B-163654, APRIL 13, 1977

B-163654, APRIL 13, 1977

NONEXEMPT EMPLOYEES ON 1-DAY ASSIGNMENT INVOLVING TRAVEL WHOSE RETURN TRAVEL AS PASSENGERS WAS DELAYED BEYOND END OF NORMAL WORKDAY ARE ENTITLED TO OVERTIME COMPENSATION FOR HOURS OF RETURN TRAVEL UNDER FAIR LABOR STANDARDS ACT, AS AMENDED.

STEVEN A. KEUTER, ET AL., - OVERTIME WHILE IN TRAVEL STATUS:

THIS ACTION IS IN RESPONSE TO A REQUEST DATED JUNE 6, 1975, FROM THE FINANCE AND ACCOUNTING OFFICER OF THE SAVANNA ARMY DEPOT, SAVANNA, ILLINOIS, FOR OUR DECISION WHETHER A VOUCHER FOR THE PAYMENT TO THREE EMPLOYEES OF OVERTIME COMPENSATION FOR TIME AWAITING TRANSPORTATION AND TRAVEL TIME MAY BE CERTIFIED FOR PAYMENT.

ON MARCH 5, 1975, THREE DEPOT EMPLOYEES, MESSRS. STEVEN A. KEUTER, JIMMIE A. MORFEY, AND WILBUR T. HARMS, WERE REQUIRED TO ACCOMPANY A SHIPMENT OF SPECIAL WEAPONS FROM THE DEPOT TO TRAUX AIR FORCE BASE, MADISON, WISCONSIN, FOR THE PURPOSE OF TRANSFERRING THE WEAPONS FROM A HELICOPTER TO A FIXED WING AIRCRAFT. THE NORMAL WORKSHIFT FOR THESE EMPLOYEES IS FROM 7:3O A.M. TO 4 P.M. AFTER LOADING THE ARMY HELICOPTER THEY DEPARTED FROM THE DEPOT AT 9 A.M. AND ARRIVED AT TRUAX AFB AT 9:50 A.M. THE TRANSFER OPERATIONS WERE COMPLETED BEFORE NOON, AND AT 12:15 P.M. THE EMPLOYEES BOARDED THE HELICOPTER FOR THE RETURN FLIGHT. BECAUSE OF INCLEMENT WEATHER AND TURBULENCE, THE HELICOPTER WAS FORCED TO RETURN TO TRUAX AFB, AND THE EMPLOYEES WERE ADVISED TO REMAIN THERE UNTIL A BUS FROM THE DEPOT COULD PICK THEM UP. THE BUS ARRIVED AT TRUAX AT 5 P.M. AND RETURNED TO SVAD, ARRIVING AT 9:10 P.M. EACH OF THE EMPLOYEES HAS BEEN PAID 3/4 DAY PER DIEM. THE EMPLOYEES CLAIM THAT THE TIME BETWEEN 4 P.M. AND 9:10 P.M. IS COMPENSABLE AT OVERTIME RATES. ALL THREE EMPLOYEES ARE WAGE BOARD PERSONNEL.

ON MAY 1, 1974, PUB. LAW 93-259, 88 STAT. 56, THE FAIR LABOR STANDARDS AMENDMENTS OF 1974, AMENDED THE FAIR LABOR STANDARDS ACT (FLSA) OF 1938 TO INCLUDE WITHIN ITS COVERAGE ALL FEDERAL EMPLOYEES, WITH CERTAIN EXCEPTIONS NOT RELEVANT HERE. ALL OF THE CLAIMANTS ARE WAGE BOARD EMPLOYEES AND ARE CLASSIFIED AS "NONEXEMPT" EMPLOYEES UNDER THE FLSA. FOR OVERTIME PURPOSES FEDERAL EMPLOYEES WHO ARE NONEXEMPT UNDER THE FLSA ARE NOW COVERED BY TWO LAWS, TITLE 5 OF THE U.S.C. AND THE FLSA, AND MAY RECEIVE THE GREATER BENEFIT WHERE THE TWO STATUTES ARE INCONSISTENT.

THE TITLE 5 PROVISIONS FOR OVERTIME COMPENSATION OF WAGE BOARD EMPLOYEES FOR TIME SPENT IN A TRAVEL STATUS ARE LOCATED AT 5 U.S.C. 5544(A) (1970) WHICH STATES IN PERTINENT PART AS FOLLOWS:

"* * * TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY STATION OF AN EMPLOYEE SUBJECT TO THIS SUBSECTION IS NOT HOURS OF WORK 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 ARDOUS CONDITIONS, OR (IV) RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY."

IT APPEARS THAT THE RETURN TRAVEL PERFORMED BY THESE EMPLOYEES AS PASSENGERS IN A GOVERNMENT BUS DID NOT COME UNDER ANY OF THE FOUR CRITERIA NOTED IN THE ABOVE-CITED STATUTE.

TURNING TO THE FAIR LABOR STANDARDS ACT, IT REQUIRES PAYMENT TO NONEXEMPT EMPLOYEES OF OVERTIME, FOR HOURS IN EXCESS OF 40 HOURS PER WEEK, FOR ALL WORK WHICH THE EMPLOYEES PERFORM. 29 U.S.C. 207 (1970). THE CIVIL SERVICE COMMISSION IS AUTHORIZED TO ADMINISTER THE FLSA WITH RESPECT TO MOST FEDERAL EMPLOYEES, AND WE REQUESTED THE COMMISSION'S OPINION AS TO PAYMENT OF OVERTIME COMPENSATION UNDER THE FLSA IN THIS PARTICULAR CASE. THE CSC ADVISED OUR OFFICE BY LETTER OF FEBRUARY 3, 1977, THAT THE TIME SPENT BY THESE EMPLOYEES TRAVELING AS PASSENGERS BY BUS RETURNING FROM TRUAX AFB TO SAVANNA ARMY DEPOT IN THE SAME DAY IS CONSIDERED COMPENSABLE HOURS WORKED. THE CSC HAS ISSUED GUIDELINES IN FPM LETTER NO. 551-10, DATED APRIL 30, 1976, TO BE USED IN DETERMINING THE APPLICABILITY OF THE FLSA IN INSTANCES OF NONEXEMPT EMPLOYEES' TRAVEL. UNDER PARAGRAPH E.2 OF FPM LETTER NO. 551-10, TRAVEL AS A PASSENGER DURING A 1-DAY ASSIGNMENT IS CONSIDERED WORKING TIME.

AFTER A FULL REVIEW OF THE RECORD IN THIS CASE, WE CONCUR IN THE COMMISSION'S DETERMINATION THAT THE TRAVEL TIME INVOLVED HERE WAS COMPENSABLE HOURS OF WORK. ACCORDINGLY, THE VOUCHER MAY BE CERTIFIED FOR PAYMENT IN ACCORDANCE WITH THE FOREGOING.