B-184981, AUG 20, 1976

B-184981: Aug 20, 1976

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EMPLOYEE WHO NORMALLY QUALIFIED FOR PREMIUM PAY FOR ADMINISTRATIVELY UNCONTROLLABLE OVERTIME UNDER 5 U.S.C. 5545(C)(2) (1970) IS NOT ENTITLED TO SUCH PREMIUM PAY FOR PERIOD EMPLOYEE IS SUSPENDED WITHOUT PAY SINCE REGULATIONS REQUIRE THAT EMPLOYEE BE IN BASIC PAY STATUS IN ORDER TO RECEIVE PREMIUM PAY FOR AUO. GUZMAN - PREMIUM PAY WHILE IN A NONPAY STATUS: THIS ACTION IS IN RESPONSE TO A REQUEST BY MR. BY OUR TRANSPORTATION AND CLAIMS DIVISION (NOW CLAIMS DIVISION) WHICH DENIED HIS CLAIM FOR PREMIUM PAY FOR A 30-DAY PERIOD DURING WHICH HE WAS SUSPENDED WITHOUT PAY. WAS SUSPENDED WITHOUT PAY FOR 30 DAYS IN THE FISCAL YEAR 1972. GUZMAN'S CLAIM FOR PREMIUM PAY FOR ADMINISTRATIVELY UNCONTROLLED OVERTIME (AUO) FOR THE PERIOD OF HIS SUSPENSION BECAUSE HE WAS NOT IN A BASIC PAY STATUS WHILE SUSPENDED.

B-184981, AUG 20, 1976

EMPLOYEE WHO NORMALLY QUALIFIED FOR PREMIUM PAY FOR ADMINISTRATIVELY UNCONTROLLABLE OVERTIME UNDER 5 U.S.C. 5545(C)(2) (1970) IS NOT ENTITLED TO SUCH PREMIUM PAY FOR PERIOD EMPLOYEE IS SUSPENDED WITHOUT PAY SINCE REGULATIONS REQUIRE THAT EMPLOYEE BE IN BASIC PAY STATUS IN ORDER TO RECEIVE PREMIUM PAY FOR AUO.

FRANCISCO H. GUZMAN - PREMIUM PAY WHILE IN A NONPAY STATUS:

THIS ACTION IS IN RESPONSE TO A REQUEST BY MR. FRANCISCO H. GUZMAN FOR RECONSIDERATION OF A SETTLEMENT ISSUED ON AUGUST 19, 1975, BY OUR TRANSPORTATION AND CLAIMS DIVISION (NOW CLAIMS DIVISION) WHICH DENIED HIS CLAIM FOR PREMIUM PAY FOR A 30-DAY PERIOD DURING WHICH HE WAS SUSPENDED WITHOUT PAY.

THE RECORD SHOWS THAT MR. GUZMAN, THEN EMPLOYED AS A SPECIAL AGENT BY THE BUREAU OF NARCOTICS AND DANGEROUS DRUGS, NOW THE DRUG ENFORCEMENT ADMINISTRATION, WAS SUSPENDED WITHOUT PAY FOR 30 DAYS IN THE FISCAL YEAR 1972. THE CLAIMS DIVISION DISALLOWED MR. GUZMAN'S CLAIM FOR PREMIUM PAY FOR ADMINISTRATIVELY UNCONTROLLED OVERTIME (AUO) FOR THE PERIOD OF HIS SUSPENSION BECAUSE HE WAS NOT IN A BASIC PAY STATUS WHILE SUSPENDED.

IN SUPPORT OF HIS REQUEST FOR RECONSIDERATION, MR. GUZMAN ASSERTS THAT PREMIUM PAY IS DIFFERENT FROM OTHER OVERTIME PAY AND CONTENDS THAT IF AN EMPLOYEE MEETS THE ANNUAL MINIMUM REQUIREMENT OF 469 HOURS OF AUO THAT HE MUST BE PAID 25 PERCENT OF A GRADE GS-10, STEP 1 SALARY FOR THE ENTIRE YEAR IN ADDITION TO HIS BASIC COMPENSATION. HE STATES, IN EFFECT, THAT THE ONLY REQUIREMENT FOR PREMIUM PAY FOR AUO IS THE COMPLETION OF THE SPECIFIED MINIMUM NUMBER OF HOURS OF AUO DURING THE YEAR. IN SUPPORT OF THIS CONTENTION, MR. GUZMAN REFERS TO A LETTER DATED AUGUST 25, 1975, FROM THE ASSISTANT ADMINISTRATOR FOR ADMINISTRATION AND MANAGEMENT, DRUG ENFORCEMENT ADMINISTRATION (DEA) WHICH STATES THAT THE QUARTERLY CERTIFICATION OF AUO FOR THE PURPOSE OF ESTABLISHING AN EMPLOYEE'S ATTAINMENT OF THE QUALIFYING MINIMUM REQUIREMENT OF 469 HOURS HAS NO OTHER BEARING ON THE EMPLOYEE'S ENTITLEMENT TO PREMIUM PAY FOR AUO.

PREMIUM PAY AUTHORIZED UNDER 5 U.S.C. 5545(C)(2) (1970) FOR AUO IS NOT AN ENTITLEMENT WHICH ACCRUES SOLELY BY VIRTUE OF PERFORMING A MINIMUM NUMBER OF HOURS OF AUO IN 1 YEAR. THE EMPLOYEE MUST OCCUPY A POSITION REQUIRING THE PERFORMANCE OF AUO AND MUST CONTINUE TO PERFORM DUTIES IN THAT POSITION WHICH INVOLVE A "REASONABLE EXPECTATION" OF A CONTINUED REQUIREMENT FOR AUO. SEE 43 COMP.GEN. 376 (1963). ALSO, THE EMPLOYEE HIMSELF MUST BE RESPONSIBLE FOR RECOGNIZING THE NECESSITY FOR OVERTIME. THE PURPOSE OF THE DEA QUARTERLY CERTIFICATION OF AUO IS MERELY TO ESTABLISH THE EXPECTANCY OF CONTINUED AUO AT A LEVEL SUFFICIENT TO MEET THE QUALIFYING MINIMUM NUMBER OF HOURS FOR A 12 MONTH PERIOD; IT DOES NOT ESTABLISH SATISFACTION OF THE OTHER REQUIREMENTS FOR ENTITLEMENT TO PREMIUM PAY.

THE CIVIL SERVICE COMMISSION REGULATIONS PERTAINING TO PAYMENT OF PREMIUM PAY FOR AUO ARE CONTAINED IN TITLE 5 OF THE CODE OF FEDERAL REGULATIONS (CFR). THESE REGULATIONS PROVIDE IN PART THAT PREMIUM PAY FOR AUO BEGINS WHEN THE EMPLOYEE ENTERS ON DUTY IN THE POSITION CONCERNED FOR PURPOSES OF BASIC PAY AND TERMINATES ON THE DATE THE EMPLOYEE CEASES TO BE PAID BASIC PAY IN THAT POSITION. 5 C.F.R. 550.162 (1971). SEE ALSO FEDERAL PERSONNEL MANUAL, SUPPLEMENT 990-2, BOOK 550, SUBCHAPTER S1-8B(1)(A). INTERPRET THIS PROVISION AS REQUIRING AN EMPLOYEE TO BE IN A BASIC PAY STATUS IN ORDER TO BE ENTITLED TO PREMIUM PAY FOR AUO.

IN VIEW OF THE FOREGOING AND SINCE MR. GUZMAN WAS NOT IN A BASIC PAY STATUS DURING THE PERIOD OF HIS SUSPENSION, WE MUST SUSTAIN THE DISALLOWANCE OF HIS CLAIM.