B-166565, APR. 29, 1969

B-166565: Apr 29, 1969

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WAS DISALLOWED. YOU CLAIM OVERTIME COMPENSATION FOR A TOTAL OF 246 HOURS ON THE BASIS THAT DURING THE PERIOD IN QUESTION YOU FELT IT WAS NECESSARY TO WORK ON SPECIFIED DAYS FROM ONE TO TWO HOURS BEYOND YOUR SCHEDULED TOUR OF DUTY IN VIEW OF THE GENERALLY HEAVY WORKLOAD. YOU SAY THAT YOU DID NOT OBTAIN PRIOR APPROVAL FOR OVERTIME WORK BECAUSE NO ONE IN YOUR OFFICE IN ATLANTA WAS YOUR DIRECT SUPERVISOR AND BECAUSE YOU WERE UNABLE TO ESTABLISH COMMUNICATION WITH YOUR SUPERVISOR IN THE WASHINGTON. YOUR OFFICIAL TIME RECORDS FOR THE PERIOD DO NOT SHOW THAT OVERTIME WAS WORKED. WERE IN PERTINENT PART AS FOLLOWS: "SEC. 911. WHOSE RATE OF BASIC COMPENSATION IS IN EXCESS OF THE MAXIMUM SCHEDULED RATE * * * FOR GRADE GS-9 IN THE CLASSIFICATION ACT OF 1949.

B-166565, APR. 29, 1969

TO MRS. MABRY:

WE REFER TO YOUR LETTER OF MARCH 20, 1969, REQUESTING THAT WE REVIEW THE OFFICE SETTLEMENT OF MARCH 14, 1969, BY WHICH YOUR CLAIM FOR OVERTIME COMPENSATION AS AN EMPLOYEE OF THE OFFICE OF ECONOMIC OPPORTUNITY, ATLANTA, GEORGIA, DURING THE PERIOD APRIL 26 TO DECEMBER 23, 1965, WAS DISALLOWED.

YOU CLAIM OVERTIME COMPENSATION FOR A TOTAL OF 246 HOURS ON THE BASIS THAT DURING THE PERIOD IN QUESTION YOU FELT IT WAS NECESSARY TO WORK ON SPECIFIED DAYS FROM ONE TO TWO HOURS BEYOND YOUR SCHEDULED TOUR OF DUTY IN VIEW OF THE GENERALLY HEAVY WORKLOAD. YOU SAY THAT YOU DID NOT OBTAIN PRIOR APPROVAL FOR OVERTIME WORK BECAUSE NO ONE IN YOUR OFFICE IN ATLANTA WAS YOUR DIRECT SUPERVISOR AND BECAUSE YOU WERE UNABLE TO ESTABLISH COMMUNICATION WITH YOUR SUPERVISOR IN THE WASHINGTON, D.C. OFFICE TO OBTAIN PRIOR AUTHORITY FOR OVERTIME WORK. YOUR OFFICIAL TIME RECORDS FOR THE PERIOD DO NOT SHOW THAT OVERTIME WAS WORKED.

THE CONTROLLING PROVISIONS OF LAW DURING THE PERIOD INVOLVED AS CONTAINED IN 5 U.S.C. 911 AND 912 (1964 ED.) WERE IN PERTINENT PART AS FOLLOWS: "SEC. 911. PAYMENT OF OVERTIME; RATES.

"/A) ALL HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK PERFORMED BY OFFICERS AND EMPLOYEES * * * SHALL BE CONSIDERED TO BE OVERTIME WORK AND COMPENSATION FOR SUCH OVERTIME WORK, EXCEPT AS OTHERWISE PROVIDED FOR IN THIS CHAPTER, SHALL BE AT THE FOLLOWING RATES:

* * * * * * * "SEC. 912. COMPENSATORY TIME OFF FOR IRREGULAR OR OCCASIONAL OVERTIME WORK.

"/A) THE HEAD OF ANY DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR AGENCY * * * MAY, AT HIS OWN DISCRETION, PROVIDE THAT ANY OFFICER OR EMPLOYEE, WHOSE RATE OF BASIC COMPENSATION IS IN EXCESS OF THE MAXIMUM SCHEDULED RATE * * * FOR GRADE GS-9 IN THE CLASSIFICATION ACT OF 1949, AS AMENDED, SHALL BE COMPENSATED FOR IRREGULAR OR OCCASIONAL OVERTIME WORK FOR WHICH COMPENSATION WOULD BE DUE UNDER THIS CHAPTER WITH AN EQUAL AMOUNT OF COMPENSATORY TIME OFF FROM HIS SCHEDULED TOUR OF DUTY IN LIEU OF SUCH COMPENSATION.'

THE REPORT FURNISHED US BY THE OFFICE OF ECONOMIC OPPORTUNITY IN CONNECTION WITH YOUR CLAIM INDICATES THAT IT WAS THE PUBLISHED POLICY OF THE AGENCY DURING THE PERIOD IN QUESTION TO REQUIRE ALL OVERTIME TO BE OFFICIALLY DIRECTED ON THE BASIS OF AN ADVANCE REQUEST AND JUSTIFICATION, AND THAT COMPENSATORY TIME WAS TO BE ALLOWED IN LIEU OF OVERTIME COMPENSATION TO ALL EMPLOYEES WHOSE SALARY WAS ABOVE THE MAXIMUM RATE FOR GRADE GS-9. IN VIEW OF THOSE PROCEDURES THE AGENCY DID NOT APPROVE PAYMENT TO YOU OF THE OVERTIME COMPENSATION CLAIMED.

ADMINISTRATIVE REGULATIONS GOVERNING THE AUTHORIZATION AND APPROVAL OF OVERTIME WORK MUST BE FOLLOWED BEFORE PAYMENT OF OVERTIME COMPENSATION IS PROPER SO THAT AN AGENCY WILL BE ABLE TO RETAIN CONTROL OF OVERTIME WORK. SEE B-163866, MAY 7, 1968, COPY ENCLOSED, AND COURT OF CLAIMS CASES CITED THEREIN.

IT IS UNFORTUNATE THAT YOU WERE NOT ADVISED OF THE PROCEDURES AND POLICIES OF THE OFFICE OF ECONOMIC OPPORTUNITY WITH REGARD TO OVERTIME SINCE YOU DID PERFORM A SUBSTANTIAL AMOUNT OF OVERTIME WORK FOR WHICH YOU CANNOT NOW BE PAID. HOWEVER, THE ADMINISTRATIVE DIFFICULTIES YOU ENCOUNTERED IN OBTAINING INFORMATION WITH REGARD TO SUCH POLICIES DOES NOT JUSTIFY A DEPARTURE FROM THE RULE THAT THE GOVERNMENT IS LIABLE FOR OVERTIME COMPENSATION ONLY WHEN THE EMPLOYEE CONCERNED HAS BEEN PROPERLY AUTHORIZED TO WORK OVERTIME OR OVERTIME WORKED HAS BEEN SUBSEQUENTLY APPROVED BY THE AGENCY.

FOR THE REASONS STATED THE SETTLEMENT DISALLOWING YOUR CLAIM MUST BE SUSTAINED.