B-175608, JUN 19, 1972

B-175608, JUN 19, 1972

CIVILIAN EMPLOYEE - CLAIM FOR OVERTIME COMPENSATION - STATUTORY INTERPRETATION DECISION DENYING THE CLAIM OF DICK GAMBLE FOR OVERTIME COMPENSATION UNDER 5 U.S.C. 5542, FOR TRAVEL PERFORMED AS A MEAT GRADER WITH THE CONSUMER AND MARKETING SERVICE, BECAUSE HIS ASSIGNMENTS ARE ADMINISTRATIVELY SCHEDULED AND CONTROLLED. WITH REGARD TO RELATED INQUIRIES, IT IS THE OPINION OF THE COMP. GEN. THAT CONGRESS INTENDED THE SAME CONSTRUCTION OF THE PHRASE "AWAY FROM THE OFFICIAL STATION" IN 5 U.S.C. 5542(B)(2)(B) AS IS PROVIDED IN THE SGTR. THOSE REGULATIONS LIMIT THE OFFICIAL DUTY STATION TO THE CORPORATE LIMITS OF THE CITY, AND THE AGENCY MAY NOT DEFEAT SUCH INTENT BY MERELY REDEFINING WHAT WILL BE CONSIDERED THE EMPLOYEE'S OFFICIAL STATION FOR PURPOSES OF DETERMINING ENTITLEMENT TO OVERTIME. OF COURSE, THE FOREGOING IS INAPPLICABLE TO DETERMINATIONS CONCERNING MILEAGE ALLOWANCE AND PER DIEM.

TO MR. STEVE F. HELLER:

WE REFER TO YOUR LETTER OF RECENT DATE FORWARDING FOR OUR CONSIDERATION MR. DICK GAMBLE'S CLAIM FOR OVERTIME COMPENSATION FOR TIME SPENT IN A TRAVEL STATUS.

YOU EXPLAIN THAT AS A MEAT GRADER WITH THE MEAT GRADING BRANCH, LIVESTOCK DIVISION, CONSUMER AND MARKETING SERVICE, MR. GAMBLE IS AT TIMES REQUIRED TO PROVIDE MEAT GRADING SERVICES TO PLANTS WHICH ALTHOUGH BEYOND THE CORPORATE LIMITS OF OMAHA, NEBRASKA, ARE NEVERTHELESS WITHIN THE OMAHA METROPOLITAN AREA. IN THE PARTICULAR INSTANCE FROM WHICH MR. GAMBLE'S CLAIM ARISES, HE WAS REQUIRED TO PROVIDE GRADING SERVICES AT A PLANT LOCATED IN COUNCIL BLUFFS, IOWA, WHICH IS BEYOND THE CORPORATE LIMITS OF OMAHA. YOU INDICATE THAT THE OVERTIME CLAIM WAS ADMINISTRATIVELY DISALLOWED DUE TO THE PLANT'S LOCATION WITHIN THE METROPOLITAN AREA OF MR. GAMBLE'S PERMANENT DUTY STATION. FOR PURPOSES OF ENTITLEMENT TO OVERTIME COMPENSATION FOR TIME IN TRAVEL STATUS, PER DIEM AND MILEAGE, THE CONSUMER AND MARKETING SERVICE REQUIRES THAT THE TEMPORARY DUTY LOCATION BE OUTSIDE THE METROPOLITAN AREA OF THE EMPLOYEE'S DUTY STATION.

SECTION 5542 OF TITLE 5 OF THE U.S.C. PROVIDES IN PART WITH REGARD TO OVERTIME COMPENSATION FOR TIME IN A TRAVEL STATUS:

"(A) HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR *** IN EXCESS OF 8 HOURS IN A DAY, PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK AND SHALL BE PAID FOR ***

"(B) FOR THE PURPOSE OF THIS SUBCHAPTER -

"(2) TIME SPENT IN A TRAVEL STATUS AWAY FROM OFFICIAL-DUTY STATION OF AN EMPLOYEE IS NOT HOURS OF EMPLOYMENT UNLESS -

"(B) THE TRAVEL (I) INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING, (II) IS INCIDENT TO TRAVEL THAT INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING, (III) IS CARRIED OUT UNDER ARDUOUS CONDITIONS, OR (IV) RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY."

IN 50 COMP. GEN. 519 (1971), WE CONSIDERED THE SITUATION (FOURTH CASE, PAGE 525), OF AN AGRICULTURAL COMMODITY GRADER WITH THE LIVESTOCK DIVISION, CONSUMER AND MARKETING SERVICE, WHO WAS REQUIRED, ON TWO SPECIFIC OCCASIONS, TO TRAVEL ON SUNDAY IN ORDER TO PERFORM MEAT GRADING SERVICES AT 6 A.M. MONDAY MORNING. IT WAS INDICATED BY THE ASSISTANT SECRETARY FOR ADMINISTRATION IN THE SUBMISSION OF THAT CASE THAT APPLICANTS REQUEST GRADING SERVICES AT SPECIFIC HOURS AND THAT IN VIEW OF THE INSPECTION OBLIGATION PLACED UPON YOUR AGENCY BY STATUTE IT HAS BEEN THE POLICY OF THE DEPARTMENT TO MEET THEIR REQUESTS EVEN THOUGH DOING SO REQUIRES TRAVEL BY EMPLOYEES OUTSIDE THEIR REGULAR HOURS OF WORK. THUS, THE SITUATION RELATED TO THE OCCURRENCE OF AN ADMINISTRATIVELY UNCONTROLLABLE EVENT WHICH REQUIRED THE TRAVEL TO BE SCHEDULED OUTSIDE THE EMPLOYEE'S REGULAR WORKING HOURS. WE THERE STATED THAT WHERE THE SPECIFIC NEEDS OF APPLICANTS ARE SUCH THAT SERVICES MUST BE PROVIDED WHEN REQUESTED AND TO THE EXTENT THAT ON THIS ACCOUNT AN EMPLOYEE'S TRAVEL CANNOT BE SCHEDULED DURING HIS REGULAR DUTY HOURS HIS TRAVEL IS COMPENSABLE AT OVERTIME RATES. WE INDICATED THAT UNDER THE CIRCUMSTANCES THERE RELATED WE VIEWED THE NEEDS OF APPLICANTS FOR INSPECTION AND GRADING SERVICES AS AN EVENT OVER WHICH THE AGENCY HAS NO ADMINISTRATIVE CONTROL, GIVING RISE TO AN OFFICIAL NECESSITY FOR THE TRAVEL.

AS WE UNDERSTAND THE SITUATION IN MR. GAMBLE'S CASE, HIS ASSIGNMENT AS A GRADER TO A PARTICULAR PLANT IS ON A ROTATIONAL BASIS FOR A 90-DAY PERIOD. TRAVEL IS PERFORMED EACH DAY BETWEEN THE EMPLOYEE'S RESIDENCE AND A DUTY POINT WITHIN THE METROPOLITAN AREA ADJACENT TO HIS PERMANENT DUTY STATION. THE WORK HOURS AND THE LENGTH OF THE ASSIGNMENT TO A PLANT WOULD APPEAR TO HAVE BEEN ESTABLISHED BY THE CONSUMER AND MARKETING SERVICE FOR REASONS OF SOUND MANAGEMENT AND THE FURNISHING OF ACCEPTABLE GRADING SERVICES TO THE PUBLIC. THUS, THEY ARE BASED PRIMARILY ON AGENCY POLICY CONSIDERATIONS. THERE IS NOT INVOLVED HERE THE OCCURRENCE OF AN ADMINISTRATIVELY UNCONTROLLABLE EVENT REQUIRING THE TRAVEL TO BE SCHEDULED OUTSIDE THE EMPLOYEE'S REGULAR WORKING HOURS. UNDER THESE CIRCUMSTANCES, OUR OPINION IS THAT THE CONDITIONS OF THE GRADING ASSIGNMENTS CAN BE AND ARE ADMINISTRATIVELY SCHEDULED OR CONTROLLED. ACCORDINGLY, MR. GAMBLE IS NOT ENTITLED TO OVERTIME COMPENSATION FOR THE TRAVEL TIME IN QUESTION.

THERE FOLLOWS ANSWERS TO CERTAIN QUESTIONS RELATED TO DESIGNATING THE METROPOLITAN AREAS OF CITIES AS THE OFFICIAL DUTY STATIONS OF MEAT GRADERS FOR PURPOSES OF PAYMENT OF TRAVEL EXPENSES AND OVERTIME COMPENSATION IN SITUATIONS WHERE THE TRAVEL TIME IS REGARDED AS MEETING THE CRITERIA SET FORTH IN 5 U.S.C. 5542(B)(2)(B) FOR PURPOSES OF OVERTIME COMPENSATION.

THE IMPLEMENTING REGULATIONS OF THE CIVIL SERVICE COMMISSION, FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK 550, SUBCHAPTER S1-3, UNDER 5 U.S.C. 5542(B)(2)(B) PROVIDE AS FOLLOWS:

"(III) TIME IN TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY STATION.

" - BEFORE CONSIDERING THE VARIOUS CONDITIONS UNDER WHICH TRAVEL IS CONSIDERED HOURS OF WORK, IT IS WELL TO CONSIDER WHEN AN EMPLOYEE'S TIME IN TRAVEL STATUS BEGINS, AND WHAT IS MEANT BY (1) OFFICIAL DUTY STATION, AND (2) TRAVEL STATUS.

" - BY OFFICIAL DUTY STATION WE MEAN THE EMPLOYEE'S DESIGNATED POST OF DUTY, THE LIMITS OF WHICH WILL BE THE CORPORATE LIMITS OF THE CITY OR TOWN IN WHICH THE EMPLOYEE IS STATIONED, BUT IF NOT STATIONED IN AN INCORPORATED CITY OR TOWN, THE OFFICIAL DUTY STATION IS THE RESERVATION, STATION, OR ESTABLISHED AREA, OR, FOR LARGE RESERVATIONS, THE ESTABLISHED SUBDIVISION THEREOF, HAVING DEFINITE BOUNDARIES WITHIN WHICH THE DESIGNATED POST OF DUTY IS LOCATED. THIS USE IS THE SAME USE OF THIS TERM AS IN THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS."

WE NOTE THAT BY MEMORANDUM OF JULY 28, 1971, YOUR DIVISION ISSUED AN INSTRUCTION WHICH PROVIDES THAT THE TERM "CORPORATE LIMITS" AS USED IN YOUR DEPARTMENT'S REGULATIONS IMPLEMENTING THE ABOVE SHOULD BE INTERPRETED TO MEAN "METROPOLITAN AREA." IN SUPPORT OF SUCH INSTRUCTION THE FILE CONTAINS A REFERENCE TO 29 COMP. GEN. 457 (1950) WHICH INVOLVED A COAST GUARD OFFICER WHO WAS HELD NOT TO BE IN A "TRAVEL STATUS" FOR TRAVEL PERFORMED WITHIN THE METROPOLITAN AREA OF PHILADELPHIA, PENNSYLVANIA. POINT OUT THAT THE DETERMINATION IN THAT CASE TURNED UPON REGULATIONS ISSUED BY THE COAST GUARD FOR ITS MILITARY MEMBERS AND IS NOT DEEMED APPLICABLE TO FEDERAL CIVILIAN EMPLOYEES WHO ARE SUBJECT TO DIFFERENT LAWS AND REGULATIONS.

ENTITLEMENT TO OVERTIME COMPENSATION, ASSUMING THAT THE TRAVEL MEETS ONE OF THE CRITERIA OF 5 U.S.C. 5542(B)(2)(B) IS CONDITIONAL ONLY UPON (1) SUCH TRAVEL HAVING BEEN ORDERED OR APPROVED AND (2) THE TRAVEL BEING "AWAY FROM THE OFFICIAL STATION" OF THE EMPLOYEE. WE BELIEVE THAT CONGRESS INTENDED THE SAME CONSTRUCTION OF THE PHRASE "AWAY FROM THE OFFICIAL STATION" AS IS PROVIDED IN THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS (SGTR) AND WHICH HAS BEEN INCORPORATED IN THE CIVIL SERVICE COMMISSION'S REGULATIONS, QUOTED ABOVE. WHEN SUCH CONDITIONS ARE MET ENTITLEMENT TO OVERTIME COMPENSATION IS ESTABLISHED AND AGENCIES MAY NOT DEFEAT THAT ENTITLEMENT BY REDEFINING WHAT WILL BE CONSIDERED TO BE THE EMPLOYEE'S OFFICIAL STATION.

FOR THE PURPOSE OF ENTITLEMENT TO AN ALLOWANCE FOR MILEAGE FOR USE OF A PRIVATELY OWNED AUTOMOBILE, THE DEFINITION OF OFFICIAL DUTY STATION DOES NOT APPEAR MATERIAL SINCE AN AGENCY MAY AUTHORIZE OR APPROVE MILEAGE FOR TRAVEL WITHIN THE LIMITS OF THE OFFICIAL DUTY STATION EXCEPT FOR TRAVEL FROM RESIDENCE TO OFFICIAL HEADQUARTERS. IN THAT CONNECTION SEE 36 COMP. GEN. 795 (1957); 46 COMP. GEN. 718 (1967) AND SECTION 2.3 OF SGTR. IN THE CASE OF PER DIEM FOR TRAVEL OUTSIDE THE CORPORATE LIMITS OF AN OFFICIAL DUTY STATION BUT STILL WITHIN THE METROPOLITAN AREA THEREOF, IT WOULD SEEM TO US THAT THIS COULD BE CONTROLLED BY THE AUTHORITY CONTAINED IN SECTION 6.3 OF SGTR WHICH PROVIDES:

"6.3 AGENCY RESPONSIBILITY FOR PRESCRIBING INDIVIDUAL RATES.

"A. GENERAL. IT IS THE RESPONSIBILITY OF EACH DEPARTMENT AND AGENCY TO AUTHORIZE ONLY SUCH PER DIEM ALLOWANCES AS ARE JUSTIFIED BY THE CIRCUMSTANCES AFFECTING THE TRAVEL. CARE SHOULD BE EXERCISED TO PREVENT FIXING PER DIEM RATES IN EXCESS OF THOSE REQUIRED TO MEET THE NECESSARY AUTHORIZED SUBSISTENCE EXPENSES. TO THIS END, CONSIDERATION SHOULD BE GIVEN TO FACTORS WHICH WILL REDUCE THE EXPENSES OF THE EMPLOYEE *** "

REGARDING YOUR QUESTION AS TO THE FEE STRUCTURE ESTABLISHED BY THE DEPARTMENT OF AGRICULTURE, REGULATORY PROVISIONS COVERING THE FEES CHARGED TO APPLICANTS ARE A MATTER COVERED BY A SEPARATE STATUTE (7 U.S.C. 1622) AND INVOLVE CONSIDERATIONS NOT INVOLVED IN THE EMPLOYEE'S CLAIM FOR OVERTIME. MOREOVER, WE DO NOT HAVE SUFFICIENT DETAILS AS TO FACTORS ADMINISTRATIVELY CONSIDERED BY THE DEPARTMENT IN EXERCISING ITS FEE SETTING AUTHORITY. THEREFORE, WE MUST AT THIS TIME DECLINE TO RULE ON YOUR QUESTION CONCERNING THE FEE STRUCTURE ESTABLISHED BY THE REGULATIONS.