Date: June 18, 2003 

Claimant: [name] 

File Number: F-0470-11-01 (originally issued as 03-F0001) 

OPM Contact: Deborah Y. McKissick 

On July 12, 2002, the Center forMerit Systems Compliance, formerly the Merit Systems 
Oversight and Effectiveness, of the U.S. Office of Personnel Management (OPM) received a 
Fair Labor Standards Act (FLSA) claim from [name]. The claimant worked in the Natural 
Resources Conservation Service (NRCS) as an Area Soil Scientist, GS-0470-11. The 
claimant is requesting compensation for time worked outside of his scheduled tour of duty 
for the period from November 12, 1997 to March 8, 1998. For the reasons discussed herein, 
the claim is denied. 

We initially accepted the claim under provisions of the Fair Labor Standards Act, section 
4(f) of title 29, United States Code (U.S.C.). The FLSA exemption status of the Area Soil 
Scientist, GS-0470-11, position was classified as exempt. However, the record shows that 
the claimant does not dispute the agency’s designation of his position as exempt from the 
FLSA or the duties and responsibilities as described in his position description. Therefore, 
the claim must be decided as a Title 5 compensation claim, and not an FLSA claim. Section 
178.105 of Title 5, Code of Federal Regulations (CFR), specifies that claims are settled on 
the basis of the written record, and the claimant has the burden of establishing the burden of 
proving his or her right to payment. 

The claimant believes he is due pay for overtime worked during the claim period because his 
supervisor was aware of the extra hours that he had worked. The claimant states that he 
worked over 150 hours beyond his scheduled tour of duty to meet the established deadline 
on the National Resources Inventory project. 

The agency administrative report states that the claimant’s overtime payment request was 
denied because his position was FLSA exempt. The claimant and the agency agree that the 
claimant was not directed by his supervisor to work overtime. 

The claimant has the burden of proving that he or she actually worked overtime that was 
officially ordered or approved, or actively induced by an agency official with authority to 
order or approve overtime work. Jim L. Hudson, supra. Under Section 5542(a) of title 5, 
United States Code (5 U.S.C.), overtime may be paid for work officially ordered or 
approved. The documents presented by the claimant do not include official documentation 


showing that the additional hours performed outside of the claimant’s scheduled work hours 
were ordered and approved by authorized officials during the claim period. 

Accordingly, to be entitled to overtime pay or compensatory time in lieu of such pay, the 
overtime must be ordered or approved by an authorized official. OPM Decision #S004070 
(January 19, 2000); United States Information Agency – Compensatory Time, B-251636 
(June 11, 1993); Richard R. Bourbeau, B-238987 (September 7, 1990), affirmed, 71 Comp. 
Gen. 432 (1992); John W. Wright, B-236750 (November 7, 1989); Jim L. Hudson, B-182180 
(January 6, 1982); Donald W. Plaskett, B-183916 (March 8, 1976); Garrett F. Masco, B-
179908 (December 20, 1973). Mere knowledge that an employee is working beyond his 
normal duty hours, without active inducement of the employee to perform the additional 
work, is not enough to support payment in the absence of an official order or approval for 
overtime work to be performed. John W. Wright, supra; 68 Comp. Gen. 385 (1989); Jim L. 
Hudson, supra; Donald W. Plaskett, supra.; Garrett F. Masco, supra. Indeed, it is not 
sufficient that an employing agency tacitly expected that overtime work be performed. Jim 
L. Hudson, supra. 

OPM does not conduct adversary hearings, but settles claims on the basis of the evidence 
submitted by the claimant and the written record submitted by the government agency 
involved in the claim. 5 CFR 178.105; Matter of John B. Tucker, B-215346, March 29, 
1985. Moreover, the burden of proof is on the claimant to prove the liability of the 
government and his or her right to payment. 5 CFR 178.105; Matter of Jones and Short, 
B-205282, June 15, 1982. Thus, where the written record presents an irreconcilable dispute 
of fact between a government agency and an individual claimant, the factual dispute is 
settled in favor of the agency, absent clear and convincing evidence to the contrary. 5 CFR 
178.105; Matter of Staff Sergeant Eugene K. Krampotich, B-249027, November 5, 1992; 
Matter of Elias S. Frey, B-208911, March 6, 1984; Matter of Charles F. Callis, B-205118, 
March 8, 1982. We are required to settle claims only in accordance with the applicable laws 
and regulations, and we cannot waive or modify their provisions in individual cases. Based 
on our review of the documents submitted by the claimant, we conclude that the claimant 
has not established that the additional hours worked by the claimant during the claim period 
were ordered or approved consistent with the agency’s regulations for doing so. 
Accordingly, we must uphold the decision of the agency to not compensate the claimant for 
the claimed hours of overtime. Therefore, this claim is denied. 

This settlement is final. No further administrative review is available within OPM. Nothing 
in this settlement limits the claimant’s right to bring an action in an appropriate United 
States Court. 


Distribution 

Mr. Harley Noe 

5740 North Applebrook Way 

Boise, ID 83713 

Ms. Karen W. Karlinchak 

Director, Human Resources 

Management Division 

Natural Resources Conservation Service 

P.O. Box 2890 

Washington, D.C. 20013