B-237852, Jun 18, 1990

B-237852, Jun 18, 1990

CIVILIAN PERSONNEL - Compensation - Overtime - Eligibility - Travel time DIGEST: Nine employees, exempt from the Fair Labor Standards Act, were designated to drive government vans transporting other employees between lodgings and temporary duty worksites. Their claims for title 5 overtime pay for driving time are denied because their travel to and from lodgings does not meet any of the four conditions for overtime set forth in 5 U.S.C. Secs. 5544(a) and 5542(b)(2)(B).

U.S. Army Corps of Engineers - Claims for Overtime Pay - Driving to Temporary Duty Sites:

The issue is whether eight "prevailing rate" (wage-board) supervisors and one General Schedule (GS) employee, who are all exempt from the Fair Labor Standards Act, are entitled to overtime pay under title 5, United States Code, when they are designated to transport other employees in government vehicles between their lodgings and worksites, while on temporary duty, before and after their normal 8 hour tour of duty. /1/ For work crews performing river bank stabilization on the Mississippi River the Army provides transportation between temporary lodgings and temporary worksites by government vehicles, since the locations of the temporary lodgings are varying distances away from the remote work sites. The designated employees believe that since they drive these government vehicles to transport other government employees during the revetment season of 75 to 150 days each year, they should be entitled to overtime pay.

Overtime pay for the eight "prevailing rate" (wage-board) supervisors is governed by 5 U.S.C. Sec. 5544(a) (1988) which provides, in relevant part, that:

"time spent in 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 arduous conditions, or (iv) results from an event which could not be scheduled or controlled administratively."

Overtime pay for the GS-7 employee is governed by 5 U.S.C. Sec. 5542(b)(2)(B) (1988), which is similar to the statute quoted above.

In this case, it is clear that none of the four specified conditions was met. The travel did not involve the performance of work while traveling, nor was it incident to the performance of work while traveling, since the primary function of these supervisory employees was to supervise the work crews performing river bank stabilization and not to transport them. Also, there is no suggestion that driving was part of their official duties or that they were otherwise required to do it. Further, there is nothing in the record which indicates that the travel was arduous or resulted from an administratively uncontrollable event.

Thus, there is no legal basis for allowing these employees overtime pay. See James Blackburn, Jr., 66 Comp.Gen. 658 (1987), where we denied Mr. Blackburn's claim for overtime compensation since his primary function was, likewise, to perform supervisory functions and not to transport mail and supplies from the post office. We also noted that Mr. Blackburn's transporting of mail and supplies outside of his regular duty hours could not be considered the performance of "work" while traveling.

Accordingly, the 9 employees may not be paid overtime pay under title 5.

/1/ This decision is in response to a request from Mr. George Levar, Acting Chief, Finance and Accounting Division, U.S. Army Corps of Engineers, Department of the Army.