B-182207, JAN 16, 1975

B-182207: Jan 16, 1975

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WHERE RESPONSIBILITY FOR DETERMINING WHETHER HOURS OF DUTY OF POSITION OR POSITIONS ARE UNCONTROLLABLE FOR PREMIUM PAY PURPOSES IS IN HEAD OF AGENCY CONCERNED SUBJECT TO APPROVAL BY CIVIL SERVICE COMMISSION THERE EXISTS NO AUTHORITY UNDER 5 U.S.C. SEC. 5545(C)(1) BY WHICH GAO CAN ALLOW CLAIM OF FORMER EMPLOYEE OF DEPARTMENT OF JUSTICE FOR ANNUAL PERCENTAGE COMPENSATION FOR STANDBY DUTY PERFORMED AT HOME AS MEDICAL TECHNICAL ASSISTANT DUTY OFFICER SINCE DURING TIME DUTY WAS PERFORMED ATTORNEY GENERAL HAD NOT EXERCISED DISCRETION TO MAKE THE REQUIRED DETERMINATIONS. (2) FORMER MEDICAL TECHNICAL ASSISTANT OF DEPARTMENT OF JUSTICE. WHO WHILE SERVING AS DUTY OFFICER WAS REQUIRED TO BE AVAILABLE BY TELEPHONE OR BEEPER WITH RANGE OF 10-15 MILES.

B-182207, JAN 16, 1975

(1) WHERE RESPONSIBILITY FOR DETERMINING WHETHER HOURS OF DUTY OF POSITION OR POSITIONS ARE UNCONTROLLABLE FOR PREMIUM PAY PURPOSES IS IN HEAD OF AGENCY CONCERNED SUBJECT TO APPROVAL BY CIVIL SERVICE COMMISSION THERE EXISTS NO AUTHORITY UNDER 5 U.S.C. SEC. 5545(C)(1) BY WHICH GAO CAN ALLOW CLAIM OF FORMER EMPLOYEE OF DEPARTMENT OF JUSTICE FOR ANNUAL PERCENTAGE COMPENSATION FOR STANDBY DUTY PERFORMED AT HOME AS MEDICAL TECHNICAL ASSISTANT DUTY OFFICER SINCE DURING TIME DUTY WAS PERFORMED ATTORNEY GENERAL HAD NOT EXERCISED DISCRETION TO MAKE THE REQUIRED DETERMINATIONS. (2) FORMER MEDICAL TECHNICAL ASSISTANT OF DEPARTMENT OF JUSTICE, WHO WHILE SERVING AS DUTY OFFICER WAS REQUIRED TO BE AVAILABLE BY TELEPHONE OR BEEPER WITH RANGE OF 10-15 MILES, EITHER AT HIS RESIDENCE OR ELSEWHERE WITHIN ONE-HALF HOUR'S DRIVE TO WORK IS NOT ENTITLED TO OVERTIME COMPENSATION FOR STANDBY DUTY SINCE STANDBY DUTY AT EMPLOYEE'S RESIDENCE WHEN NO WORK IS REQUIRED IS NOT "HOURS OF WORK" WITHIN THE MEANING OF 5 U.S.C. SEC. 5542 SO AS TO BE COMPENSABLE.

GLEN W. SELLERS - OVERTIME COMPENSATION FOR STANDBY DUTY:

THIS ACTION IS A RECONSIDERATION OF SETTLEMENT OF APRIL 25, 1974, BY THE TRANSPORTATION AND CLAIMS DIVISION OF OUR OFFICE DISALLOWING THE OVERTIME COMPENSATION CLAIM OF MR. GLEN W. SELLERS, A FORMER MEDICAL TECHNICAL ASSISTANT (MTA) EMPLOYED BY THE DEPARTMENT OF JUSTICE, BUREAU OF PRISONS, FEDERAL REFORMATORY, PETERSBURG, VIRGINIA.

MR. SELLERS, WHO WAS A MTA FROM JANUARY 5, 1970, UNTIL HE RESIGNED EFFECTIVE FEBRUARY 1, 1974, WAS PUT ON THE MTA DUTY ROSTER FOLLOWING A 1- YEAR PROBATIONARY PERIOD. ONCE ON THE DUTY ROSTER, HE WAS SUBJECT TO BEING CALLED IN CASE OF AN EMERGENCY OR NEED FOR MEDICAL DECISIONS OR TREATMENT AFTER NORMAL DUTY HOURS. WHEN ON THE MTA DUTY ROSTER, WHICH EXTENDED FOR A PERIOD OF 7 DAYS, MR. SELLERS WAS NOT REQUIRED TO STAY WITHIN THE CONFINES OF HIS HOME. HE WAS ASSIGNED A "BEEPER" WHICH WAS TO BE USED AS A PAGING SYSTEM, IF AN EMERGENCY AROSE, WHICH ALLOWED HIM TO LEAVE HOME, BUT STAY WITHIN A REASONABLE DISTANCE OF APPROXIMATELY 10-15 MILES. IT IS MR. SELLERS' OPINION THAT SINCE VETERANS ADMINISTRATION NURSES RECEIVE 10 PERCENT STANDBY PAY AND A MINIMUM OF 2 HOURS OVERTIME PAY FOR CALL BACKS, HE IS ALSO ENTITLED TO $1,285.50, REPRESENTING 10 PERCENT OF HIS SALARY FOR THE TIME HE WAS REQUIRED TO BE IN STANDBY STATUS AT HIS HOME.

MR. SELLERS' CLAIM WAS DISALLOWED ON THE BASIS THAT HIS HOME HAD NOT BEEN DESIGNATED AS HIS OFFICIAL DUTY STATION BY THE DEPARTMENT CONCERNED. SINCE MR. SELLERS' HOME HAD NEVER BEEN DESIGNATED AS HIS OFFICIAL DUTY STATION AND SINCE OVERTIME COMPENSATION HAD NOT BEEN AUTHORIZED OR APPROVED BY THE PROPER OFFICIAL FOR HIS STANDBY DUTY, THERE WAS NO BASIS FOR PAYMENT OF ADDITIONAL COMPENSATION.

IN REQUESTING REVIEW OF THE DISALLOWANCE, MR. SELLERS CONTENDS THAT STANDBY DUTY SHOULD BE CONSIDERED HOURS OF WORK IN VIEW OF THE FACT THAT HE WAS UNABLE TO ATTEND NIGHT SCHOOL DURING THE PERIOD HE WAS ON THE DUTY ROSTER AND THAT THIS RESULTED IN A FORFEIT OF SOME OF HIS VETERANS BENEFITS SINCE HE HAD ONLY A CERTAIN AMOUNT OF TIME TO USE THEM. FURTHER, HE STATES THAT HE COULD NOT PUT ON HIS OLD CLOTHES AS HE WAS SUBJECT TO BE CALLED AT ANY TIME AND THAT THESE CALLS AT ALL HOURS OF THE AFTERNOON AND NIGHT INCONVENIENCED HIM AND HIS FAMILY.

THERE WERE TWO PROVISIONS OF LAW IN EFFECT DURING THE PERIOD OF MR. SELLERS' CLAIM UNDER WHICH OVERTIME COMPENSATION FOR STANDBY DUTY COULD HAVE BEEN AUTHORIZED IF THE CONDITIONS OF THE LAW AND REGULATIONS WERE MET. THE FIRST PROVISION IS FOUND IN 5 U.S.C. 5545 AND PROVIDES IN PART AS FOLLOWS:

"(C) THE HEAD OF AN AGENCY, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, MAY PROVIDE THAT --

"(1) AN EMPLOYEE IN A POSITION REQUIRING HIM REGULARLY TO REMAIN AT, OR WITHIN THE CONFINES OF, HIS STATION DURING LONGER THAN ORDINARY PERIODS OF DUTY, A SUBSTANTIAL PART OF WHICH CONSISTS OF REMAINING IN A STANDBY STATUS RATHER THAN PERFORMING WORK, SHALL RECEIVE PREMIUM PAY FOR THIS DUTY ON AN ANNUAL BASIS INSTEAD OF PREMIUM PAY PROVIDED BY OTHER PROVISIONS OF THIS SUBCHAPTER, EXCEPT FOR IRREGULAR, UNSCHEDULED OVERTIME DUTY IN EXCESS OF HIS REGULARLY SCHEDULED WEEKLY TOUR. PREMIUM PAY UNDER THIS PARAGRAPH IS DETERMINED AS AN APPROPRIATE PERCENTAGE, NOT IN EXCESS OF 25 PERCENT, OF SUCH PART OF THE RATE OF BASIC PAY FOR THE POSITION AS DOES NOT EXCEED THE MIMIMUM RATE OF BASIC PAY FOR GS-10 (OR, FOR A POSITION DESCRIBED IN SECTION 5542(A)(3) OF THIS TITLE, OF THE BASIC PAY OF THE POSITION), BY TAKING INTO CONSIDERATION THE NUMBER OF HOURS OF ACTUAL WORK REQUIRED IN THE POSITION, THE NUMBER OF HOURS REQUIRED IN A STANDBY STATUS AT OR WITHIN THE CONFINES OF THE STATION, THE EXTENT TO WHICH THE DUTIES OF THE POSITION ARE MADE MORE ONEROUS BY NIGHT, SUNDAY, OR HOLIDAY WORK, OR BY BEING EXTENDED OVER PERIODS OF MORE THAN 40 HOURS A WEEK, AND OTHER RELEVANT FACTORS ***."

WHILE THE ABOVE PROVISION DOES NOT MENTION STANDBY DUTY AT AN EMPLOYEE'S HOME, THE CIVIL SERVICE COMMISSION HAS ISSUED REGULATIONS TO THE EFFECT THAT UNDER CERTAIN CIRCUMSTANCES AN EMPLOYEE'S HOME MAY BE DESIGNATED AS HIS OFFICIAL STATION BY THE DEPARTMENT CONCERNED.

THE RECORD SHOWS THAT MR. SELLERS' HOME WAS NEVER DESIGNATED AS HIS DUTY STATION. MOREOVER, THE ATTORNEY GENERAL NEVER AUTHORIZED NOR DID THE CIVIL SERVICE COMMISSION APPROVE THE PAYMENT OF ANNUAL ADDITIONAL COMPENSATION AS REQUIRED BY SUCH PROVISION OF LAW. THEREFORE, MR. SELLERS IS NOT ENTITLED TO ANY ADDITIONAL COMPENSATION UNDER THAT PROVISION.

THE SECOND PROVISION OF LAW FOR CONSIDERATION IS 5 U.S.C. 5542 WHICH PROVIDES, IN PERTINENT PART AS FOLLOWS:

"(A) HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR (WITH THE EXCEPTION OF AN EMPLOYEE ENGAGED IN PROFESSIONAL OR TECHNICAL ENGINEERING OR SCIENTIFIC ACTIVITIES FOR WHOM THE FIRST 40 HOURS OF DUTY IN AN ADMINISTRATIVE WORKWEEK IS THE BASIC WORKWEEK AND AN EMPLOYEE WHOSE BASIC PAY EXCEEDS THE MINIMUM RATE FOR GS-10 FOR WHOM THE FIRST 40 HOURS OF DUTY IN AN ADMINISTRATIVE WORKWEEK IS THE BASIC WORKWEEK) IN EXCESS OF 8 HOURS IN A DAY, PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK AND SHALL BE PAID FOR, EXCEPT AS OTHERWISE PROVIDED BY THIS SUBCHAPTER, AT THE FOLLOWING RATES ***."

IN ORDER TO QUALIFY FOR OVERTIME COMPENSATION UNDER THIS SECOND PROVISION IT IS NECESSARY THAT MR. SELLERS ESTABLISH THAT THE STANDBY TIME AT HOME CONSTITUTED "HOURS OF WORK" WITHIN THE MEANING OF THOSE WORDS AS USED IN THE LAW.

IN ARMOUR AND CO. V. WANTOCK, 323 U.S. 126, 133 (1944), THE SUPREME COURT, IN ORDER TO DETERMINE WHAT CONSTITUTED "WORK", USED THE CRITERION OF WHETHER THE TIME IN QUESTION WAS SPENT "*** PREDOMINANTLY FOR THE EMPLOYER'S BENEFIT OR FOR THE EMPLOYEE'S ***" AND STATED THAT THIS WAS "*** DEPENDENT UPON ALL THE CIRCUMSTANCES OF THE CASE."

ORDINARILY AN EMPLOYEE WHO IS IN A STANDBY STATUS AT HOME TO ANSWER THE TELEPHONE IS FREE TO READ, EAT, SLEEP, ENTERTAIN FRIENDS AND OTHERWISE FOLLOW HIS NORMAL PURSUITS WHILE STANDING THE TELEPHONE WATCH.

IN THE CASE OF RAPP AND HAWKINS V. UNITED STATES, 167 CT. CL. 852 (1964), INVOLVING CLAIMS FOR OVERTIME COMPENSATION UNDER CIRCUMSTANCES SUBSTANTIALLY SIMILAR TO THOSE HERE INVOLVED, IT WAS HELD THAT ALTHOUGH THE CLAIMANTS WERE REQUIRED TO BE WITHIN HEARING DISTANCE AT ALL TIMES TO ANSWER THE TELEPHONE AND TO TAKE APPROPRIATE ACTION IN THE SITUATIONS PRESENTED TO THEM BY TELEPHONE, THEY WERE NOT TO BE REGARDED AS PERFORMING WORK WITHIN THE MEANING OF THE OVERTIME STATUTE AND THUS WERE NOT ENTITLED TO COMPENSATION FOR SUCH SERVICES. THE COURT IN THAT CASE NOTED THAT "THEORETICALLY THE DUTY OFFICER COULD BE DISTURBED AT ANY HOUR DURING THE NIGHT." TO THE SAME EFFECT IS MOSS V. UNITED STATES, 173 CT. CL. 1169 (1965).

IN MR. SELLERS' CASE IT WOULD APPEAR THAT HE WAS ALLOWED EVEN GREATER FREEDOM TO DO AS HE PLEASED THAN THE EMPLOYEE IN THE RAPP DECISION, SINCE BY USE OF THE BEEPER, HE WAS FREED OF THE NECESSITY TO ALWAYS BE AVAILABLE BY TELEPHONE AND HE COULD THEREBY EXERCISE A GREATER DEGREE OF PERSONAL MOBILITY. ALTHOUGH HE MAY NOT HAVE BEEN ABLE TO ATTEND NIGHT SCHOOL OR WEAR OLD CLOTHES, AND HE AND HIS FAMILY MAY HAVE BEEN INCONVENIENCED BY PHONE CALLS, THESE FACTS ALONE ARE INSUFFICIENT TO MAKE THE STANDBY TIME MR. SELLERS SPENT AS DUTY OFFICER COMPENSABLE "HOURS OF WORK" UNDER 5 U.S.C. SEC. 5542. B-176924, OCTOBER 17, 1974 B 180036, MAY 20, 1974; AND B-173899, NOVEMBER 24, 1971. CF., B-170264, DECEMBER 21, 1973.

ACCORDINGLY, THE SETTLEMENT DISALLOWING MR. SELLERS' CLAIM IS HEREBY SUSTAINED.