B-224854.2, May 16, 1991

B-224854.2, May 16, 1991

CIVILIAN PERSONNEL - Compensation - Overtime - Eligibility - Actual work DIGEST: Forty-seven wage board employees of the Corps of Engineers river bank protection parties, non-exempt from the Fair Labor Standards Act (FLSA), claim overtime compensation for allegedly scheduled hours of overtime not actually worked. Their claims for overtime pay are denied because the provisions of both the Fair Labor Standards Act and 5 U.S.C. Sec. 5544(a), as they relate to the facts of the employment in this case, clearly contemplate that employees must actually work overtime hours in order to receive overtime pay. Further, the scheduling of overtime hours of work, even if "regularly scheduled" under 5 C.F.R. Sec. 610.121(b), does not result in entitlement to premium pay unless the hours were actually worked. Accordingly, there exists no authority for payment of overtime compensation.

Ronald O. Bonucchi, et al. - Claims for Overtime Pay - Hours Not Actually Worked:

The issue in this case is whether forty-seven "prevailing rate" (wage- board) employees, who are non-exempt from the Fair Labor Standards Act (FLSA), are entitled to overtime pay under either the FLSA or title 5, United States Code, based on their claim that they were scheduled for hours of overtime which they did not actually work. /1/ We hold that they are not entitled to the overtime claimed.

BACKGROUND

The claimants are employees of the Corps of Engineers Memphis District's Revetment Section working on units called Bank Protection Party Nos. 8, 9, and 11, performing river bank stabilization on the Mississippi River. the end of the work day, which may be less than 8 hours or as many as 10 hours, the employees are released from duty and have no further work responsibilities until their reporting time the next morning. It is undisputed that each employee is paid for a minimum of 8 hours of duty time per scheduled work day regardless of the actual number of hours he has worked on that particular day, and that each employee is paid time and one-half for each hour of overtime worked on any particular day.

It is the claim of the employees that the Corps of Engineers failed to schedule overtime as "regularly scheduled" even though management allegedly knew in advance that overtime was necessary to accomplish specific mission requirements. For this reason the employees believe that they are entitled to additional overtime compensation for hours which were in effect regularly scheduled overtime, notwithstanding that because of operational conditions those hours were not actually worked.

The employees contend that their regularly scheduled administrative workweek consists of 60 hours: the basic workweek of 40 hours (5 C.F.R. Sec. 610.111(a)(1)) plus 20 hours of regularly scheduled overtime (5 C.F.R. Sec. 610.102(g) and 5 C.F.R. Sec. 610.111(a)(2) and (b)) regardless of the categorization by the Corps of all hours over the 40 hour basic workweek as "irregular." The employees point out that 5 C.F.R. Sec. 610.121(b)(1) requires heads of agencies to "schedule an employee's regularly scheduled administrative workweek so that it corresponds with the employee's actual work requirements." Furthermore, the regulations state that if an agency knowingly fails to do so, the employee is entitled to premium pay for that period of work as if it were regularly scheduled. 5 C.F.R. Sec. 610.121(b)(3). /2/ The employees assert that, although their overtime is known by the Corps to be regular in nature and is regularly approved in advance, management erroneously labels it as irregular or occasional overtime and pays the employees only for the hours actually worked during the week, even though the employees contend that they are regularly scheduled for additional hours. In fact, the employees assert that it is rare for them to work an 8-hour day.

The Corps of Engineers asserts that the basic tour-of-duty of each crew member is a 40-hour workweek of 5 consecutive 8-hour days, and this basic tour-of-duty is Monday through Friday, with off days of Saturday and Sunday. There is an irregular overtime schedule that is anticipated and approved, but the Corps maintains is not regularly scheduled for each pay period for each of the units. This irregular overtime schedule is stated to be 2 hours per day during the basic workweek, and 10 hours on Saturday of the first week of the pay period, and 10 hours on Sunday of the second week of the pay period. The Corps of Engineers asserts that the overtime worked by the Memphis District is performed on a project (location) basis. When a certain project is finished, the Bank Protection Party moves on and construction stops during the move. Although it is anticipated that this overtime often will be necessary and it frequently occurs, the Corps asserts that it is not regularly scheduled overtime. The Corps maintains that although the project on which the crew of the plant is working may require overtime, it is the project and its time of completion that controls whether the overtime must be worked. It is maintained that because operating conditions necessitate unanticipated changes to the work schedule, the district overtime regulation /3 specifically states that overtime worked by revetment personnel is considered irregular overtime. The Corps concludes that, even if it was factually correct that the duty could be anticipated and occurred frequently and regularly, it would still be insufficient to support a legal conclusion that the work was compensable as regularly scheduled overtime.

OPINION

As federal employees, the claimants are covered by two statutes requiring compensation for overtime work. The Fair Labor Standards Act (FLSA), 29 U.S.C. Sec. 201 et seq. (1988), generally requires that all hours worked over 40 in a given workweek are compensable as overtime. The Federal Employees Pay Act, as pertaining to wage-board employees in 5 U.S.C. Sec. 5544(a) (1988) and commonly called "title 5" overtime, requires pay for work in excess of 40 hours in an administrative workweek or in excess of 8 hours in a day. Under this dual coverage, where there is an inconsistency between the statutes, employees are entitled to the greater benefit. /4/ See 54 Comp.Gen. 371 (1974).

Under the FLSA all hours worked over 40 in a given workweek are compensable as overtime pay. Therefore, under the FLSA, the issue of whether hours of work were scheduled or should have been scheduled is not determinative of whether overtime pay is applicable. As indicated above, it is undisputed that each employee has been paid the proper overtime pay for each hour of overtime actually worked on any particular day. Therefore, since only hours actually worked are compensable under the FLSA, any additional compensation which may be payable would have to be payable under title 5 and not under FLSA. See Robert L. Moore, Jr., B-239097, Sept. 17, 1990.

Regarding title 5 overtime in general, decisions of this office addressing compensable hours of work for purposes of an overtime entitlement under 5 U.S.C. Sec. 5544 have generally required the performance of actual work. The rule applicable for both classified and wage board employees /5/ is that since the authority for payment of overtime compensation contemplates the actual performance of duty, an employee may not be compensated for overtime work when he does not actually perform work during the overtime period. 59 Comp.Gen. 578 (1980); B-191619, May 9, 1978. See also Presser v. United States, 15 Cl. Ct. 672 (1988). /6/ Consequently, the existence of a designated "workweek" which may not have reflected the employees' actual hours of work, cannot alone form a basis for treating the unworked hours during the week as "hours of work." See Nathaniel R. Ragsdale, B-181237, Apr. 15, 1975.

The claimants contend that regardless of what label the Corps of Engineers chose to place on the scheduled hours of overtime, those hours in excess of 40 in each workweek constituted regularly scheduled overtime approved in advance, and as a result they are entitled to be paid for overtime under 5 C.F.R. Sec. 610.121(b)(3) even though as indicated above, the hours in question were not actually worked. We do not agree. The operative language of 5 C.F.R. Sec. 610.121(b)(3) is: "If it is determined that the head of an agency should have scheduled a period of work as part of the employee's regularly scheduled administrative workweek and failed to do so ... the employee shall be entitled to the payment of premium pay for that period of work as regularly scheduled work under the overtime provisions of this chapter." We believe that by the underscored language the regulation clearly contemplates the actual performance of work as a condition precedent to the payment of premium pay regardless of whether those scheduled hours were "regularly scheduled" as the claimants contend or "irregular" overtime as maintained by the Corps of Engineers. Therefore, the scheduling of overtime hours of work, as the Corps did, even if, arguendo, those hours should properly be categorized as "regularly scheduled" by operation of 5 C.F.R. Sec. 610.121(b), does not result in an a entitlement to premium pay for those hours unless they were actually worked. /7/

Since the Bank Protection Party employees were paid overtime compensation for all hours of overtime actually worked and no allegation has been made or proved that the employees have been denied overtime work as a result of a violation of the requirement of an agency regulation or mandatory provision of a negotiated labor management agreement (see footnote 6), there is no authority for the payment of additional overtime pay for hours not actually worked. Accordingly, payment of these employees' claims is not authorized.

/1/ This decision is in response to a request from the National Federation of Federal Employees on behalf of 47 Army Corps of Engineers employees. The agency questions some of the individual claims on the basis that they are supervisors, are duplications or contain questionable signatures. In view of our determination on the basic issue here, it is not necessary for us to resolve these matters.

/2/ See Mike Monroney Aeronautical Center, B-221630, July 10, 1986.

/3/ Memphis District Regulation No. 690-1-600, dated February 13, 1989. (The record indicates that all superseded regulations on regular and irregular overtime contain the same relevant language.)

/4/ The Federal Employees Pay Comparability Act of 1990, Public Law 101- 509, 210, 104 Stat. 1427, 1464 (1990), removed the requirement to compute overtime pay under both title 5 and the FLSA. That change does not affect the claims of these employees which arose prior to this change.

/5/ The statutory provisions of 5 U.S.C. Sec. 5542, pertaining to general schedule employees, and 5544 are similar and are generally to be construed in the same manner. See B-163730, Apr. 25, 1968.

/6/ We have recognized that there are instances and authorities which permit the payment of overtime compensation where no actual work was performed. A primary instance is standby overtime. Under 5 U.S.C. Sec. 5544(a), a wage-board employee who regularly is required to remain at or within the confines of his post of duty in a standby or on-call status in excess of 8 hours a day is entitled to overtime pay for hours of work, exclusive of eating and sleeping, for such time in excess of 40 hours a week. Generally, overtime pay under the standby provision has been allowed only where the employee's movements were narrowly limited and his activities severely restricted and where his status was in effect one of ready alert. Daniel W. McConnell, 61 Comp.Gen. 301 (1982). Another example is where an employee has been denied overtime work in violation of a mandatory provision in a negotiated labor management agreement or in accordance with requirements of agency regulations. In this type of case we have held that the employee may receive backpay under 5 U.S.C. Sec. 5596 (1988), for the overtime although work was not actually performed. See 59 Comp.Gen. 578 (1980) and cases cited. However, none of the exceptions apply to the facts in this case.

/7/ We informally contacted knowledgeable individuals in the Office of Personnel Management regarding this point, and they concurred in this view.