B-196810.OM, JUN 19, 1980

B-196810.OM: Jun 19, 1980

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FGMSD - CLAIMS GROUP (RM. 5858): RETURNED IS FILE Z-2794375. SINCE THE CLAIM WAS NOT RECEIVED IN OUR OFFICE UNTIL FEBRUARY 23. IS BARRED FROM CONSIDERATION PURSUANT TO 31 U.S.C. MECHAM WAS A PART-TIME CLERK TYPIST ASSIGNED TO FISH SPRINGS NATIONAL WILDLIFE REFUGE NEAR DUGWAY. HER SCHEDULED TOUR OF DUTY WAS 36 HOURS PER WEEK. WHILE THERE IS NO EVIDENCE THAT MRS. MECHAM WAS REQUIRED TO OCCUPY GOVERNMENT HOUSING AS A CONDITION OF EMPLOYMENT. MECHAM WAS REQUIRED TO PERFORM STANDBY DUTY ON REGULARLY SCHEDULED WEEKENDS. THIS WEEKEND STANDBY DUTY WAS ALTERNATED AMONG MRS. THE PURPOSE OF THE DUTY WAS TO INSURE THE SAFETY OF PERSONAL AND GOVERNMENT PROPERTY AND MACHINERY. DUTY ROSTERS AND STATEMENTS FROM APPROVING OFFICIALS WHICH ARE PART OF THE FILE.

B-196810.OM, JUN 19, 1980

SUBJECT: LUDAWN MECHAM - CLAIM FOR OVERTIME COMPENSATION - B-196810-O.M.

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (RM. 5858):

RETURNED IS FILE Z-2794375, TOGETHER WITH RELATED PAPERS WHICH COMPRISE THE CLAIM OF MRS. LUDAWN MECHAM. MRS. MECHAM CLAIMS OVERTIME COMPENSATION FOR STANDBY DUTY AS A FORMER EMPLOYEE OF THE U. S. DEPARTMENT OF THE INTERIOR, FISH AND WILDLIFE SERVICE. THE CLAIM INVOLVES THE PERIOD FROM JANUARY 1971 THROUGH JANUARY 1973, AND, SINCE THE CLAIM WAS NOT RECEIVED IN OUR OFFICE UNTIL FEBRUARY 23, 1978, THE PORTION FOR THE PERIOD PRIOR TO FEBRUARY 23, 1972, IS BARRED FROM CONSIDERATION PURSUANT TO 31 U.S.C. SEC. 71A (1976).

DURING THE PERIOD OF THE CLAIM MRS. MECHAM WAS A PART-TIME CLERK TYPIST ASSIGNED TO FISH SPRINGS NATIONAL WILDLIFE REFUGE NEAR DUGWAY, UTAH. HER SCHEDULED TOUR OF DUTY WAS 36 HOURS PER WEEK, MONDAY THROUGH FRIDAY. WHILE THERE IS NO EVIDENCE THAT MRS. MECHAM WAS REQUIRED TO OCCUPY GOVERNMENT HOUSING AS A CONDITION OF EMPLOYMENT, IT DOES APPEAR THAT SHE LIVED AT THE REFUGE, AS DID THE REFUGE MANAGER AND ASSISTANT MANAGER. DURING THE PERIOD CLAIMED, MRS. MECHAM WAS REQUIRED TO PERFORM STANDBY DUTY ON REGULARLY SCHEDULED WEEKENDS. THIS WEEKEND STANDBY DUTY WAS ALTERNATED AMONG MRS. MECHAM, THE MANAGER AND ASSISTANT MANAGER. BOTH THE MANAGER AND ASSISTANT MANAGER HAD THE REQUISITE AUTHORITY TO ORDER AND APPROVE OVERTIME DUTIES. THE PURPOSE OF THE DUTY WAS TO INSURE THE SAFETY OF PERSONAL AND GOVERNMENT PROPERTY AND MACHINERY, AND IN ADDITION TO ASSIST VISITORS TO THE AREA. DUTY ROSTERS AND STATEMENTS FROM APPROVING OFFICIALS WHICH ARE PART OF THE FILE, CLEARLY EVIDENCE THAT MRS. MECHAM WAS ORDERED TO, AND DID IN FACT PERFORM STANDBY DUTY DURING THE PERIOD IN QUESTION.

THE ADMINISTRATIVE AGENCY DENIED MRS. MECHAM'S CLAIM STATING THAT EMPLOYEES AT FISH SPRINGS WERE NEVER AUTHORIZED TO RECEIVE COMPENSATION FOR STANDBY DUTY. IN ADDITION, THE AGENCY STATED THAT ITS POLICY STATEMENT OF MARCH 30, 1972, ESTABLISHED BASIC CONDITIONS FOR THE ENTITLEMENT TO PREMIUM PAY UNDER 5 U.S.C. SEC. 5545, AND MRS. MECHAM DID NOT MEET THOSE CONDITIONS.

EMPLOYEES WHO ARE REQUIRED TO REMAIN AT THEIR DUTY STATIONS ON STANDBY DUTY MAY RECEIVE PREMIUM PAY UNDER THE AUTHORITY OF, AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5545 OF TITLE 5, UNITED STATES CODE. THE OFFICE OF PERSONNEL MANAGEMENT'S REGULATIONS REGARDING SUCH STANDBY DUTY ARE CONTAINED IN 5 C.F.R. SEC. 550.141, ET SEQ. (1978), AND THESE REGULATIONS PROVIDE IN PART THAT, WHERE THE EMPLOYEE'S LIVING QUARTERS IS DESIGNATED AS THE DUTY STATION, HIS "WHEREABOUTS" MUST BE NARROWLY LIMITED AND HIS ACTIVITIES SUBSTANTIALLY RESTRICTED IN ORDER TO QUALIFY FOR PREMIUM PAY. HOWEVER, THERE IS NO INDICATION THAT IN THE CIRCUMSTANCES OF MRS. MECHAM'S CASE, THE AGENCY APPROVED PREMIUM PAY UNDER THE APPLICABLE AUTHORITY, OR THAT THE AGENCY HAS DESIGNATED MRS. MECHAM'S RESIDENCE AS HER OFFICIAL STATION. THEREFORE, MRS. MECHAM WOULD BE ENTITLED TO COMPENSATION FOR HER STANDBY DUTY ONLY IF IT CAN BE DETERMINED THAT SUCH DUTY CONSTITUTED HOURS OF WORK UNDER 5 U.S.C. SEC. 5542 (1976) WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"(A) FOR FULL-TIME, PART-TIME AND INTERMITTENT TOURS OF DUTY, 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, EXCEPT AS OTHERWISE PROVIDED BY THIS SUBCHAPTER, AT THE FOLLOWING RATES ***."

IN VIEW OF THE FACT THAT THE STATUTE DIRECTLY ADDRESSES PART-TIME TOURS OF DUTY, AND HAVING NOTED THAT THE STANDBY DUTY WAS OFFICIALLY AUTHORIZED AND APPROVED WITHIN THE MEANING OF 5 U.S.C. SEC. 5542(A), IT REMAINS TO BE DETERMINED WHETHER THE STANDBY DUTY IN QUESTION CONSTITUTED "HOURS OF WORK" WITHIN THE MEANING OF THE STATUTE.

IN RAPP AND HAWKINS V. UNITED STATES, 167 CT.CL. 852 (1964), THE COURT INDICATED, CITING ARMOUR & CO. V. WANTOCK, 323 U.S. 126, 133 (1944), THAT WHEN OVERTIME SPENT IN A STANDBY STATUS IS PREDOMINATELY FOR THE BENEFIT OF THE EMPLOYER, AND PARTICULARLY WHEN THAT TIME IS SPENT BY THE EMPLOYEE ON THE EMPLOYER'S PREMISES, IT IS USUALLY COMPENSABLE AS HOURS OF WORK UNDER THE AUTHORIZING STATUTE. THE RAPP CASE INVOLVED AN EMPLOYEE WHO WAS REQUIRED ONCE OR TWICE A MONTH TO REMAIN AT HOME FROM THE END OF WORK IN THE AFTERNOON UNTIL THE FOLLOWING MORNING TO ANSWER THE TELEPHONE FOR ANY EMERGENCY CALLS RECEIVED DURING THAT TIME. HE WAS FREE TO LEAVE HIS RESIDENCE WHENEVER NECESSARY, PROVIDED HE NOTIFIED HIS SUPERVISOR SO THAT CALLS COULD BE DIVERTED IN HIS ABSENCE. THE COURT OF CLAIMS HELD THAT THE EMPLOYEE WAS NOT ENTITLED TO OVERTIME COMPENSATION UNDER THOSE CIRCUMSTANCES INASMUCH AS THE TIME SO SPENT WAS NOT PREDOMINATELY FOR HIS EMPLOYER'S BENEFIT. HOWEVER, THE COURT ALSO INDICATED THAT WHERE EMPLOYEES ARE REQUIRED TO REMAIN ON THEIR JOBS AFTER HOURS AND ARE EXPECTED TO HOLD THEMSELVES IN READINESS, ALTHOUGH THERE MAY BE NO ACTUAL OCCASION TO PERFORM ANY PARTICULAR WORK, THAT TIME IS COMPENSABLE SINCE THEY ARE ACTUALLY ENGAGED TO WAIT AND THIS WAITING TIME IS THEREFORE "HOURS OF WORK" WITHIN THE MEANING OF 5 U.S.C. SEC. 5542.

THIS RATIONALE WAS APPLIED IN OUR DECISION IN HUGH J. HYDE, 55 COMP.GEN. 1314 (1976), IN WHICH CLAIMANT WAS HELD TO BE ENTITLED TO OVERTIME COMPENSATION FOR PERFORMING THE DUTY SECURITY OFFICER FUNCTION DURING WHICH HE WAS CONFINED TO THE 10-ACRE AREA OF THE NAVY INSTALLATION ON WHICH HIS RESIDENCE WAS LOCATED, WITHIN HEARING DISTANCE OF A LOUDSPEAKER. THE DECISION IN THAT CASE TURNED UPON THE SUBSTANTIAL DEGREE TO WHICH THE EMPLOYEE'S ACTIVITIES WERE RESTRICTED AND HIS WHEREABOUTS LIMITED AND THE ADDITIONAL FACT THAT HE WAS REQUIRED TO HOLD HIMSELF IN A PRONOUNCED DEGREE OF READINESS. TO THE SAME EFFECT SEE RALPH E. CONWAY, B-176924, SEPTEMBER 20, 1976.

THE RECORD SUPPORTS THE DETERMINATION THAT MRS. MECHAM WAS ORDERED TO PERFORM STANDBY DUTY ON REGULARLY SCHEDULED OFF DUTY HOURS, AND THAT IN THE PERFORMANCE OF SUCH STANDBY DUTY SHE WAS SUBSTANTIALLY LIMITED IN HER MOVEMENTS, SIGNIFICANTLY RESTRICTED IN HER ACTIVITIES, AND WAS IN A STATE OF READY ALERT TO RESPOND TO CALLS, WATCH OVER PROPERTY AND PROVIDE NECESSARY ASSISTANCE TO TRAVELERS AND VISITORS TO THE REFUGE. IN THESE CIRCUMSTANCES, HER OVERTIME SPENT IN A STANDBY STATUS MAY BE CONSIDERED AS HOURS OF WORK.

ACCORDINGLY, UNDER THE CIRCUMSTANCES OF THIS CASE, WE DO NOT OBJECT TO THE PAYMENT OF OVERTIME COMPENSATION TO MRS. MECHAM - TO THE EXTENT OTHERWISE PROPER - UNDER 5 U.S.C. 5542(A) FOR STANDBY DUTY OFFICIALLY ORDERED AND APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR IN EXCESS OF 8 HOURS IN A DAY.