[Comments on Air Force Reservist's Entitlement to Overtime Compensation]

B-226735, MAY 22, 1987, OFFICE OF GENERAL COUNSEL

CIVILIAN PERSONNEL - COMPENSATION - OVERTIME - ELIGIBILITY - MILITARY LEAVE DIGEST: PRACTICE BY WHICH MALMSTROM AIR FORCE BASE RESCHEDULED EMPLOYEES FROM ASSIGNMENTS INVOLVING REGULARLY SCHEDULED OVERTIME TO REGULAR 40 HOUR WORK SCHEDULES FOR PERIODS OF MILITARY LEAVE APPEARS TO BE IMPROPER. UNDER 5 U.S.C. SEC. 6323, MEMBERS OF THE ARMED FORCES RESERVES ARE ENTITLED TO THE COMPENSATION, INCLUDING OVERTIME, THEY WOULD HAVE RECEIVED HAD THEY HAD BEEN ORDERED TO ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING.

THE HONORABLE RON MARLENEE:

THIS IS IN RESPONSE TO YOUR LETTER OF APRIL 3, 1987, ASKING THAT THE GENERAL ACCOUNTING OFFICE REVIEW CORRESPONDENCE FROM MR. PHILLIP NEIMEYER IN WHICH HE COMPLAINS THAT THE DEPARTMENT OF THE AIR FORCE HAS MANIPULATED HIS WORK SCHEDULE IN ORDER TO DEFEAT HIS ENTITLEMENT TO OVERTIME COMPENSATION. SPECIFICALLY, MR. NEIMEYER COMPLAINS OF THE PRACTICE BY WHICH MALMSTROM AIR FORCE BASE EMPLOYEES HAVE BEEN REASSIGNED FROM WORK SCHEDULES INVOLVING REGULARLY SCHEDULED OVERTIME DUTIES TO REGULAR 40-HOUR WORK SCHEDULES WHEN THEY ARE CALLED TO DUTY ENTITLING THEM TO MILITARY LEAVE AS RESERVE MEMBERS OF THE ARMED FORCES.

MILITARY LEAVE IS AUTHORIZED BY 5 U.S.C. SEC. 6323 FOR RESERVE MEMBERS OF THE ARMED FORCES WHO ARE ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING. DESCRIBED IN THAT SECTION, A MEMBER OF THE RESERVE PERFORMING SUCH DUTY IS ENTITLED TO "LEAVE WITHOUT LOSS IN PAY, TIME OR PERFORMANCE OR EFFICIENCY RATING." UNDER THIS PROVISION, WE HAVE HELD THAT AN EMPLOYEE IS ENTITLED TO THE SAME COMPENSATION, INCLUDING OVERTIME, HE WOULD HAVE RECEIVED HAD HE RENDERED SERVICE IN HIS CIVILIAN POSITION ON THE DAYS HE WAS REQUIRED TO BE ABSENT ON MILITARY LEAVE. 49 COMP.GEN. 233 (1969). IN DISCUSSING THE STANDARD TO BE APPLIED IN DETERMINING AN EMPLOYEE'S OVERTIME ENTITLEMENT UNDER SECTION 6323 WE HAVE HELD THAT THE OVERTIME WORK MUST HAVE BEEN REGULARLY SCHEDULED AND THAT THE EMPLOYEE MUST HAVE BEEN REQUIRED TO PERFORM THE OVERTIME DURING THE PERIOD INVOLVED, BUT FOR HIS MILITARY LEAVE. LEWIS E. KEITH, JR., B-159835, MARCH 11, 1976. THIS STANDARD APPLIES REGARDLESS OF WHETHER THE OVERTIME IS COMPENSABLE UNDER THE PROVISIONS OF TITLE 5 OF THE U.S.C. OR UNDER THE FAIR LABOR STANDARDS ACT. DAVID L. GIPSON, B-208831, APRIL 15, 1983.

WE ARE ENCLOSING A COPY OF OUR DECISION RECONSIDERATION OF HOWARD L. YOUNG, B-202864, SEPTEMBER 2, 1983, WHICH ADDRESSES THE REQUISITES TO OVERTIME ENTITLEMENT UNDER 5 U.S.C. SEC. 6323. AS INDICATED IN THAT DECISION, THE REQUIREMENT THAT THE OVERTIME WORK HAVE BEEN "REGULARLY SCHEDULED" MAY BE DISTINCT FROM THE REQUIREMENT THAT THE EMPLOYEE HAVE BEEN REQUIRED TO WORK THE OVERTIME IN QUESTION. THE CORRESPONDENCE FORWARDED WITH YOUR LETTER INDICATES THAT IN THE PAST MALMSTROM AIR FORCE BASE OFFICIALS HAVE DENIED OVERTIME COMPENSATION TO EMPLOYEES ON MILITARY LEAVE BASED ON A PRACTICE OF RESCHEDULING THE EMPLOYEE'S WORK ASSIGNMENT AND THUS ON THE BASIS THAT THE PARTICULAR EMPLOYEE WAS NOT REGULARLY SCHEDULED TO PERFORM THE OVERTIME DUTY IN QUESTION. DENIAL OF OVERTIME ON THIS BASIS DOES NOT APPEAR TO COMPORT WITH THE ENCLOSED DECISION, WHICH RECOGNIZES THAT 5 U.S.C. SEC. 6323 GUARANTEES AN EMPLOYEE THE SAME COMPENSATION HE OTHERWISE WOULD HAVE RECEIVED HAD HE NOT BEEN ON MILITARY LEAVE.

IN ADDRESSING THE ISSUES RAISED BY MR. NEIMEYER, WE INQUIRED INTO THE STATUS OF THIS MATTER AT MALMSTROM AIR FORCE BASE. WE LEARNED THAT THE DIRECTORATE OF CIVILIAN PERSONNEL, HEADQUARTERS U.S. AIR FORCE, HAS DETERMINED THAT THE REASSIGNMENTS OF WHICH MR. NEIMEYER COMPLAINS WERE IMPROPER AND THAT MALMSTROM AIR FORCE BASE HAD BEEN ADVISED TO CORRECT ITS PROCEDURES. THIS DETERMINATION IS REFLECTED IN THE ENCLOSED COPY OF THE AIR FORCE MEMORANDUM DATED APRIL 6, 1987.

UNDER THE PARTICULAR CIRCUMSTANCES, MR. NEIMEYER MAY WISH TO FILE A CLAIM WITH THE DEPARTMENT OF THE AIR FORCE FOR OVERTIME COMPENSATION HE HAS BEEN DENIED AS A RESULT OF THE RESCHEDULING PRACTICES DISCUSSED ABOVE. HIS CLAIM SHOULD BE SUBSTANTIATED BY ORDERS ISSUED BY HIS RESERVE UNIT AND BY EVIDENCE OF HIS CIVILIAN WORK ASSIGNMENTS BEFORE AND AFTER MILITARY LEAVE. BECAUSE THERE IS A 6-YEAR STATUTE OF LIMITATIONS APPLICABLE TO OVERTIME CLAIMS AGAINST THE GOVERNMENT, MR. NEIMEYER MAY WISH TO RECORD HIS CLAIM WITH OUR CLAIMS GROUP. WE ARE ENCLOSING A COPY OF THE PROCEDURES AT 4 C.F.R. PART 31 UNDER WHICH AN EMPLOYEE MAY FILE A CLAIM WITH THIS OFFICE.

WE HOPE THE ABOVE INFORMATION WILL BE OF ASSISTANCE TO MR. NEIMEYER.