B-181316, AUG 23, 1974

B-181316: Aug 23, 1974

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

HE IS NOT ENTITLED TO OVERTIME COMPENSATION SINCE 5 U.S.C. 6101(B)(2). DOES NOT AUTHORIZE OVERTIME AND THE TRAVEL IS NOT WITHIN THE OVERTIME PROVISIONS OF 5 U.S.C. 5542. NICOLAI WAS DETAILED TO THE FAA'S REGIONAL OFFICE IN AURORA. NICOLAI WAS ON A TUESDAY THROUGH THURSDAY DETAIL IN AURORA. NICOLAI WAS ON A MONDAY THROUGH FRIDAY WORKWEEK IN AURORA AND TRAVEL TO AND FROM BATTLE CREEK WAS PERFORMED OUTSIDE OF REGULAR DUTY HOURS. TRAVELING TO AND FROM AURORA WAS DISALLOWED BY OUR TRANSPORTATION AND CLAIMS DIVISION. HE APPEALS ON THE GROUND THAT THE TRAVEL AND DETAIL WERE NOT OF AN EMERGENCY NATURE AND COULD HAVE BEEN SCHEDULED TO AVOID TRAVEL OUTSIDE OF NORMAL DUTY HOURS. WHILE THE BAYLOR CASE INVOLVED TRAVEL BETWEEN THE POINTS WHERE WEAPONS WERE DRAWN AND THE POSTS OF DUTY.

B-181316, AUG 23, 1974

ALTHOUGH AN EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION AT BATTLE CREEK, MICHIGAN, DETAILED TO A REGIONAL OFFICE 200 MILES FROM HIS PERMANENT DUTY STATION, TRAVELED TO AND FROM BATTLE CREEK OUTSIDE OF REGULAR DUTY HOURS, HE IS NOT ENTITLED TO OVERTIME COMPENSATION SINCE 5 U.S.C. 6101(B)(2), WHICH PROVIDES THAT AN EMPLOYEE'S TRAVEL SHOULD GENERALLY BE SCHEDULED DURING REGULAR WORKING HOURS, DOES NOT AUTHORIZE OVERTIME AND THE TRAVEL IS NOT WITHIN THE OVERTIME PROVISIONS OF 5 U.S.C. 5542.

FREDERICK M. NICOLAI - OVERTIME COMPENSATION:

THIS DECISION CONCERNS AN APPEAL FROM THE DISALLOWANCE OF A CLAIM FOR OVERTIME COMPENSATION BY FREDERICK M. NICOLAI, AN EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION (FAA) AT BATTLE CREEK, MICHIGAN.

FROM JUNE 1970 THROUGH DECEMBER 1971, MR. NICOLAI WAS DETAILED TO THE FAA'S REGIONAL OFFICE IN AURORA, ILLINOIS. DURING THE PERIOD FROM JUNE 1970 UNTIL AUGUST 1971, MR. NICOLAI WAS ON A TUESDAY THROUGH THURSDAY DETAIL IN AURORA, AND TRAVELED DURING DUTY HOURS ON MONDAY AND FRIDAY THE 200 MILES TO AND FROM BATTLE CREEK. FROM AUGUST 1971 THROUGH DECEMBER 1971, MR. NICOLAI WAS ON A MONDAY THROUGH FRIDAY WORKWEEK IN AURORA AND TRAVEL TO AND FROM BATTLE CREEK WAS PERFORMED OUTSIDE OF REGULAR DUTY HOURS.

MR. NICOLAI'S CLAIM FOR OVERTIME COMPENSATION FOR THE TIME SPENT, OUTSIDE OF REGULAR DUTY HOURS, TRAVELING TO AND FROM AURORA WAS DISALLOWED BY OUR TRANSPORTATION AND CLAIMS DIVISION. HE APPEALS ON THE GROUND THAT THE TRAVEL AND DETAIL WERE NOT OF AN EMERGENCY NATURE AND COULD HAVE BEEN SCHEDULED TO AVOID TRAVEL OUTSIDE OF NORMAL DUTY HOURS. IN SUPPORT OF HIS CONTENTION MR. NICOLAI CITES BAYLOR V. UNITED STATES, 198 CT. CL. 331 (1972).

THE BAYLOR CASE INVOLVED THE OVERTIME COMPENSATION CLAIMS OF GENERAL SERVICES ADMINISTRATION GUARDS, AND AROSE OUT OT THE REQUIREMENT THAT THE GUARDS REPORT EARLY FOR MUSTERING, CHANGING OF UNIFORMS, AND DRAWING OF WEAPONS. WHILE THE BAYLOR CASE INVOLVED TRAVEL BETWEEN THE POINTS WHERE WEAPONS WERE DRAWN AND THE POSTS OF DUTY, IT DID NOT INVOLVE TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY STATION, AS IS INVOLVED IN THIS CASE. THEREFORE, IT IS INAPPLICABLE.

AUTHORITY FOR THE PAYMENT OF TIME IN A TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY STATION OF AN EMPLOYEE IS PROVIDED FOR IN 5 U.S.C. 5542(B)(2)(B) AND PROVIDES IN PERTINENT PART:

"(B) FOR THE PURPOSE OF THIS SUBCHAPTER --

"(2) TIME SPENT IN A TRAVEL STATUS AWAY FROM THE 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."

MR. NICOLAI DOES NOT REQUEST PAYMENT ON THE GROUND THAT HIS CASE COMES WITHIN THE ABOVE PROVISION. RATHER, HE CONTENDS THAT HE SHOULD BE PAID OVERTIME BECAUSE HIS TRAVEL COULD HAVE BEEN SCHEDULED WITHIN HIS REGULAR WORKING HOURS. IN THIS CONNECTION 5 U.S.C. 6101(B)(2) PROVIDES:

"(2) TO THE MAXIMUM EXTENT PRACTICABLE, THE HEAD OF AN AGENCY SHALL SCHEDULE THE TIME TO BE SPENT BY AN EMPLOYEE IN A TRAVEL STATUS AWAY FROM HIS OFFICIAL DUTY STATION WITHIN THE REGULARLY SCHEDULED WORKWEEK OF THE EMPLOYEE."

WHEN AN EMPLOYEE IS REQUIRED TO PERFORM NONCOMPENSABLE TRAVEL OUTSIDE OF HIS REGULARLY SCHEDULED WORKWEEK THE PROVISIONS OF SECTION 610.123 OF TITLE 5, CODE OF FEDERAL REGULATIONS, PROMULGATED BY THE CIVIL SERVICE COMMISSION UNDER 5 U.S.C. 6101(B)(2), ARE TO BE COMPLIED WITH. THAT SECTION PROVIDES:

"INSOFAR AS PRACTICABLE TRAVEL DURING NONDUTY HOURS SHALL NOT BE REQUIRED OF AN EMPLOYEE. WHEN IT IS ESSENTIAL THAT THIS BE REQUIRED AND THE EMPLOYEE MAY NOT BE PAID OVERTIME UNDER 8550.112(E) OF THIS CHAPTER THE OFFICIAL CONCERNED SHALL RECORD HIS REASONS FOR ORDERING TRAVEL AT THOSE HOURS AND SHALL, UPON REQUEST, FURNISH A COPY OF HIS STATEMENT TO THE EMPLOYEE CONCERNED."

THE REFERENCE THEREIN TO SECTION 550.112(E), WHICH IMPLEMENTS THE AUTHORITY FOR PAYMENT OF OVERTIME COMPENSATION FOR TIME SPENT IN A TRAVEL STATUS CONTAINED AT 5 U.S.C. 5542(B)(2)(B), IS IN RECOGNITION OF THE FACT THAT THERE WILL BE INSTANCES IN WHICH OVERTIME COMPENSATION IS NOT PAYABLE FOR TRAVEL TIME NOTWITHSTANDING THAT TRAVEL WHICH MIGHT BE WITHIN ADMINISTRATIVE CONTROL IS REQUIRED OF AN EMPLOYEE OUTSIDE OF HIS REGULAR DUTY HOURS.

IN B-163654, JANUARY 21, 1974, WE EXAMINED THE LEGISLATIVE HISTORY OF 5 U.S.C. 6101(B)(2) AND CONCLUDED THAT SECTION 6101(B)(2) IS NOT ITSELF AUTHORITY FOR PAYMENT OF OVERTIME COMPENSATION, BUT THAT OVERTIME COMPENSATION FOR TRAVEL IS ALLOWABLE ONLY IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C. 5542(B)(2). IN OTHER WORDS THE CONGRESS HAS NOT PROVIDED COMPENSATION AS A REMEDY WHERE THE CIRCUMSTANCES OF AN EMPLOYEE'S TRAVEL DO NOT FALL WITHIN THE PURVIEW OF 5 U.S.C. 5542(B)(2) AND WHERE AN AGENCY FAILS TO ADHERE TO THE POLICY OF TRYING TO SCHEDULE TRAVEL DURING REGULAR DUTY HOURS WHEN PRACTICABLE, ENUNCIATED IN 5 U.S.C. 6101(B)(2). IF THERE HAD BEEN ANY EVIDENCE THAT IT WOULD HAVE BEEN EXTREMELY DISADVANTAGEOUS TO THE GOVERNMENT THAT THE EMPLOYEE BE DIRECTED TO TRAVEL ONLY DURING HIS DUTY HOURS, EVEN THOUGH THE SCHEDULING OF SUCH TRAVEL WAS TECHNICALLY WITHIN THE ADMINISTRATIVE CONTROL OF THE AGENCY, WE WOULD NOT HAVE OBJECTED TO THE PAYMENT OF MR. NICOLAI'S CLAIM. IN THE INSTANT CASE, THERE IS NO INDICATION THAT THERE WAS AN URGENT NECESSITY FOR WEEKEND TRAVEL AND THUS THE TRAVEL WAS NOT PERFORMED UNDER CONDITIONS WHICH WOULD PERMIT PAYMENT OF OVERTIME COMPENSATION UNDER THE PROVISIONS OF 5 U.S.C. 5542(B)(2).

IN VIEW OF THE ABOVE THE DISALLOWANCE OF MR. NICOLAI'S CLAIM IS SUSTAINED.