Philip J. Jordan, et al.-- Overtime Pay for Travel During Nonduty Hours B-250069 July 14, 1993 72 Comp.Gen. 286

Philip J. Jordan, et al.-- Overtime Pay for Travel During Nonduty Hours B-250069 July 14, 1993 72 Comp.Gen. 286

Civilian Personnel Compensation Overtime Eligibility Travel time The claims of four employees for overtime pay may not be paid for travel during nonduty hours going to or returning from contractors' manufacturing sites to witness acceptance tests of equipment purchased under contract by the employees' agency. Because the tests were scheduled or controlled administratively within the meaning of 5 U.S.C. Sec. 5542(b)(2)(B)(iv) (1988), overtime for the travel time is not allowable. Civilian Personnel Compensation Overtime Eligibility Travel time The claims of four employees for overtime pay may not be paid for travel during nonduty hours going to or returning from contractors' manufacturing sites to witness acceptance tests of equipment purchased under contract by the employees' agency. Because the tests were scheduled or controlled administratively within the meaning of 5 U.S.C. Sec. 5542(b)(2)(B)(iv) (1988), overtime for the travel time is not allowable.

DECISION The Bonneville Power Administration (BPA), Department of Energy asks for our decision whether four BPA employees may be paid overtime compensation for travel outside normal work hours to contractors' manufacturing sites.[6] We hold that the employees may not be paid for travel time.

BACKGROUND

This matter concerns claims for overtime compensation under 5 U.S.C. Sec. 5542 by four BPA engineers who traveled during nonduty hours at the direction of their supervisors to witness acceptance tests of equipment BPA was purchasing for use in its high voltage transmission facilities. The travel was from the employees' duty station in Portland, Oregon, to various contractors' manufacturing sites where the tests were being conducted. Under the contracts for the equipment, the contractors scheduled the dates and times for the tests. The agency reports that the only limiting proviso is that the contractor give the BPA engineering representative not less than 7 calendar days advance notice of the date when tests will be performed.

ANALYSIS

The general rule regarding overtime pay is that employees may not be compensated for time spent on official travel outside their scheduled duty hours when they do not perform work during the period of travel. See 71 Comp.Gen. 228 (1992). As an exception to this rule, however, under 5 U.S.C. Sec. 5542(b)(2)(B) (1988), time spent in travel status away from the employee's official duty station is hours of employment for overtime compensation if--

"the travel . . . (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."

We have interpreted subsection 5542(b)(2)(B)(iv) to require that to be compensated for overtime, (1) the travel must result from an event that could not be scheduled or controlled administratively and (2) there must exist an immediate official necessity concerning the event that required the travel outside the employee's regular duty hours. See 70 Comp.Gen. 77 (1990), and cases cited therein.

We further clarified the "immediate official necessity" test, in William A. Lewis, et al., 69 Comp.Gen. 545 (1990), which concerned employees who had to travel outside regular duty hours to attend training courses at a private institution where, although the agency had control of the employees' attendance and had ample notice of the scheduling of the courses, it had no control over the scheduling of the courses. There we stated as follows regarding the two requirements of the test:

". . . this [test] has limited utility in situations like the instant case where an employee must be present at an event scheduled for a particular time without any control by the government. In these situations, the scheduling of the event itself supplies the immediate official necessity, depending on the timing, for travel outside regular duty hours in order to accommodate that schedule." William A. Lewis, et al., 69 Comp.Gen. 545, supra, at 547 (footnote omitted).

However, our holding in 69 Comp.Gen. 545, supra, is distinguishable from the situation presented by BPA. There, the agency had no control whatsoever over the scheduling of training courses at the private institutions. BPA, in contrast, did have at least indirect control over the scheduling of the tests in question. While the BPA contracts provided that the contractor was to schedule the tests, the contracts also provided, as BPA notes, that the contractor was required to give BPA advance notice of a testing date so that a BPA representative could witness the testing. See Sec. 4-3.1 of the contract specifications. Considering that the purpose of the testing was to ascertain whether the BPA representative could permit release of the contractor's equipment for shipment to BPA, see Sec. 4-8.1 of the specifications, we believe that BPA could have readily obtained a reasonable rescheduling of a test date when necessary to permit its representative to attend a particular test.

Thus, we believe that our decision, Dr. L. Friedman, 65 Comp.Gen. 772 (1986), is the controlling authority for this situation. That decision concerned a Nuclear Regulatory Commission (NRC) employee who traveled away from his duty station to observe a procedure scheduled and conducted by a licensee of the NRC on a Friday. The agency received advance notice of the scheduled event and thus was able to schedule the employee's travel during regular duty hours on Thursday. The procedure on Friday extended beyond the employee's regular duty hours and he received overtime compensation for the period during which he was observing the event. The question presented to us was whether he was entitled to overtime compensation for his travel time returning to his duty station Friday evening after completion of the event.

In denying compensation in the Friedman case, we cited a 1978 Court of Claims decision, Barth v. United States, 568 F.2d 1329 (Ct. Cl. 1978), in which the court held that for an event to qualify as administratively uncontrollable within the meaning of 5 U.S.C. Sec. 5542(b)(2)(B), supra, there must be a "total lack of Government control." In Barth the plaintiffs contended that since they were sent to observe a weapons test scheduled by a contractor, the event was not administratively controllable. The court, however, found that since the agency's contract called for the test and since the contractor advised the agency in advance of the test dates, there was not a total lack of governmental control.

In the Friedman case itself, we concluded that since the employee "attended and observed an event which was scheduled and conducted by an organization operating under a license issued by his agency and the agency was provided with advance notice of this scheduled event," the travel was not wholly outside the control of the agency.[7]

The situation in Friedman is no different from the situations in the present case. BPA by contract has agreed to allow the contractor to schedule the tests, but requires the contractor to give advance notice to the agency of when the tests are to be conducted and to allow a BPA representative to witness the tests.

Accordingly, the four employees may not be paid overtime compensation for travel time outside their regularly scheduled duty hours to proceed to and return from the administratively uncontrollable events.

The claims presented by the agency may not be paid.

6. The request was submitted by Paul R. Balthazar, Acting Chief, Disbursement Operations Branch, BPA, concerning overtime claims from Philip J. Jordan, Vincent G. Ierulli, John C. Joyce, and Joseph L. Olin.

7. In an earlier case, 50 Comp.Gen. 519, 521 (1971), we held that an employee's travel outside duty hours to inspect a shipment of peanut butter that the Department of Agriculture contracted to purchase was not within the control of the government where the inspection was made when requested by the contractor who was required by the contract to have it inspected before shipment. In that case, however, it does not appear the contractor was required to give the advance notice required in the present case. In any event it was decided prior to both the Barth and Friedman decisions which provide more developed and current interpretations of the statute.