Administratively Uncontrollable Overtime of Agent/Examiners in the FBI Laboratory

Administratively Uncontrollable Overtime of Agent/Examiners in the FBI Laboratory

U n d e r 5 U .S .C . § 5545(c)(2), p rem ium pay on an annual basis is a u th o riz e d for “ A d m in is­ tra tiv e ly U n c o n tro lla b le O v e rtim e ” w h e re d u tie s o f position a re o f such a n a tu re that th e y can n o t be p e rfo rm e d d u rin g norm al business hours.

W h e th e r w o rk p erfo rm ed by ag en t-ex am in ers in th e F e d eral B ureau o f Inv estig atio n L a b o ra to ry is by its n a tu re su c h as to qualify th em for p rem iu m pay u n d er § 5545(c)(2) is a q u estio n o f fact.

February 22, 1980

M E M O R A N D U M O P IN IO N FO R T H E A S S IS T A N T A T T O R N E Y G E N E R A L , JU S T IC E M A N A G E M E N T D IV IS IO N

This responds to your request for our com m ents on a letter from the G eneral A ccounting Office (G A O ) to the A ttorney General concerning the applicability o f adm inistratively uncontrollable overtim e (A U O ) to agent-examiners in the Federal Bureau o f Investigation (FBI) Laboratory. As you know, it is not the function o f this Office to decide questions o f fact; hence we cannot, and indeed lack the information to, com m ent on the factual statem ents contained in the G A O letter. O ur role, there­ fore, must be limited to providing you w ith considerations governing and the tests for determ ining the applicability o f AUO. A U O is provided for in 5 U.S.C. § 5545(c)(2), pursuant to which: [t]he head o f an agency, w ith the approval o f the Office o f Personnel M anagement, may provide that— * * * * *

(2) an em ployee in a position in which the hours o f duty cannot be controlled adm inistratively, and which requires substantial am ounts o f irregular, unscheduled, overtim e duty w ith the em ployee generally being responsible for recognizing, w ithout supervision, circum stances w hich re­ quire him to remain on duty, shall receive premium pay for this duty on an annual basis instead o f premium pay provided by other provisions o f this subchapter, except for regularly scheduled overtim e, night, and Sunday duty, and for holiday duty. Premium pay under this paragraph is determ ined as an appropriate percentage, not less than

10 per centum nor more than 25 per centum, o f such part o f the rate o f basic pay for the position as does not exceed the minimum rate of basic pay for G S-10, by taking into consideration the frequency and duration o f irregular un­ scheduled overtim e duty required in the position.1

This com plicated section is derived from § 204 o f the Federal Em ­ ployees Pay Am endm ents o f 1954, 68 Stat. 1109. A ccording to the legislative history, this provision was “specifically directed at those investigators o f criminal activities whose positions meet all conditions specified" in the section. S. Rep. No. 1992, 83d Cong., 2d Sess. 8-9 (1954); see also H.R. No. 2665, 83d Cong., 2d Sess. 23 (1954). T he implementing regulations issued by the Office o f Personnel M an­ agement (OPM ), 5 C.F.R . § 550.153, are illustrative of the typical situations that § 5545(c)(2) is designed to cover: § 550.153 Bases for determ ining positions for which pre­ mium pay under § 550.151 is authorized.

(a) The requirement in § 550.151 that a position be one in which the hours o f duty cannot be controlled adminis­ tratively is inherent in the nature o f such a position. A typical example o f a position which meets this require­ ment is that of an investigator o f criminal activities whose hours o f duty are governed by what criminals do and when they do it. He is often required to perform such duties as shadowing suspects, working incognito among those under suspicion, searching for evidence, meeting informers, making arrests, and interview ing persons having knowledge of criminal or alleged criminal activi­ ties. His hours on duty and place o f w ork depend on the behavior o f the criminals o r suspected criminals and cannot be controlled administratively. In such a situation, the hours o f duty cannot be controlled by such adminis­ trative devices as hiring additional personnel; rescheduling the hours of duty (which can be done when, for example, a type o f w ork occurs primarily at certain times o f the day); or granting com pensatory time off duty to offset overtim e hours required.

1 A ccording to the opening clause o f 5 U.S.C. § 5545(c)(2), the allow ance o f A U O requires (he approval o f the O ffice o f Personnel M anagement (O PM ). M oreover, as authorized by 5 U.S.C. § 5548, O PM has issued regulations interpreting § 5545(c)(2). In these circum stances, the application o f the pertinent Jaw to the specific facts w ould appear to be prim arily w ithin the jurisdiction and responsibil­ ity o f O PM . M oreover, since O PM , o r rather its predecessor the Civil Service Commission (CSC), presumably approved the allow ance o f A U O in the FBI L aboratory, that approval w ould be entitled to the greatest respect if the w orking conditions in the FBI L aboratory are still the same as those on w hich the C SC approval o f A U O was based.

These regulations, together with a num ber o f judicial decisions inter­ preting § 5545(c)(2), e.g., Burich v. U nited States, 366 F.2d 984 (Ct. Cl. 1966), and Fox v. U nited States, 416 F. Supp. 593 (1976) (both involving United States M arshals Service),2 establish the general considerations for applying that section. T he basic consideration is that the principal test is the nature rather than the am ount o f the work. Overtim e caused by the am ount o f w ork is adm inistratively “controllable” within the meaning o f the section according to 5 C .F.R . § 550.153, supra, because it can be avoided at least theoretically by the hiring o f additional personnel. 5 C.F.R . §550.153 and Fox v. United States, supra at 595-96, 598. On the other hand, overtim e is generally uncontrollable w here the work is o f such a nature that it cannot be interrupted at the normal quitting time and resumed the next morning. A typical example o f such assignments, o f course, is the investigatory w ork referred to in the legislative history o f the 1954 A ct, in the OPM regulations,^and Fox v. United States, supra, at 597. O ther examples are w ork schedules m an­ dated by o th er agencies, e.g., the dem ands o f the courts on the M ar­ shals’ services. Id., at 595-96. L aboratory w ork may be uncontrollable w here the result is needed urgently for a trial or an investigation, or w here a test has to be brought to its conclusion and cannot be inter­ rupted. These considerations w ere expressed in the Burich case as follows: [A]s a consequence o f his regular assignments, he experi­ enced erratic and irregular periods o f overtim e work. His assignments w ere received on a daily basis, but neither the nature o f the work nor the length o f tim e required in its performance could be ascertained beforehand. T o the extent that this w ork involved overtim e, it is clear that such overtim e could perhaps be anticipated, but it could not be regulated. And thus the point o f distinction is that p la in tiff was not assigned overtime; he was assigned a task which m ight require overtime. U nder such circum stances, his ad­ ditional duty hours represented adm inistratively uncon­ trollable overtim e rather than regularly scheduled over­ time. 366 F.2d at 988 (emphasis supplied). T he critical notion inherent in all those discussions and tests is the assignment o f a task that according to its nature—and not because o f a shortage o f m anpow er—has to be com pleted w ithout regard to normal business hours.

2 O th e r cases co nstruing § 5545(c)(2) are Byrnes v. United States, 330 F.2d 986 (C t. Cl. 1964), and Fix v. United States. 368 F.2d 609 (Ct. Cl. 1966).

As indicated above, this Office is not familiar with the duties o f V agent-examiners in the FBI Laboratory. We do not consider it appro­ priate for us either to criticize or to accept the analysis o f those positions in the G A O letter. We believe, how ever, that our discussion, together with the factual data you have requested from the FBI, will assist you in preparing a reply to the GAO .

L a r r y L . S im m s Deputy Assistant Attorney General Office o f Legal Counsel