B-171340, MAR 26, 1971, 50 COMP GEN 674

B-171340, MAR 26, 1971, 50 COMP GEN 674

COMPENSATION - OVERTIME - TRAVEL TIME - ADMINISTRATIVELY CONTROLLABLE AN EMPLOYEE PERFORMING A SUNDAY THROUGH THURSDAY TOUR OF DUTY WHO WHEN DIRECTED ON WEDNESDAY TO TRAVEL 100 MILES TO REPORT FOR TEMPORARY DUTY AT 8 A.M. SATURDAY, TRAVELS ON FRIDAY AND RETURNS ON SATURDAY INSTEAD OF TRAVELING THURSDAY AND SUNDAY, REGULAR WORKDAYS, IS NOT ENTITLED UNDER 5 U.S.C. 5544(B) TO OVERTIME COMPENSATION FOR THE TRAVEL TIME, WHICH HAVING BEEN ADMINISTRATIVELY CONTROLLABLE MAY NOT BE CONSIDERED EMPLOYMENT. EVEN IF THE SATURDAY WORK WAS HELD TO BE ADMINISTRATIVELY UNCONTROLLABLE, IN VIEW OF THE ADVANCE NOTICE TO THE EMPLOYEE, TWO OTHER REQUISITES MUST BE MET TO QUALIFY THE TRAVEL TIME AS HOURS OF WORK - AN OFFICIAL NECESSITY FOR THE SERVICES AND AT LEAST TWO SUCCESSIVE OFF-DUTY DAYS OF TRAVEL, AND THE TRAVEL REQUIREMENT WAS NOT MET BY THE EMPLOYEE.

TO BEECHER F. LEWIS, UNITED STATES DEPARTMENT OF THE INTERIOR, MARCH 26, 1971:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 12, 1970 (REFERENCE SPA-FMF), AND ENCLOSURES, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $54.95 IN FAVOR OF EMIL J. BORUP, AN EMPLOYEE OF THE SOUTHWESTERN POWER ADMINISTRATION (SPA), REPRESENTING OVERTIME PAY FOR TIME SPENT IN TRAVEL.

MR. BORUP SAYS THAT ON WEDNESDAY, SEPTEMBER 16, 1970, HIS SUPERVISOR INSTRUCTED HIM TO BE AT THE IDALIA, MISSOURI, SUBSTATION AT 8 A.M. ON SATURDAY, SEPTEMBER 19, 1970, A DISTANCE OF APPROXIMATELY 100 MILES FROM HIS OFFICIAL STATION, TO TAKE CARE OF SOME SWITCHING WHICH COULD NOT BE SCHEDULED DURING THE WEEK BECAUSE IT INVOLVED OPENING TRANSMISSION CIRCUITS AND THE POWER LOADS WERE TOO GREAT DURING THE WEEK TO PERMIT THIS TO BE DONE. HE TRAVELED BY GOVERNMENT VEHICLE FROM HIS OFFICIAL STATION, JONESBORO, ARKANSAS, TO SIKESTON, MISSOURI (NEAR IDALIA), ON FRIDAY, SEPTEMBER 18, 1970, FROM 4 P.M. TO 8 P.M. IN ORDER TO PERFORM THE SCHEDULED WORK ON SATURDAY MORNING. DUE TO INCLEMENT WEATHER THE WORK WAS CANCELED. HE WAS CREDITED WITH 1 HOUR "SHOW-UP" TIME FROM 6:30 A.M. TO 7:30 A.M., SATURDAY, SEPTEMBER 19, 1970, AND HE RETURNED TO JONESBORO TRAVELING FROM 12 NOON TO 3 P.M. THE SAME DAY.

SINCE MR. BORUP HAD WORKED 40 HOURS FROM SUNDAY, SEPTEMBER 13 THROUGH THURSDAY, SEPTEMBER 17, HE WAS NOT SCHEDULED TO WORK ON FRIDAY, SEPTEMBER 18 AND SATURDAY, SEPTEMBER 19. THUS, HIS SUPERVISOR SUBMITTED OVERTIME DAILY WORK REPORTS FOR HIM COVERING 4 HOURS ON SEPTEMBER 18 AND 4 HOURS ON SEPTEMBER 19. ON SEPTEMBER 21 AUTHORIZATION FOR OVERTIME WORK AND COMPENSATION FOR THE 8 HOURS INVOLVED WAS APPROVED BY THE DEPUTY ADMINISTRATOR. HE WAS PAID OVERTIME FOR 1 HOUR "SHOW-UP" TIME FOR SEPTEMBER 19 FROM 6:30 A.M. TO 7:30 A.M. HOWEVER, OVERTIME COMPENSATION FOR THE TIME SPENT IN TRAVELING WAS ADMINISTRATIVELY DENIED FOR THE REASON THAT SINCE HE WAS NOTIFIED IN ADVANCE OF THE "SCHEDULED" SWITCHING THE EVENT WAS CONSIDERED TO BE ADMINISTRATIVELY CONTROLLABLE BY HIS OFFICE AND THEREFORE CANNOT BE CONSIDERED AS EMPLOYMENT. THE VOUCHER REPRESENTS A RECLAIM OF THE AMOUNT WITHHELD FROM PAYMENT.

IT IS PROVIDED IN 5 U.S.C. 6101(B)(2) THAT:

TO THE MAXIMUM EXTENT PRACTICABLE, THE HEAD OF AN AGENCY SHALL SCHEDULE THE TIME TO BE SPENT BY AN EMPLOYEE IN A TRAVEL STATUS AWAY FROM HIS OFFICIAL DUTY STATION WITHIN THE REGULARLY SCHEDULED WORKWEEK OF THE EMPLOYEE.

SECTION 5542, SUBCHAPTER V OF TITLE 5, U.S.C. PROVIDES FOR THE PAYMENT OF OVERTIME COMPENSATION FOR HOURS OF WORK OFFICIALLY ORDERED AND APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, SUBSECTION (B) OF THAT SECTION, AS AMENDED BY PUBLIC LAW 90-206, APPROVED DECEMBER 16, 1967, PROVIDES IN PERTINENT PART AS FOLLOWS:

(B) FOR THE PURPOSE OF THIS SUBCHAPTER -

(2) TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL-DUTY STATION OF AN EMPLOYEE IS NOT HOURS OF EMPLOYMENT UNLESS -

(B) THE TRAVEL *** (IV) RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY.

IN THE INSTANT CASE THE REQUIREMENT THAT THE WORK HAD TO BE SCHEDULED FOR PERFORMANCE ON A SATURDAY (THE EMPLOYEE'S OFF-DUTY DAY) MIGHT BE SAID TO HAVE BEEN ADMINISTRATIVELY UNCONTROLLABLE. HOWEVER, THAT FACT ALONE IS NOT SUFFICIENT WHERE THERE IS AMPLE ADVANCE NOTICE OF THE DATE SERVICES WILL BE NEEDED TO QUALIFY RELATED OVERTIME TRAVEL HOURS AS HOURS OF WORK. TWO OTHER REQUISITES MUST BE MET - (1) THERE MUST EXIST AN OFFICIAL NECESSITY IN CONNECTION WITH THE ADMINISTRATIVELY UNCONTROLLABLE EVENT, AND (2) THE SCHEDULED START OF THE EVENT MUST REQUIRE TRAVEL DURING A PERIOD OF AT LEAST TWO SUCCESSIVE OFF-DUTY DAYS. IN OTHER WORDS, ASSUMING AN OFFICIAL NECESSITY IS PRESENT, THEN IF THE EMPLOYEE'S TRAVEL DURING REGULARLY SCHEDULED HOURS WOULD RESULT IN PAYMENT OF AT LEAST 2 DAYS OF ADDITIONAL PER DIEM IN LIEU OF SUBSISTENCE FOR OFF-DUTY DAYS PRIOR TO THE BEGINNING OF THE SCHEDULED EVENT, TRAVEL MAY BE REQUIRED DURING OFF-DUTY HOURS AND BE REGARDED AS RESULTING FROM AN UNCONTROLLABLE EVENT. SEE B- 169078, APRIL 22, 1970. HERE THE EMPLOYEE COULD HAVE BEEN SCHEDULED TO TRAVEL THURSDAY AFTERNOON DURING HIS REGULAR DUTY HOURS. ALTHOUGH FRIDAY AND SATURDAY WERE HIS OFF-DUTY DAYS, IT DOES NOT APPEAR THAT ADDITIONAL DAYS OF PER DIEM IN LIEU OF SUBSISTENCE WOULD HAVE BEEN PAYABLE FROM THE TIME HE WOULD HAVE HAD TO DEPART ON THURSDAY AFTERNOON UNTIL 8 A.M. SATURDAY MORNING, THE TIME HE WAS SCHEDULED TO PERFORM THE WORK.

WITH RESPECT TO THE RETURN TRAVEL ON SATURDAY RATHER THAN ON SUNDAY, THE EMPLOYEE'S NEXT REGULAR WORKDAY, THERE IS NO SHOWING OF AN OFFICIAL NECESSITY FOR HIS IMMEDIATE RETURN ON SATURDAY. ACCORDINGLY, IT IS OUR VIEW THAT MR. BORUP'S TRAVEL TIME MAY NOT BE CONSIDERED TO BE WORK UNDER THE PROVISIONS OF 5 U.S.C. 5544(B)(2)(B)(IV) FOR WHICH OVERTIME COMPENSATION IS PAYABLE. SEE ALSO B-164353, OCTOBER 21, 1969; B 168948, APRIL 8, 1970; B-170409, OCTOBER 15, 1970; AND B-170683, NOVEMBER 16, 1970.

THE VOUCHER, WITH ATTACHMENTS, IS RETURNED HEREWITH AND MAY NOT BE CERTIFIED FOR PAYMENT.