B-183751, OCT 3, 1975
Highlights
EMPLOYEE OF NATIONAL PARK SERVICE MAY BE PAID OVERTIME PAY IN LIEU OF COMPENSATORY TIME WHICH HE WAS UNABLE TO USE DUE TO REASONS BEYOND HIS CONTROL. UNTIL COMPENSATORY TIME EARNED BY EMPLOYEE IS GRANTED BY AGENCY - OR IS TENDERED BY THE AGENCY AND REFUSED BY THE EMPLOYEE - THE OBLIGATION TO PAY OVERTIME IS NOT EXTINGUISHED. THE SUPERVISOR STATED THAT IT WAS NOT PRACTICAL TO ALLOW MR. WILCOX TO TAKE LEAVE AT THE TIME IT WAS EARNED OR AT THE PRESENT TIME DUE TO A MANPOWER SHORTAGE IN THE OFFICE OF CONSTRUCTION SERVICES. THIS REQUEST WAS APPROVED BY THE DIRECTOR OF THE DENVER SERVICE CENTER ON JULY 12. SECTION 550.114(C) PROVIDES THAT AN EMPLOYEE SHALL LOSE HIS RIGHT TO COMPENSATORY TIME OFF IF IT IS NOT USED UNLESS THE FAILURE TO USE IT IS DUE TO AN EXIGENCY OF THE SERVICE BEYOND THE EMPLOYEE'S CONTROL.
B-183751, OCT 3, 1975
EMPLOYEE OF NATIONAL PARK SERVICE MAY BE PAID OVERTIME PAY IN LIEU OF COMPENSATORY TIME WHICH HE WAS UNABLE TO USE DUE TO REASONS BEYOND HIS CONTROL, I.E., A SHORTAGE OF MANPOWER IN HIS OFFICE. UNTIL COMPENSATORY TIME EARNED BY EMPLOYEE IS GRANTED BY AGENCY - OR IS TENDERED BY THE AGENCY AND REFUSED BY THE EMPLOYEE - THE OBLIGATION TO PAY OVERTIME IS NOT EXTINGUISHED.
MILLARD W. WILCOX - REQUEST FOR PAYMENT FOR COMPENSATORY TIME:
MR. FRED L. HAYES, AN AUTHORIZED CERTIFYING OFFICER AT THE ROCKY MOUNTAIN REGIONAL OFFICE, NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR, REQUESTS AN ADVANCE DECISION ON THE PROPRIETY OF PAYING 765 HOURS OF COMPENSATORY TIME CLAIMED BY MR. MILLARD W. WILCOX, AN EMPLOYEE OF THE DENVER SERVICE CENTER OF THE NATIONAL PARK SERVICE.
THE RECORD SHOWS THAT IN A MEMORANDUM DATED JUNE 4, 1973, MR. WILCOX'S SUPERVISOR REQUESTED THAT HE BE PAID FOR 215 HOURS OF COMPENSATORY TIME ACCRUED DURING HIS ASSIGNMENT ON THE TRANS CANYON WATER LINE. THE SUPERVISOR STATED THAT IT WAS NOT PRACTICAL TO ALLOW MR. WILCOX TO TAKE LEAVE AT THE TIME IT WAS EARNED OR AT THE PRESENT TIME DUE TO A MANPOWER SHORTAGE IN THE OFFICE OF CONSTRUCTION SERVICES. THIS REQUEST WAS APPROVED BY THE DIRECTOR OF THE DENVER SERVICE CENTER ON JULY 12, 1973. PRIOR TO THAT TIME MR. WILCOX APPARENTLY HAD FORFEITED 550 ADDITIONAL HOURS OF COMPENSATORY TIME UNDER THE 6-MONTH TIME LIMIT SET BY THE DEPARTMENT OF THE INTERIOR IN ACCORDANCE WITH 5 C.F.R. SEC. 550.114(C).
SECTION 550.114(C) PROVIDES THAT AN EMPLOYEE SHALL LOSE HIS RIGHT TO COMPENSATORY TIME OFF IF IT IS NOT USED UNLESS THE FAILURE TO USE IT IS DUE TO AN EXIGENCY OF THE SERVICE BEYOND THE EMPLOYEE'S CONTROL. IN THE PRESENT CASE, IT APPEARS THAT THE 215 HOURS OF COMPENSATORY TIME CLAIMED BY MR. WILCOX (WHICH THE CERTIFYING OFFICER STATES SHOULD BE 206 HOURS) WERE NOT USED DUE TO CIRCUMSTANCES BEYOND HIS CONTROL.
THE GRANTING OF COMPENSATORY LEAVE IN LIEU OF OVERTIME PAY IS WITHIN THE ADMINISTRATIVE DISCRETION OF AN AGENCY. 5 C.F.R. SEC. 550.114(A). HOWEVER, WE STATED IN B-159597, AUGUST 2, 1966, THAT "UNTIL SUCH COMPENSATORY TIME OFF IS IN FACT GRANTED - OR IS TENDERED BY THE AGENCY AND REFUSED BY THE EMPLOYEE - THE OBLIGATION TO PAY OVERTIME COMPENSATION IS NOT EXTINGUISHED." ACCORDINGLY, WE HAVE NO OBJECTION TO PAYING THE 206 HOURS OF OVERTIME COMPENSATION, IF OTHERWISE CORRECT.
THERE IS NO EVIDENCE IN THE RECORD, OTHER THAN THE STATEMENT OF MR. WILCOX, THAT THE 550 ADDITIONAL HOURS OF COMPENSATORY TIME CLAIMED WERE NOT USED DUE TO CIRCUMSTANCES BEYOND THE EMPLOYEE'S CONTROL, I.E., AN EXIGENCY OF THE SERVICE. ACCORDINGLY, NO PAYMENT SHOULD BE MADE FOR THESE HOURS.