B-239057, Mar 29, 1991, 70 Comp.Gen. 380

B-239057: Mar 29, 1991

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Were found by the Office of Personnel Management (OPM) in its compliance order to be entitled to FLSA overtime for time spent as hours of work outside their normal duty hours for travel as passengers from their temporary lodgings to their temporary duty worksites outside established official duty stations. The claims for FLSA overtime are allowed since we do not find OPM's determination to be clearly erroneous or contrary to law or regulation. Reclamation Drill Rig Operators - FLSA Overtime Pay for Travel as Passengers: The issue is whether 13 Bureau of Reclamation employees. /1/ who are covered ("nonexempt") by the Fair Labor Standards Act (FLSA). Are entitled to overtime pay under the Act for travel they performed as passengers from temporary lodgings to temporary duty worksites. /2/ For the reasons that follow.

B-239057, Mar 29, 1991, 70 Comp.Gen. 380

CIVILIAN PERSONNEL - Compensation - Overtime - Eligibility - Travel time Thirteen employees, nonexempt from the Fair Labor Standards Act (FLSA), were found by the Office of Personnel Management (OPM) in its compliance order to be entitled to FLSA overtime for time spent as hours of work outside their normal duty hours for travel as passengers from their temporary lodgings to their temporary duty worksites outside established official duty stations. The agency disagrees with such determination. The claims for FLSA overtime are allowed since we do not find OPM's determination to be clearly erroneous or contrary to law or regulation.

Reclamation Drill Rig Operators - FLSA Overtime Pay for Travel as Passengers:

The issue is whether 13 Bureau of Reclamation employees, /1/ who are covered ("nonexempt") by the Fair Labor Standards Act (FLSA), 29 U.S.C. Sec. 201 et seq., are entitled to overtime pay under the Act for travel they performed as passengers from temporary lodgings to temporary duty worksites. /2/ For the reasons that follow, the claims may be paid.

BACKGROUND

The 13 employees' permanent duty station is Pleasant Grove, Utah. They are part of drilling crews which are often assigned to various temporary duty locations in the Upper Colorado Region, which includes the states of Utah, New Mexico, Colorado, Wyoming, and Arizona. During the period from July 1983 to November 1987, /3/ the employees were in a continuous travel status. Each day they assembled and commuted from their temporary duty lodging site, usually a motel, in a government vehicle so that they could arrive at their worksite at 7 a.m. The vehicle was also used to transport tools, spare parts, equipment, and fuel for the drilling equipment. Due to the type of work, the worksites were often in remote areas, requiring travel over unimproved roads in all types of weather conditions.

Only the driver of the government-owned vehicle transporting passengers and equipment to and from the worksite was compensated FLSA overtime for the time spent before 7 a.m. and after 5:30 p.m. The employees contended that the passengers in the vehicle should also be compensated for the travel time, especially since it sometimes took several hours one way to reach the worksite and to return because of the distance involved.

OPM's Determination

OPM's Dallas Regional Office issued an initial opinion on October 11, 1988, which held inter alia, /4/ that the employees were entitled to FLSA overtime for the period involved.

The OPM opinion cites Federal Personnel Manual (FPM) Letter 551-11 (Oct. 4, 1977), which states the general rule that employees are not entitled to be compensated for the time spent in normal home to work travel. However, since these employees were working at remote sites away from established official duty stations, OPM considered the lodging site to be the temporary duty station (equivalent to the official duty station). Time spent outside regular working hours as a passenger on a 1-day assignment away from the official duty station is compensable, and OPM concluded that the same principle applied to this situation in which employees assembled each day at their temporary duty station (lodging site) and traveled in a government vehicle to the temporary job site and returned the same day.

On December 12, 1988, the Bureau of Reclamation requested that OPM's Dallas Region reconsider its ruling on the basis of a decision of this Office, Charleston Naval Shipyard Employees, B-227695, Sept. 23, 1987, where we ruled that travel from temporary duty lodging sites to the temporary duty station at Kings Bay Naval Submarine Station was "normal home to work travel" and, therefore, not compensable.

OPM's Dallas Regional Office reaffirmed its original decision on March 1, 1989. OPM distinguished our decision in Charleston Naval Shipyard Employees on the basis that it relied on that portion of FPM Letter No. 551-11, para. D.1, pertaining to employees commuting from their temporary lodgings to a job site within the limits of the official duty station who are not entitled to FLSA compensation since such travel is considered noncompensable home to work travel. In OPM's view this case involves the time spent traveling to job sites outside the limits of a designated temporary duty station which is compensable.

The Director, OPM, affirmed the Regional Office's determination on December 4, 1989. The Bureau of Reclamation then appealed the OPM Director's decision to this Office.

OPINION

In view of the authority of OPM to administer the FLSA, we accord great weight to the determinations it reaches in carrying out this responsibility. We will not overrule OPM's findings of fact or determinations unless they are clearly erroneous or contrary to law or regulation. Lee R. McClure, 63 Comp.Gen. 546 (1984); John L. Svercek, 62 Comp.Gen. 58 (1982); Paul Spurr, 60 Comp.Gen. 354 (1981).

Essentially, the Bureau of Reclamation has appealed OPM's determination based on two decisions of this Office, namely Charleston Naval Shipyard Employees, B-227695, supra, and Naval Undersea Warfare Engineering Station, 68 Comp.Gen. 535 (1989). The Bureau contends that those decisions are in conflict with the OPM determination.

Here, OPM determined that the employees' lodging site was their official duty station and that their worksites were outside that station. Therefore, their travel from the lodgings to the worksites was hours of work. Our decisions in Charleston Naval Shipyard Employees, supra, and Naval Undersea Warfare Engineering Station, supra, involved temporary duty within the limits of a temporary duty station and are not applicable here.

Accordingly, since we find that OPM's determination was not clearly erroneous nor contrary to law or its own regulations, we have no basis to overrule its order of compliance.

Therefore, the employees' claims for FLSA overtime pay are allowed.

/1/ Blair O. Burton, Filbert Espinoza, Dan R. Gibson, Gale Hacking, Steve L. Henderson, David Krake, John T. Ledford, Danny Norman, Robert L. Schwab, Darryl Sholly, Robert L. Singson, Bradley Winters, Larry W. Zolman.

/2/ The request was submitted by the Chief, Finance Division, U.S. Department of the Interior, Bureau of Reclamation, Denver, Colorado. Reference D-7700.

/3/ The claims were received in this Office on March 26, 1990, and are considered to be constructively filed on June 15, 1989, the effective date of our change in procedures for filing claims against the United States. 4 C.F.R. Sec. 31.5 (1990).

/4/ There were several other FLSA overtime issues involved which the Bureau has conceded should be paid.