Matter of: Rand E. Glass - Claim for Compensatory Time - Travel During Nonduty Hours File: B-205694.2 Date: October 28, 1992

B-205694.2: Oct 28, 1992

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Such a course is an event that could be scheduled or controlled administratively and. DECISION This is in response to issues raised by Mr. Thus he was required to travel away from his duty station. ANALYSIS Compensatory time is granted in lieu of and on the same basis as compensation for overtime is paid under 5 U.S.C. Is 5 U.S.C. Sec. 5542(b) (2) (B) which specifically provides that time spent in a travel status is not hours of employment for overtime compensation purposes unless. (ii) is incident to travel that involves the performance of work while traveling. (iii) is carried out under arduous conditions. He was advised that his travel did not come within the exception provided by clause (iv) of section 5542 (b) (2) (B).

Matter of: Rand E. Glass - Claim for Compensatory Time - Travel During Nonduty Hours File: B-205694.2 Date: October 28, 1992

CIVILIAN PERSONNEL Compensation Overtime Eligibility Non-workday travel Justification An employee traveled away from his duty station on Sunday in order to take a training course conducted by the government and returned on Friday evening. Such a course is an event that could be scheduled or controlled administratively and, therefore, the employee may not be allowed compensatory time for travel during his non-duty hours. See 5 U.S.C. Sec. 5542 (b) (2) (B) (iv) (1988) and Federal Personnel Manual Supplement 990-2, Book 550, S1-3b.

DECISION

This is in response to issues raised by Mr. Rand E. Glass, an employee of the Department of Veterans Affairs, which he believes require a reversal of our Claims Group's settlement which denied his claim for compensatory time for the time he spent traveling to and from a training course he attended. [1] For the reasons discussed below we sustain the Claims Group's denial.

BACKGROUND

Mr. Glass, a grade GM-13 employee, attended a training course in Kansas City, Missouri, apparently conducted by or under the control of the government. The course began at 8 a.m. on a Monday and concluded on Friday afternoon, and thus he was required to travel away from his duty station, Milwaukee, Wisconsin, during non-duty hours to attend the course. The agency and our Claims Group denied Mr. Glass's claim for compensatory time for travel time during non-duty hours to attend the course as not being hours of employment for which compensatory time may be granted.

ANALYSIS

Compensatory time is granted in lieu of and on the same basis as compensation for overtime is paid under 5 U.S.C. Sec. 5542. [2] The pertinent provision, cited by the Claims Group, is 5 U.S.C. Sec. 5542(b) (2) (B) which specifically provides that time spent in a travel status is not hours of employment for overtime compensation purposes 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, including travel by an employee to such an event and the return of such employee from such event to his or her official-duty station."

In the disallowance of Mr. Glass's claim, he was advised that his travel did not come within the exception provided by clause (iv) of section 5542 (b) (2) (B), as interpreted by the Office of Personnel Management in the Federal Personnel Manual, Supplement 990-2, and our decisions. That is, since the agency conducting the training can schedule the hours of training, the course is an event which can be scheduled or controlled administratively, and it does not fall within the exception provided by clause (iv).

Mr. Glass questions the reason for the disallowance of his claim on three bases. First, he indicates that when travel is included in the position description as part of his job, it should be considered an assigned duty or work, as described in FPM Supp. 990-2, for which compensation is due.

We have held that in order for travel time to be considered hours of work for which overtime or compensatory time may be granted on the basis Mr. Glass suggests, the travel must be an inherent part of and inseparable from the work itself such as where the employees report to headquarters, receive assignments, pick up government vehicles to transport special tools and supplies, and then drive the vehicles to one or more facilities to perform work. See 61 Comp.Gen. 27 (1981). The mere fact that an employee's job requires travel, as stated in the job description, would not make the employee's travel outside regularly scheduled duty hours compensable as overtime work unless it also involves one of the qualifying factors set out in 5 U.S.C. Sec. 5542(b) (2) (B) supra.

Mr. Glass also argues that because the employee in charge of authorizing his travel to the training had no control over the schedule of the training event, the training should be considered an event that could not be administratively scheduled or controlled, and thus the travel to and from it should qualify for compensatory time on this basis.

Our decisions and the Court of Claims have held that in order for an event to be considered as not able to be administratively scheduled or controlled, the government must have no control over scheduling the event. 71 Comp.Gen. 228 (1992); Barth v. United States, 568 F.2d 1329 (Ct. Cl. 1978). That is, in accordance with the language of clause (iv), supra, the focus is on the event, and if the government controls it, the condition allowing overtime or compensatory time is not met, regardless of the fact that travel to it cannot be scheduled during regularly scheduled work hours. See also FPM Supplement 990-2, Book 550, S1-3b(2) (c) (iv), which specifically states that training courses given by the government that begin at the beginning of most employees' regularly scheduled workweeks requiring travel during the employees' non-official work time will not result in the payment of overtime or compensatory time for the travel to the training. [3]

Finally, Mr. Glass indicates, in effect, that when agency controls are not adequate to keep employee travel within normal work hours, the agency should not benefit at the expense of the employee by requiring travel during non-work hours but refusing compensation although the agency could have controlled the schedule.

Pursuant to 5 U.S.C. Sec. 6101(b) (2), agencies are to schedule travel time to "the maximum extent practicable," within the regularly scheduled workweek of the employee. We and the Court of Claims have held, however, that Congress has not authorized overtime compensation as a remedy for an agency's failure to adhere to this policy. See Robert H. Ray, Sr., B-237693, Mar. 30, 1990. See also Barth, supra, wherein the court stated:

"* * * we are bound to apply the statute as we find it written. The current statutory scheme does not permit us to compensate the plaintiffs. Though we are aware that Congress has exhorted the agencies to schedule travel time so that it occurs within the work shift, 5 U.S.C. Sec. 6101(b)(2) (1970), sometimes this is impossible. Yet Congress, far from providing a remedy, has affirmatively prohibited an award of overtime pay for travel time unless the peculiar conditions of the statutory exception are met." 568 F.2d at 1332-1333.

In Mr. Glass's case, none of the four statutory exceptions set out in 5 U.S.C. Sec. 5542(b) (2) (B), supra, was met. Accordingly, Mr. Glass's claim for compensatory time for his travel to and from the training session may not be allowed, and therefore the Claims Group's denial of his claim is affirmed.

1. Settlement Z-2867854-347, June 4, 1992.

2. See 5 U.S.C. Sec. 5543(a).

3. Compare, William A. Lewis, et al., 69 Comp.Gen. 545 (1990), a case where overtime was allowed because the training course was given by a private institution and the government had no control over the content or scheduling of the course.