Plum Island Animal Disease Center

Decision Date02 October 1984
Docket NumberB-213179
PartiesPLUM ISLAND ANIMAL DISEASE CENTER - SLEEP AND MEAL PERIODS UNDER FAIR LABOR STANDARDS ACT
CourtComptroller General of the United States

Fair labor standards act - general accounting office - jurisdiction digest: 1. Since the office of personnel management (OPM) is authorized to administer the fair labor standards act (FLSA) with respect to most federal employees great weight will be accorded to omp's administrative determinations as to entitlements under the act. However since OPM was not given authority to settle or adjudicate claims arising under the FLSA, the general accounting office retains jurisdiction to finally decide the propriety of payment on such claims. Compensation - overtime - fair labor standards act - sleep time 2. Between February 2 and February 12, 1977, employees worked 24-hour shifts because of adverse weather conditions. The office of personnel management (OPM) determined that the shifts consisted entirely of "on duty" time qualifying for overtime compensation under the fair labor standards act, but that 8 hours of sleep and mealtime must be deducted from each shift. We hold that the employees are entitled to compensation for sleep and mealtime for the 10-day period in question because, at the time the employees' claims accrued, there were no OPM regulations or instructions providing a basis for deduction of sleep and meal time from irregular or occasional overtime hours worked.

The American federation of government employees, local 1940 (AFGE), on behalf of 56 former and current employees of the plum island animal disease center, science and education administration, U.S. Department of agriculture [1] appeals our claims group settlement denying the employees' claims for overtime compensation for the period February 2 to February 12, 1977, under the fair labor standards act (FLSA), 29 U.S.C. Sec. 201 et seq. (1982). Specifically, the union challenges our claims group's determination that the department of agriculture properly deducted 8 hours of sleep and mealtime from each 24-hour shift worked by the employees. For the reasons stated below we reverse our claims groups's determination and hold that the employees are entitled to overtime pay for sleep and mealtime.

Background

The plum island animal disease center is located on an island off the northeastern end of long island, new York. Normally, the department of agriculture provides a ferry service which transports employees to and from the island before and after their schedule shifts. Most of the affected employees work rotating 8-hour shifts commencing at 8 a.M., 4 p.M., and 12 midnight; others work only the daytime shift (8 A.M. To 4:30 p.M.).

During the period February 2 to February 12, 1977, the department of agriculture was unable to provide regular ferry service because of heavy concentrations of ice surrounding plum island. In order to maintain the operations of the center the agency placed the employees on 24-hour tours of duty (24 hours on and 24 hours off), transporting two crews to the island and picking up two crews by boat or helicopter each day. During this 24-hour tour of duty on the island, each crew was scheduled to work for 12 hours and to be relieved from duty for 12 hours.

The agency paid the employees for the hours they worked, PLUS the hours not worked but which were included in their employees for the 12 hour relief periods allowed during each 24-hour shift.

The AFGE filed a complaint with the New York regional office of the civil service commission, now the office of personnel management, [2] contending that the employees were entitled to overtime compensation under the FLSA for the 12-hour periods during which they were relieved from duty.[3] after investigating the employees' claims, the New York regional office issued a compliance order in October 1978 to the department of agriculture finding that the employees were "engaged to wait" during the 12-hour relief periods, and that such waiting time was compensable as hours of work under the FLSA. However, the New York regional office further determined that the agency could deduct up to 8 hours of sleep and mealtime from each 24-hour shift, even though the shifts consisted entirely of "on-duty" time. As the basis for this conclusion, it cited federal personnel manual (FPM) letter 551-14, May 15, 1978, which contained instruction for applying the FLSA to employees who receive annual premium pay for regularly scheduled standby duty in accordance with the provisions of 5 U.S.C. Sec. 5545(c)(1). Those instructions provided that time spent in a standby status for purposes of 5 U.S.C. Sec. 5545(c)(1) constitutes hours of work under the FLSA, and that 8 hours of sleep and mealtime May be deducted from tours of duty of 24 hours or more.

The New York regional office recognized that FPM letter 551-14 expressly applied only to those employees who received annual premium pay for regularly scheduled standby duty under 5 U.S.C. Sec. 5545(c)(1), and that the plum island employees did not regularly perform standby duty and were paid overtime on an hourly basis under 5 U.S.C. Sec. 5542.[4]nevertheless, the office concluded that the situation involved in this case was "similar" to that addressed by FPM letter 551-14, warranting the deduction of 8 hours of sleep and mealtime from the 12 hours during which the employees were relieved from duty but "engaged to wait."

The department of agriculture, in compliance with the order, paid the employees for 4 of the 12 hours during which they were relieved from duty. The employees, represented by AFGE, filed claims with our claims group requesting compensation under the FLSA for the remaining 8 hours. The union contended that, at the time the employees' claims accrued, there was no guidance specifically authorizing the deduction of sleep and mealtime from 24-hour shifts worked by employees who are subject to the overtime provisions of 5 U.S.C. Sec. 5542. Further, the union maintained that the order's reliance on FPM letter 551-14 was erroneous since that guidance, by its own terms, applied only to employees in receipt of annual premium pay.

The AFGE argued that, in the absence of OPM guidance concerning this particular issue, the employees' claims should be resolved in accordance with policy issued by the department of labor (DOL), the agency responsible for administering the FLSA with respect to employees in the private sector. See 29 U.S.C. Sec. 204(a)-(e). The relevant DOL policy, set forth in 29 C.F.R. Sec. 785.22, provides that sleeptime May not be deducted from tours of duty of 24 hours or more unless such a deduction is agreed upon by the employer and employee.

Our claims group obtained a report from opm's office of pay and benefits policy, and, on the basis of that report, denied the employees' claims by settlement dated July 8, 1983.

Opm's position

The OPM concurs with the determination of its New York regional office that 8 hours of sleep and mealtime May be deducted from hours worked by the employees on the basis of FPM letter 551-14, May 15, 1978. The relevant part of that guidance provides as follows:

"Subject: instructions for applying the fair labor standards act (FLSA) to federal employees in receipt of annual premium pay (OTHER than those employees engaged in fire protection or law enforcement activities)
"1. Regularly scheduled standby duty. Under the FLSA an employee is either on duty or off duty. The act does not recognize a semiduty status such as standby duty. Therefore, it is necessary to determine whether standby duty time under section 5545(c)(1) of title 5, united states code, is working time for purposes of the flsa.
"A. Standby duty performed at an employee's regular duty station or in quarters provided by an agency which are not the employee's ordinary living quarters. For purposes of the FLSA an employee who is confined to an agency's premises or so close thereto that the employee cannot use the time effectively for his or her own purposes is working while on standby duty. Consequently, time spent by an employee in a standby duty status under 5 C.F.R. 550.143(b)(1) or (2) is compensable as hours of work under the flsa.
"3. Allowable deductions of meal and sleep periods from 'hours of work.' an agency May exclude bona fide meal periods during the employee's regularly scheduled workday. An employee in receipt of annual premium pay for standby duty who is on duty for 24 hours or more receives basic pay PLUS annual premium pay for this tour of duty arrangement. Such a tour of duty typically consists of productive work, standby duty, and eating and sleeping periods. Provided an employee has a bona fide sleep period an agency May exclude up to 8 hours of sleep time from such a tour of duty.

The OPM states that the primary objective of the above-quoted instructions was to establish that time spent in a standby status for purposes of 5 U.S.C. Sec. 5545(c)(1) constitutes hours of work under the FLSA. See FPM letter 551-14, paragraph 1. After establishing this principle, the instructions provide in paragraph 3 that an agency May exclude up to 8 hours of sleep and mealtime from hours worked. In opm's view, the provisions in paragraph 1 characterizing standby time as hours of work apply only to employees in receipt of annual premium pay: paragraph 3, authorizing the deduction of sleep and mealtime from hours of work, applies to all employees, whether they are entitled to premium pay on an annual basis under 5 U.S.C. Sec. 5545(c)(1) or overtime pay on an hourly basis under 5 U.S.C. Sec. 5542(a).

The OPM states that its construction of paragraph 3 of FPM letter 551-14 is consistent with the "two-thirds" rule for computing overtime pay under 5 U.S.C. Sec. 5542. Under that rule, 8 hours of...

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