B-197734.OM, SEP 16, 1980

B-197734.OM: Sep 16, 1980

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FOWLER IS A GRADE WG-10 EMPLOYEE AT THE DAVIS- MONTHAN AIR FORCE BASE. HE WAS DETAINED AT THE BASE AT THE END OF HIS WORKDAY INCIDENT TO A SEARCH BY MILITARY POLICE OF ALL PRIVATELY OWNED AUTOMOBILES LEAVING THE BASE. THE AGENCY STATES THAT WHEN IT IS DEEMED NECESSARY TO PROTECT AIR FORCE PROPERTY AND RETARD THEFT OR PILFERAGE. THE BASE COMMANDER MAY DIRECT MILITARY LAW ENFORCEMENT PERSONNEL TO CONDUCT A "NO NOTICE" INSPECTION OF ALL VEHICLES LEAVING A BASE AND THAT SUCH AN INSPECTION WAS SCHEDULED BY THE BASE COMMANDER ON OCTOBER 12. FOWLER CLAIMED OVERTIME COMPENSATION FOR THE 25 MINUTES HE ALLEGES THAT HE WAS DELAYED IN LEAVING THE BASE. ON THE BASIS THAT NO WORK WAS PERFORMED. FOWLER'S CLAIM WAS DISALLOWED ON THE BASIS THAT THE DELAY WAS NOT COMPENSABLE HOURS OF WORK UNDER TITLE 5.

B-197734.OM, SEP 16, 1980

SUBJECT: ARTHUR P. FOWLER, JR. - CLAIM FOR OVERTIME - B-197734-O.M.

ASSOCIATE DIRECTOR, FMGSD - CLAIMS GROUP (ROOM 5858):

THE RECORD SHOWS THAT MR. FOWLER IS A GRADE WG-10 EMPLOYEE AT THE DAVIS- MONTHAN AIR FORCE BASE, ARIZONA. ON OCTOBER 12, 1978, HE WAS DETAINED AT THE BASE AT THE END OF HIS WORKDAY INCIDENT TO A SEARCH BY MILITARY POLICE OF ALL PRIVATELY OWNED AUTOMOBILES LEAVING THE BASE.

THE AGENCY STATES THAT WHEN IT IS DEEMED NECESSARY TO PROTECT AIR FORCE PROPERTY AND RETARD THEFT OR PILFERAGE, THE BASE COMMANDER MAY DIRECT MILITARY LAW ENFORCEMENT PERSONNEL TO CONDUCT A "NO NOTICE" INSPECTION OF ALL VEHICLES LEAVING A BASE AND THAT SUCH AN INSPECTION WAS SCHEDULED BY THE BASE COMMANDER ON OCTOBER 12, 1978.

ON DECEMBER 7, 1978, MR. FOWLER CLAIMED OVERTIME COMPENSATION FOR THE 25 MINUTES HE ALLEGES THAT HE WAS DELAYED IN LEAVING THE BASE. HIS CLAIM STATED THAT THIS TIME REPRESENTED THE DELAY BEYOND THE 10 MINUTES NORMALLY REQUIRED TO LEAVE THE BASE.

THE AIR FORCE DENIED THE CLAIM, IN PART, ON THE BASIS THAT NO WORK WAS PERFORMED. IN THE CERTIFICATE OF SETTLEMENT DATED APRIL 16, 1979, MR. FOWLER'S CLAIM WAS DISALLOWED ON THE BASIS THAT THE DELAY WAS NOT COMPENSABLE HOURS OF WORK UNDER TITLE 5, UNITED STATES CODE.

OVERTIME FOR FEDERAL EMPLOYEES IS AUTHORIZED BY TITLE 5, U.S.C. AND ALSO BY THE FLSA FOR NONEXEMPT EMPLOYEES. AN EMPLOYEE'S ENTITLEMENT TO OVERTIME COMPENSATION MAY BE BASED ON TITLE 5, THE FLSA OR BOTH.

THE STATUTORY AUTHORITY FOR OVERTIME COMPENSATION FOR WAGE GRADE EMPLOYEES IS 5 U.S.C. SEC. 5544 (1976) WHICH PROVIDES, IN PERTINENT PART, THAT SUCH EMPLOYEES ARE ENTITLED TO OVERTIME PAY FOR OVERTIME WORK IN EXCESS OF 8 HOURS A DAY OR 40 HOURS A WEEK. THE MERE RESTRICTION OF AN EMPLOYEE TO HIS WORKSITE OUTSIDE OF DUTY HOURS, WHERE THE EMPLOYEE IS NEITHER PERFORMING WORK NOR HOLDING HIMSELF IN READINESS TO PERFORM WORK, DOES NOT ENTITLE SUCH EMPLOYEE TO OVERTIME COMPENSATION UNDER 5 U.S.C. SEC. 5544 (1976). SEE ALBERT L. SPIRES AND JAMES P. HANLON, JR., B-187181, OCTOBER 17, 1977. ACCORDINGLY, AS MR. FOWLER WAS NEITHER PERFORMING WORK NOR STANDING BY TO PERFORM WORK DURING THE PERIOD HE WAS DETAINED BY THE SECURITY SEARCH, HE IS NOT ENTITLED TO OVERTIME COMPENSATION UNDER 5 U.S.C. SEC. 5544.

THE FAIR LABOR STANDARDS AMENDMENTS OF 1974, PUBLIC LAW 93-259, APPROVED APRIL 8, 1974, EXTENDED FLSA COVERAGE TO CERTAIN FEDERAL EMPLOYEES. UNDER 29 U.S.C. 204(F) THE OFFICE OF PERSONNEL MANAGEMENT IS AUTHORIZED TO ADMINISTER THE PROVISIONS OF THE FLSA. UNDER THE FLSA A NONEXEMPT EMPLOYEE BECOMES ENTITLED TO OVERTIME COMPENSATION FOR HOURS WORKED IN EXCESS OF 40 HOURS A WEEK WHICH MANAGEMENT "SUFFERS OR PERMITS" TO BE PERFORMED. SEE PARA. 3C OF FEDERAL PERSONNEL MANUAL (FPM) LETTER NO. 551- 1, MAY 15, 1974.

THE CERTIFICATE OF SETTLEMENT DATED APRIL 16, 1979, DOES NOT ADDRESS THE ISSUE OF MR. FOWLER'S ENTITLEMENT TO THE PAYMENT OF OVERTIME UNDER THE FLSA.

ON SEPTEMBER 24, 1979, THE OFFICE OF PERSONNEL MANAGEMENT, SAN FRANCISCO REGION, DETERMINED THAT THE TIME THE EMPLOYEES AT THE DAVIS MONTHAN AIR FORCE BASE WERE DETAINED BY THE SECURITY SEARCH WAS HOURS WORKED UNDER THE FLSA. THAT DETERMINATION WAS CLARIFIED BY THEIR LETTER OF OCTOBER 30, 1979, WHICH INDICATES THAT SINCE THE INSPECTION WAS NOT REGULARLY SCHEDULED, THE EMPLOYEES' CLAIMS WOULD BE SUBJECT TO THE "DE MINIMUS" RULE.

UNDER THE FLSA THERE IS NO PRECISE RULE AS TO WHAT CONSTITUTES WORKING TIME AS SUCH DETERMINATION IS A QUESTION OF FACT. SEE WIRTZ V. MCGHEE, 244 F. SUPP. 412 AT 417 (1965). IN VIEW OF THE FACT THAT THE DELAY IN MR. FOWLER'S DEPARTURE WAS NOT DUE TO CIRCUMSTANCES BEYOND THE CONTROL OF THE AGENCY AND AS HIS TIME WAS CONTROLLED BY THE AIR FORCE SO THAT HE WAS NOT FREE TO USE THE TIME EFFECTIVELY FOR HIS OWN PURPOSES, WE CANNOT CONCLUDE THAT THE OPM DETERMINATION THAT SUCH TIME WAS "HOURS WORKED" UNDER THE FLSA WAS IMPROPER. ITS DETERMINATION IN THIS CASE CAN BE DISTINGUISHED FROM OPM'S FINDING THAT THE CLAIMANTS IN THE SPIRES AND HANLON CASE WERE NOT ENTITLED TO FLSA OVERTIME.

ACCORDINGLY, PROVIDED THAT MR. FOWLER HAS BEEN PROPERLY DETERMINED TO BE A NONEXEMPT EMPLOYEE UNDER THE FLSA, HE WOULD BE ENTITLED TO THE PAYMENT OF OVERIME COMPENSATION PURSUANT TO THE FLSA IN ACCORDANCE WITH THE OPM DETERMINATION.

THE DEPARTMENT OF THE AIR FORCE, AS WELL AS MR. FOWLER, SHOULD BE ADVISED OF OUR DETERMINATION HEREIN.

DIGEST

EMPLOYEE AT DAVIS-MONTHAN AIR BASE, ARIZONA, CLAIMS OVERIME COMPENSATION FOR PERIOD HE WAS DETAILED AT BASE BEYOND TIME NORMALLY REQUIRED TO LEAVE AS RESULT OF A SECURITY SEARCH. WHERE THE EMPLOYEE NEITHER PERFORMED WORK NOR WAS STANDING BY TO PERFORM WORK WHILE HE WAS DETAINED, HE IS NOT ENTITLED TO OVERTIME COMPENSATION UNDER 5 U.S.C. SEC. 5544 (1976). HOWEVER, AS DELAY AT BASE WAS NOT DUE TO CIRCUMSTANCES BEYOND CONTROL OF AGENCY AND AS HIS TIME WAS CONTROLLED BY AGENCY SO THAT HE COULD NOT USE THE TIME EFFECTIVELY FOR HIS OWN PURPOSES, IT CANNOT BE CONCLUDED THAT OPM DETERMINATION THAT EMPLOYEE'S DELAY BY SEARCH WAS "HOURS WORKED" UNDER FLSA WAS IMPROPER.