Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
Sometimes I am required to travel outside my normal duty hours to perform work at different base that may require the travel to start at 4:30 AM and return to my place of duty after 5PM. This isn’t on TDY but must be done in order to meet the contractors at the site they are working so I can provide COR over site. I have been told that all travel outside my normal duty day must be claimed as travel comp time and I can’t claim comp time earned because the work was done away from my regular office. As I understand the regulations on travel comp it is to be claimed when on official travel to a temporary duty station or waiting for a connecting flight. This appears to me as a TDY duty not within the normal work day. I think I should be able to claim comp time earned or overtime depending on if I am covered under FLSA or not. Is this correct?
A:
Per the Federal Workforce Flexibility Act of 2004 (the “Act”), federal employees, when traveling away from their official duty station, may be entitled to compensatory time off for travel outside of regular working hours between an employee’s home and a temporary duty station outside the limits of an employee’s official duty station. See 5 U.S.C. § 5550b; see also 5 C.F.R. § 550.1404(c). In order for your travel to qualify as a TDY (and for you to gain compensatory time for travel to/from a temporary duty station), one must travel outside their “official duty station.” Your “official duty station,” however, is not limited to just your actual work site. Instead, one’s “official duty station” is a reasonable geographic area surrounding the work site, as designated by the Agency. 5 C.F.R. § 550.1403. When designating the geographic area surrounding an employee’s regular work site that shall constitute an employee’s “official duty station,” the agency “may prescribe a mileage radius of not greater than 50 miles to determine whether an employee’s travel is within or outside the limits of the employee’s official duty station for determining entitlement to overtime pay for travel.” 5 C.F.R. § 550.112(j). As such, the Agency is authorized to determine, in its discretion, the geographic region that shall consist of an employee’s official duty station, so long as that geographic region does not exceed a 50 mile radius of the location of the employee’s permanent duty station. Thus, for your travel to qualify as a TDY, you must travel beyond the geographical area designated as your “official duty station.”
An employee on a TDY is only entitled to compensatory time off “for time in a travel status away from the employee’s official duty station when the travel time is not otherwise compensable.” 5 C.F.R. § 55.1401 (emphasis added); see 5 C.F.R. § 550.1403 (“Compensable refers to periods of time that are credible as hours of work for the purpose of determining a specific pay entitlement, even when that work time may not actually generate additional compensation because of applicable pay limitations”). In your case, your travel may be compensable. Pursuant to 5 U.S.C. § 5542(b)(2) and 5 C.F.R. § 550.112(g), official travel away from one’s duty station is considered hours of work, if: the travel occurs within the regularly scheduled work week; or if the travel includes the performance of work while traveling, is incident to travel that involves the performance of work while traveling, is carried out under arduous or dangerous conditions, or results from an event that could not be scheduled or controlled administratively by any individual or agency in the Government. Based on the limited facts you provided, it is possible that your travel may be compensable as hour of work, as your travel to other bases to meet with contractors may qualify as travel that “results from an event which could not be scheduled or controlled administratively [by the Government].” 5 C.F.R. § 550.112(g)(2)(iv).
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