B-207857 L/M, OCT 5, 1982 OFFICE OF GENERAL COUNSEL

B-207857 L/M, OCT 5, 1982 OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MS. LINDA POLOVINA, FEDERAL AVIATION ADMINISTRATION:

THIS IS IN REFERENCE TO YOUR LETTER OF NOVEMBER 25, 1980, REQUESTING OUR OPINION CONCERNING THE LACK OF COMPENSATION WHEN YOU TRAVEL IN THE GOVERNMENT'S INTEREST ON YOUR REGULAR DAY OFF IN A WEEK WHICH INCLUDES A PAID GOVERNMENT HOLIDAY.

UNDER OUR STATUTORY AUTHORITY, THIS OFFICE GENERALLY RENDERS FORMAL DECISIONS ONLY ON MATTERS PRESENTED BY CERTIFYING OFFICERS, DISBURSING OFFICERS, AGENCY HEADS, AND TO CLAIMANTS WHO HAVE FILED MONETARY CLAIMS WITH THIS OFFICE. ALTHOUGH YOU ARE NOT ENTITLED TO A DECISION BY THE COMPTROLLER GENERAL UNDER THESE CRITERIA, THE FOLLOWING INFORMATION MAY BE HELPFUL.

YOU STATE THAT YOU ARE REQUIRED TO TRAVEL FROM YOUR PERMANENT DUTY STATION AT HYANNIS, MASSACHUSETTS, TO OKLAHOMA CITY OCCASIONALLY TO PARTICIPATE IN FEDERAL AVIATION ADMINISTRATION (FAA) TRAINING PROGRAMS. ON THESE OCCASIONS, YOU HAVE ALWAYS TRAVELED ON WEEKENDS (YOUR REGULAR DAYS OFF) DUE TO THE MIDWEEK SCHEDULING OF THE FAA ACADEMY COURSES. YOUR LETTER STATES AS FOLLOWS:

"IN A WEEK WITH A MONDAY HOLIDAY I NORMALLY HAVE THREE DAYS OFF (THE WEEKEND PLUS HOLIDAY) WORK FOUR DAYS AND GET PAID FOR FIVE. HOWEVER, WHEN TRAVELING TO OKLAHOMA CITY ON A SATURDAY THAT WAS PRECEEDED BY A WEEK WITH A MONDAY HOLIDAY, I HAVE ONLY TWO DAYS OFF (SUNDAY AND MONDAY) WORK FIVE DAYS AND GET PAID FOR FIVE.

"IN THE LATTER SITUATION, I FEEL THAT I AM EITHER MISSING A DAY OFF OR MISSING A DAY OF OVERTIME PAYMENT. FLSA STATES THAT THIS TRAVEL SITUATION IS WORK AND THEREBY WORTHY OF OVERTIME PAYMENT, BUT DOES NOT INCLUDE HOLIDAYS IN THE 40 HOUR WORKWEEK, SO I AM NOT ELIGIBLE FOR OVERTIME PAYMENT. TITLE 5 STATES THAT HOLIDAYS ARE TO BE INCLUDED AS HOURS OF WORK, BUT THAT THE TRAVEL SITUATION MENTIONED IS NOT WORK, SO I LOSE MY REGULAR DAY OFF."

YOU HAVE ASKED US TO RESPOND TO WHAT YOU SEE AS AN APPARENT INCONSISTENCY IN THE OVERTIME PROVISIONS OF THE FAIR LABOR STANDARDS ACT AND TITLE 5 OF THE U.S.C. UNDER THE CONDITIONS YOU HAVE DESCRIBED.

AS A GS-9 ELECTRONICS TECHNICIAN EMPLOYED BY THE FAA AT BARNSTABLE MUNICIPAL AIRPORT, HYANNIS, MASSACHUSETTS, YOU ARE COVERED (NONEXEMPT) UNDER THE FAIR LABOR STANDARDS ACT (FLSA), 29 U.S.C. SEC. 201 ET SEQ., AS AMENDED BY PUBLIC LAW 93-259, APRIL 8, 1974. AS A NONEXEMPT EMPLOYEE UNDER THE FLSA, YOU ARE ENTITLED TO OVERTIME COMPENSATION UNDER EITHER THE FLSA OR TITLE 5, UNITED STATES CODE, WHICHEVER PROVIDES THE GREATER BENEFIT. 60 COMP.GEN. 493, 494 (1981); 54 COMP.GEN. 371, 375 (1974).

THE FLSA REQUIRES PAYMENT OF OVERTIME COMPENSATION TO NONEXEMPT EMPLOYEES FOR HOURS WORKED IN EXCESS OF 40 HOURS PER WEEK. 29 U.S.C. SEC. 207 (1976). UNDER THE FLSA, AN EMPLOYEE'S "TIME SPENT TRAVELING (BUT NOT OTHER TIME IN TRAVEL STATUS) AWAY FROM HIS OFFICIAL DUTY STATION IS HOURS WORKED WHEN IT CUTS ACROSS THE EMPLOYEE'S WORKDAY. THE TIME IS NOT ONLY HOURS WORKED ON REGULAR WORKDAYS DURING NORMAL WORK HOURS BUT ALSO DURING THE CORRESPONDING HOURS ON NONWORK DAYS." SEE ATTACHMENT 4 TO FPM LETTER 551-1, MAY 15, 1974, AT PARAGRAPH C. ACCORDINGLY, YOUR WEEKEND TRAVELTIME FROM HYANNIS TO OKLAHOMA CITY DURING CORRESPONDING WORK HOURS MAY BE CLASSIFIED AS "HOURS OF WORK" UNDER THE FLSA.

FPM LETTER 551-1 ALSO PROVIDES, HOWEVER, THAT:

"EXCUSED ABSENCES WITH PAY (HOLIDAYS, SICK, ANNUAL OR OTHER PAID LEAVE) ARE NOT PERIODS OF WORK EVEN THOUGH THE EMPLOYEE IS COMPENSATED FOR THOSE PERIODS OF NONWORK."

IN LIGHT OF THIS PROVISION, IN A WEEK WITH A MONDAY HOLIDAY, YOU WILL BE CONSIDERED TO HAVE WORKED A TOTAL OF ONLY 32 HOURS FOR THE WEEK - 4 WORKDAYS OF 8 HOURS EACH - IN ADDITION TO THE WEEKEND TRAVEL. WHEN YOU BEGIN YOUR WEEKEND TRAVEL, YOU WOULD BE 8 HOURS SHORT OF HAVING WORKED A 40 HOUR WEEK.

SECTION 5542 OF TITLE 5, U.S.C. (1976) PROVIDES THAT "HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR *** IN EXCESS OF 8 HOURS IN A DAY, PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK," FOR WHICH EXTRA COMPENSATION IS TYPICALLY PROVIDED. UNDER TITLE 5, HOWEVER, AN EMPLOYEE'S TRAVELTIME OUTSIDE OF REGULAR DUTY HOURS IS GENERALLY NOT CONSIDERED HOURS OF EMPLOYMENT FOR PURPOSES OF COMPUTING OVERTIME PAY, AND IS NOT COMPENSABLE EXCEPT AS PROVIDED FOR BY THE CONGRESS IN 5 U.S.C. SEC. 5542 (1976). SEE BARTH AND LEVINE V. UNITED STATES, 568 F.2D 1329 (CT.CL. 1978).

SPECIFICALLY, UNDER THE PROVISIONS OF 5 U.S.C. SEC. 5542(B)(2)(B) (1976), AN EMPLOYEE MAY NOT BE COMPENSATED FOR TRAVELTIME AWAY FROM THE OFFICIAL DUTY STATION UNLESS 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."

IT DOES NOT APPEAR THAT YOUR WEEKEND TRAVEL FALLS WITHIN ANY OF THE ABOVE CATEGORIES. YOU DO NOT ALLEGE THAT YOU PERFORM WORK WHILE TRAVELING, NOR ARE YOU EXPOSED TO "ARDUOUS CONDITIONS" EN ROUTE TO OKLAHOMA. THE ONLY OTHER POSSIBILITY WHICH MIGHT ENTITLE YOU TO BE COMPENSATED FOR YOUR WEEKEND TRAVEL WOULD BE WHERE SUCH TRAVEL RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY.

THE OFFICE OF PERSONNEL MANAGEMENT (OPM) IS AUTHORIZED BY 5 U.S.C. SEC. 5548(A) TO PRESCRIBE REGULATIONS TO ADMINISTER THE OVERTIME STATUTES. IMPLEMENTING THE STATUTORY EXCEPTION IN 5 U.S.C. SEC. 5542(B)(2)(B)(IV), OPM HAS INTERPRETED THE PHRASE "COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY" TO REFER TO THE ABILITY OF AN EXECUTIVE AGENCY TO CONTROL THE EVENT WHICH NECESSITATES AN EMPLOYEE'S TRAVEL. FEDERAL PERSONNEL MANUAL (FPM) SUPPLEMENT 990-2, BOOK 550, SUBCHAPTER S1-3, PAGE 550-8.03 (ADDED JULY 1969). THE FPM SUPPLEMENT CONTINUES AS FOLLOWS:

"TRAINING COURSES THROUGHOUT THE COUNTRY GENERALLY ARE SCHEDULED TO START AT THE BEGINNING OF THE WORKWEEK, AND USUALLY START AT 9 A.M. DAILY. ATTENDANCE AT TRAINING CENTERS LOCATED AWAY FROM AN EMPLOYEE'S DUTY STATION, THEREFORE, USUALLY WILL REQUIRE THE EMPLOYEE TO TRAVEL OUTSIDE HIS NORMAL WORK HOURS. SINCE THE AGENCY WHICH IS CONDUCTING THE TRAINING COURSE CAN SCHEDULE THE HOURS OF TRAINING, THE TRAINING COURSE IS AN EVENT WHICH CAN BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY; AND EMPLOYEES WHO ATTEND THE COURSE WILL NOT BE PAID FOR TIME IN TRAVEL STATUS REGARDLESS OF WHETHER EMPLOYED BY THE AGENCY CONDUCTING THE TRAINING COURSE OR ANOTHER AGENCY".

UNLIKE THE FLSA, HOWEVER, UNDER TITLE 5 A PAID ABSENCE FOR HOLIDAYS OR ANNUAL OR SICK LEAVE IS CONSIDERED EMPLOYMENT. FPM SUPPLEMENT 532 1, SUBCHAPTER S-8-4B(8), MAY 31, 1978. ACCORDING TO THE PROVISIONS OF TITLE 5, THEREFORE, YOU WOULD BE ENTITLED TO 40 HOURS OF BASIC PAY - 8 HOURS FOR THE HOLIDAY WHEN YOU ARE OFF, AND 32 HOURS FOR FOUR 8 HOUR DAYS WORKED TUESDAY THROUGH FRIDAY IN THE SITUATION DESCRIBED.

AN EMPLOYEE MAY NOT, HOWEVER, RECEIVE HER REGULAR RATE OF PAY FOR TRAVELTIME UNDER FLSA IN ADDITION TO THE 40 HOURS COMPENSATED FOR UNDER TITLE 5. SUCH COMPENSATION WOULD BE AN IMPROPER COMBINATION OF THE BENEFITS PROVIDED BY THE FLSA AND TITLE 5. SINCE YOU MAY RECEIVE COMPENSATION FOR 40 HOURS UNDER TITLE 5 FOR THE WORKWEEK IN QUESTION, AND SINCE UNDER FLSA YOU WILL HAVE WORKED LESS THAN 40 HOURS IN SUCH A WEEK, YOU WILL HAVE RECEIVED THE GREATER OF THE BENEFITS PROVIDED BY THE APPLICABLE LAWS.

YOU ALSO ASK WHO WOULD BE RESPONSIBLE FOR RESOLVING ANY ALLEGED INCONSISTENCIES IN THE OVERTIME PROVISIONS. AS YOU WILL NOTE FROM THE PRECEDING DISCUSSION, THE AUTHORITY IN THIS AREA IS STATUTORY. THEREFORE, ANY CHANGE IN THE LAW WOULD HAVE TO BE MADE BY CONGRESS.

WE HOPE THE FOREGOING HAS BEEN OF SOME ASSISTANCE TO YOU.