Travel time can count as overtime

During my federal career, I often wondered why I was not paid overtime when traveling on government business during nonbusiness hours. A recent case submitted to the Federal Labor Relations Authority (FLRA) for arbitration sheds some light on this issue.

The FLRA recently adjudicated a dispute (54 FLRA No. 132 0-AR-3034) between the Navy Underseas Warfare Center, a research and development laboratory that is responsible for testing and certifying certain software and hardware systems that the Navy purchases from Lockheed Martin Corp., and the National Association of Government Employees (NAGE). By contract, Lockheed Martin "makes available its testing facilities to the Navy and determines when its testing facilities are available."

The center and the union agreed that the Navy had attempted to control the scheduling of tests, but Lockheed Martin refused to schedule tests when the Navy wanted them run because Lockheed Martin did not want to disrupt the work schedule of its employees.

The particular dispute concerned an electrical engineer employed by the naval laboratory in Newport, R.I. His regularly scheduled hours were 9:00 a.m. to 5:30 p.m., Monday through Friday. One Friday, the employee traveled to the Lockheed Martin facility in Syracuse, N.Y., to perform a test on some software and hardware systems purchased by the Navy. Lockheed Martin scheduled the test on Saturday from 6:00 a.m. to 6:00 p.m., which was a convenient time for Lockheed Martin, but not for the Navy. The employee helped conduct the test and returned home Sunday morning.

The employee asked for overtime pay for the return leg of his trip. The Navy refused to pay the employee overtime pay, and the NAGE filed a grievance. The parties could not come to an agreement, and the matter was submitted to arbitration. An arbitrator saw the dispute in simple terms: Was the employee entitled, under federal statutes and regulations, to overtime pay for time spent traveling between Syracuse and Newport on Sunday? If he is, what is the appropriate remedy?

The arbitrator said the grievance was governed by section 5542(b) of the U.S. Code, which, according to the arbitrator, is an exception to the general rule that time spent traveling away from an employee's official-duty station does not entitle the employee to overtime pay. The section of the U.S. Code entitled "Overtime rates; computation," provides that overtime may not be paid for time that an employee spends in travel status unless the travel "results from an event which could not be scheduled or controlled administratively by the agency, including travel by an employee to such an event and the return of such employee from such event to his or her official-duty station."

Under this exception, time spent in travel status "does constitute hours of employment" if the travel results from an event that could not be scheduled or controlled administratively by the Navy. From the arbitrator's perspective, the crucial question was: Could the test at Lockheed Martin have been administratively controlled by the Navy or not?

The arbitrator rejected the Navy's argument that it had administrative control over the tests necessitating the employee's travel. According to the arbitrator, "The record offered no information that the Navy ever had control of Lockheed's testing schedule."

The only control the Navy exerted was to enter into the contract with Lockheed. The arbitrator also rejected the Navy's argument that it retained control over when the employee traveled to and from the test. The arbitrator ruled that once it is found that the event is outside the Navy's control, travel to and from the event that occurs outside normal duty hours is considered to be part of the employee's work hours, for which an employee is paid.

The arbitrator sustained the grievance, determining that the employee was entitled to overtime pay for the time he spent in travel status from Syracuse to Newport. The Arbitrator directed the Navy to pay the employee overtime.

This prompted the Navy to file an appeal with the FLRA. The Navy contested the decision on three grounds. First, the Navy maintained that the award was not based on facts. According to the Navy, the arbitrator's findings - "that the employee was required to be present" at the test and "that the travel to the test was at the complete disposition of the contractor" - were inconsistent with the evidence presented. The Navy contended evidence indicated the "travel was ordered and controlled by the Navy" and therefore, the award was not based on the facts.

Second, the Navy claimed that the award was inconsistent with applicable laws and regulations. The Navy asserted the test was not the reason for the employee's travel. Rather, the Navy claimed that its "decision to send Bill to witness the test prompted the travel" and, therefore, overtime was not authorized.

Third, the Navy said previous pay decisions of this type are explicit and well-defined by authority, comptroller general and federal court precedent "that to allow this decision to stand . . . would be a clear violation of public policy."

The NAGE argued that the arbitrator clearly understood the issue before her, applied the appropriate test and considered the relevant case law.

The FLRA found that to establish that an award is not based on facts, the appealing party must demonstrate that the central facts underlying the award are clearly erroneous, and a different result would have been reached by the arbitrator if the facts were applied. The FLRA ruled that the Navy had not satisfied this requirement.

As to whether the decision was in accordance with applicable law and regulation, the Comptroller General had previously ruled that it is OK to authorize overtime pay for an employee on travel duty if the travel results from an event that could not be scheduled or controlled administratively and an immediate official requirement concerning the event requires travel outside the employee's regular duty hours.

The FLRA decided that both conditions were met in this case. The Navy could not schedule the test, only Lockheed could, and the test had to be conducted.

The FLRA also disposed of the Navy's third argument, concluding that the arbitrator's award was not contrary to public policy. This case taught me two things: The Navy is cheap, and if you travel during off-duty hours, ask for overtime pay and cite this case. You'll probably get it.

--Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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