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B-176118, JUL 17, 1972

B-176118 Jul 17, 1972
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CLAIMANT WAS SERVING AS A GS-11(7) AND THE OVERTIME HAS BEEN CLASSIFIED BY THE FAA AS IRREGULAR BECAUSE OF THE INABILITY TO PREDICT THE AMOUNT TO BE WORKED BY THE INSPECTION CREWS IN A 24-HOUR PERIOD. IT MAY BE PROPERLY CLASSIFIED AS IRREGULAR AND THUS SUBJECT TO COMPENSATORY TIME OFF SINCE IT IS NOT THE NUMBER OF HOURS WORKED. THE INABILITY TO SCHEDULE IN ADVANCE THAT DETERMINES THAT OVERTIME WORK IS IRREGULAR. THE CLAIM IS DENIED. THE RECORD SHOWS THAT YOU WERE EMPLOYED BY FAA AS AN ELECTRONIC TECHNICIAN. YOUR CLAIM FOR OVERTIME IS BASED ON THE PROVISIONS OF PUBLIC LAW 90-556. YOU WERE REQUIRED TO WORK OVERTIME OCCASIONALLY AND RECEIVED COMPENSATORY TIME INSTEAD OF OVERTIME COMPENSATION.

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B-176118, JUL 17, 1972

CIVILIAN EMPLOYEE - OVERTIME - COMPENSATORY TIME OFF DECISION DENYING CLAIM OF JOHN D. KELLY, EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, FOR 54 HOURS OVERTIME PAY ALLEGEDLY DUE. UNDER 5 U.S.C. 5543(A)(2), AN EMPLOYEE WITH A SALARY ABOVE GS-10 MAY BE REQUIRED TO TAKE COMPENSATORY TIME OFF INSTEAD OF RECEIVING OVERTIME PAY FOR IRREGULAR OVERTIME. CLAIMANT WAS SERVING AS A GS-11(7) AND THE OVERTIME HAS BEEN CLASSIFIED BY THE FAA AS IRREGULAR BECAUSE OF THE INABILITY TO PREDICT THE AMOUNT TO BE WORKED BY THE INSPECTION CREWS IN A 24-HOUR PERIOD. ALTHOUGH CLAIMANT WORKED 6 OR MORE HOURS OVERTIME PER PAY PERIOD, IT MAY BE PROPERLY CLASSIFIED AS IRREGULAR AND THUS SUBJECT TO COMPENSATORY TIME OFF SINCE IT IS NOT THE NUMBER OF HOURS WORKED, BUT THE INABILITY TO SCHEDULE IN ADVANCE THAT DETERMINES THAT OVERTIME WORK IS IRREGULAR. UNDER THESE CIRCUMSTANCES, THE CLAIM IS DENIED.

TO MR. JOHN D. KELLY:

THIS REFERS TO YOUR LETTER OF MAY 5, 1972, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF OUR OFFICE SETTLEMENT OF APRIL 26, 1972, WHICH DISALLOWED YOUR CLAIM FOR 54 HOURS OVERTIME COMPENSATION ALLEGED TO BE DUE FOR SERVICES RENDERED AS AN EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION (FAA), DEPARTMENT OF TRANSPORTATION.

THE RECORD SHOWS THAT YOU WERE EMPLOYED BY FAA AS AN ELECTRONIC TECHNICIAN, GS-11(7), $15,141 PER ANNUM. YOUR CLAIM FOR OVERTIME IS BASED ON THE PROVISIONS OF PUBLIC LAW 90-556, APPROVED OCTOBER 10, 1968, 5 U.S.C. 5542(A)(3). AS A MEMBER OF A FLIGHT INSPECTION AIRCRAFT CREW ASSIGNED TO THE LOS ANGELES DISTRICT OFFICE, YOU WERE REQUIRED TO WORK OVERTIME OCCASIONALLY AND RECEIVED COMPENSATORY TIME INSTEAD OF OVERTIME COMPENSATION. WHEN IT WAS NOT POSSIBLE TO PREDICT THE NUMBER OF DAYS IN THE WEEK WHICH MIGHT REQUIRE OVERTIME OR THE AMOUNT OF OVERTIME WHICH MIGHT BE REQUIRED IN A 24-HOUR PERIOD, THE ADMINISTRATIVE OFFICE CLASSIFIED THIS KIND OF OVERTIME AS IRREGULAR OR OCCASIONAL SINCE IT COULD NOT BE SCHEDULED IN ADVANCE. THE OVERTIME WHICH COULD BE SCHEDULED IN ADVANCE WAS CONSIDERED SCHEDULED OVERTIME AND WHEN YOU WORKED FOUR OR MORE HOURS OF SUCH OVERTIME WITHIN A PAY PERIOD YOU WERE COMPENSATED FOR ALL SUCH HOURS AT THE OVERTIME RATE. AS OF THE CLOSE OF THE PAY PERIOD, OCTOBER 2, 1971, YOU HAD 54 HOURS COMPENSATORY TIME TO YOUR CREDIT.

5 U.S.C. 5543(A)(2) PROVIDES AS FOLLOWS:

"(A) THE HEAD OF AN AGENCY MAY -

"(2) PROVIDE THAT AN EMPLOYEE WHOSE RATE OF BASIC PAY IS IN EXCESS OF THE MAXIMUM RATE OF BASIC PAY FOR GS-10 SHALL BE GRANTED COMPENSATORY TIME OFF FROM HIS SCHEDULED TOUR OF DUTY EQUAL TO THE AMOUNT OF TIME SPENT IN IRREGULAR OR OCCASIONAL OVERTIME WORK INSTEAD OF BEING PAID FOR THAT WORK UNDER SECTION 5542 OF THIS TITLE."

UNDER THE ABOVE-CITED STATUTE THE AGENCY HEAD HAS THE AUTHORITY TO REQUIRE EMPLOYEES AT SALARIES ABOVE THE MAXIMUM SCHEDULED RATE OF GRADE GS -10 ($14,937) TO TAKE COMPENSATORY TIME OFF INSTEAD OF RECEIVING OVERTIME PAY FOR IRREGULAR OR OCCASIONAL OVERTIME DUTY. SINCE YOUR SALARY IS $15,141 PER ANNUM, YOU ARE SUBJECT TO THE STATUTORY PROVISION. HOWEVER, YOU QUESTION WHETHER OVERTIME TOTALING 6 OR MORE HOURS DURING ANY ONE PAY PERIOD MAY BE CLASSED AS BEING IRREGULAR OR OCCASIONAL. IT IS NOT THE NUMBER OF HOURS INVOLVED THAT DETERMINES THE CHARACTER OF THE OVERTIME BUT WHETHER THE OVERTIME WAS REGULARLY SCHEDULED IN ADVANCE. WE HAVE HELD THAT THE TERM "REGULARLY SCHEDULED OVERTIME" AS USED IN 5 U.S.C. 5545 IS WORK WHICH IS DULY AUTHORIZED IN ADVANCE AND SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS. SEE 48 COMP. GEN. 334 (1968). WE SEE NO REASON WHY THE DEFINITION IN THAT DECISION SHOULD NOT BE APPLICABLE IN THE INSTANT CASE.

YOU ALSO STATE THAT ON SEVERAL OCCASIONS YOU RECEIVED COMPENSATORY TIME INSTEAD OF OVERTIME COMPENSATION WHILE SUPPORTING AND ASSISTING EMPLOYEES OF OTHER FAA UNITS WHO WERE PAID OVERTIME COMPENSATION. IN THIS CONNECTION WE HAVE BEEN INFORMALLY ADVISED BY FAA THAT OVERTIME IS PAID WHEN WORK CONDITIONS DO NOT PERMIT THE SCHEDULING OF COMPENSATORY TIME OR AN EMPLOYEE HAS ACCUMULATED 80 HOURS OF SUCH TIME.

IN VIEW OF THE ABOVE THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.

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