oversight on travel vouchers and training on Concur.  The FEMA official explains:

On average, it takes an employee approximately 30 minutes to complete a travel voucher.  That estimate includes logging into Concur, editing the traveler’s expenses, uploading the traveler’s receipts, and stamping and submitting the travel voucher.

The claimant explains his travel voucher-related work in his October 17, 2016, letter to OPM, as follows:

The time log in Concur is after doing the research, work, copying, fax, telephone calls, emails, gathering documents, and numerous resubmissions of the exact same vouchers to many different FEMA managers…

The claimant also provided an October 13, 2016, email from the FEMA Travel Card Organization Program Coordinator, stating in part:

At this time you are not adhering to Agency travel card guidance/policy or your cardholder agreement and failure to follow-up on this notification may result in further disciplinary action and possible termination.

The claimant submitted the email as documentation he asserts shows the agency required he work on the travel voucher.  In addition to the email appearing to be a standard notice when travel cards become delinquent, we note the email date of October 13, 2016, occurred after September 23, 2016, when the claimant was no longer an employee for purposes of the FLSA and thus outside the confines of our claims review.  The claimant also submitted a log to support his claim with his October 17, 2016, letter to OPM, which shows a list of dates and times when an action was recorded on a voucher in Concur.  Since the extract only shows a single date and time that a particular action was logged, it does not provide a range of time to identify the duration of time an individual actually spent in the Concur system.

The agency states in its administrative report to OPM:

The sole reason for any additional time preparing and delay in the processing of Mr. Bertrand’s travel voucher is his repeated failure to comply with the Agency’s policies, directions, and guidance, combined with his failure to follow the FTR, resulting in the justified and repeated rejection of his travel voucher.  Instead of simply complying, he has repeatedly resubmitted his voucher over and over to various employees, in the apparent hope that a new person might overlook the vouchers’ deficiencies and improperly pay him.  The evidence of this is as incontrovertible as it is abundant.

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Specifically, Mr. Bertrand admitted that he spent his time “resubmitting numerous resubmissions of the exact same vouchers to many different FEMA managers…”…This admission makes two facts, both fatal to his claim for hundreds of hours of compensation, abundantly clear:  (1) he has not spent hundreds of hours working on this because, by his own admission, he has been “resubmitting numerous resubmissions of the exact same vouchers…,” which would indicate that he made one deficient voucher and has resubmitted it repeatedly; and (2) he has failed or refused to make any of the necessary corrections as directed by the Agency as evidenced by the fact that he admitted that he has been submitting the exact same vouchers to various FEMA employees.

Relevant to the claimant’s situation is the definition provided by 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…However, whether time is credited as hours of work is determined by considering many factors, such as…Comptroller General decisions, OPM decisions and policy guidance, agency policy, negotiated agreements, the rules in part 550 of this chapter (for hours of work for travel), and the rules in part 410 of this chapter (for hours of work for training).

It is clear any work performed by an employee for the benefit of the agency and under their control or direction is considered “work performed.”  A “benefit” is defined by the Merriam-Webster’s online dictionary as “something that produces good or helpful results or effects or that promotes well-being.”  We considered the claimant’s request for 60 hours of work (even though we note this does not account for the hundreds of hours being requested which he states occurred when he was no longer an employee for FLSA purposes) to complete a travel voucher associated with his travel from the Texas disaster support operation to Nashville, for which he requests 28 hours of time spent traveling.  He asserts working on a travel voucher for a period of time vastly exceeding the amount of actual travel time claimed.  We conclude the agency derives no benefit, i.e., defined as “something that produces good or helpful results,” from an employee expending more time on the completion of a travel voucher than on the actual travel time.  Moreover, it is evident the claimant’s voucher-related work was not under the agency’s control or direction.  The agency estimates it takes 30 minutes for an employee to complete a travel voucher.  In addition, FEMA Manual 122-1-1 instructs travelers to submit travel vouchers no more than five business days after travel ends or every fourteen days for extended temporary duty assignments (30 days or longer).  Had the claimant’s voucher work been performed under the control or direction of the agency, his work would have been completed in approximately 30 minutes and five business days after his travel ended rather than nearly two months later on September 10, 2016.  Because we are unable to identify the benefit to the agency from the claimant’s voucher work and because his activities were contrary to agency policy and practices and thus not performed under the control or direction of the agency, we conclude the claimant’s voucher-related work cannot be considered “hours of work” as defined by 5 CFR 551.104 and he is not entitled to additional pay.

Other Claims

The claimant also requests assistance in obtaining approval for his travel voucher, which was rejected by the agency no less than 10 times.  Payment for any expenses associated with the travel voucher itself is not within our program jurisdiction.  OPM does not have authority to consider the claimant’s voucher request or assert jurisdiction over any claim against FEMA regarding the travel voucher.  The U.S. General Services Administration (GSA), not OPM, is responsible for issuing regulations on travel, transportation, and subsistence expenses and allowances for Federal civilian employees as authorized in chapter 57 of 5 U.S.C.  GSA’s Civilian Board of Contract Appeals is responsible for settling travel, transportation, and subsistence claims (http://www.cbca.gsa.gov/).  Therefore, this portion of the claim is denied for lack of jurisdiction.

The claimant’s allegations that FEMA’s actions are in violation of 49 CFR Part 395, regulations administered by the U.S. Department of Transportation relating to hours of service for commercial motor vehicle drivers, have no bearing on our adjudication of his FLSA claim and will not be considered or addressed further.

Decision

The claimant is not entitled to additional pay for time spent traveling and time spent completing the associated travel voucher when he was employed by FEMA.  Additionally, for the period of the claim that he was not an employee for purposes of the FLSA, he lacks standing to bring the claim and we deny it for lack of jurisdiction.

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