OPINION AND ORDER
This is а class action against the United States on behalf of current and former Department of Justice attorneys who seek overtime pay under the Federal Employees Pay Act, 5 U.S.C. §§ 5542, 5543, and 5545(e)(2) (FEPA).
The crucial phrase “ordered or approved,” as currently construed by the courts, encompasses the members of this Class in the circumstances presented. Attorneys are expected to work overtime and they do so on a regular basis. They are induced to work overtime by direct supervisors, if not authorized officials as defendant would define them. The overtime that they work is well known at the highest levels of the Justice Department. The Department recognizes that it could not function properly within its budget constraints without officially induced and approved overtime work by government attorneys.
The Department of Justice has “ordered or approved” overtime for members of the Class, for purposes of the Federal Employees Pay Act. Class members are entitled to overtime pay if they can meet the standards of proof required by law.
I. BACKGROUND
This class action lawsuit involves more than 10,000 attorneys from Department of Justice divisions across the nation.
Defendant argues that the purpose of the Federal Employees Pay Act is to compensate employees for official extensions of their workday or workweek. The Act is not intended to compensate employees for all hours of job-related activity in which they decide to engage. Plaintiffs are not entitled to premium pay for extra hours unless an authorized official establishes a workday in excess of eight hours or a workweek in excess of forty hours. In this case, no authorized official assigned extra duty hours to any members of the Class. No authorized official directed plaintiffs to perform duties during the period before or after their eight-hour day or forty-hour week. No authorized official expressly approved the performance of extra hours of work by plaintiffs.
Plaintiffs counter that overtime is necessary because of the demanding nature of their responsibilities. They maintain that work cannot be done to professional standards without overtime. They are entitled to premium pay when they devote extra hours to work-related activities.
Members of this Class are covered by premium pay provisions of the Federal Employees Pay Act unless they are paid at the level of GS-15, step 10 or higher. 5 U.S.C. § 5547.
In summary, the Agency must pay overtime to an employee at level GS-10 and below unless the employee requests compensatory time in lieu. An employee above GS-10 is not necessarily entitled to overtime pay
The Federal Employees Pay Act states that employees mil be paid overtime “for full-time, and part-time and intermittent tours of duty, hours of work officially ordered or approved in excess of forty hours in an administrative workweek, or ... in excess of eight hours in a day ____” 5 U.S.C. § 5542(a). The key to this case is the meaning of the phrase “ordered or approved” as used above and as applied to the Class.
II. ARGUMENTS
A. Plaintiffs
The parties agree that the facts necessary to this opinion are not in dispute, and that the case is appropriate for summary disposition on liability. While the facts are not complex, their application to the meaning of “ordered or approved” as used in the Federal Employees Pay Act is. No case has addressed circumstances in which litigating attorneys for the Government seek overtime. Case law on the meaning of FEPA and similar laws that provide premium pay for government employees often involve law enforcement officers whоse schedules are both unpredictable and uncontrollable. Those cases are not closely on point, but some are instructive.
Plaintiffs urge the court to consider issues relating to the historic application of the phrase “ordered or approved” in light of several important facts. These are the deposition testimony of former Assistant Attorney General Stephen R. Colgate, who agreed that division heads at the Department of Justice “expect” attorneys to work overtime; the fact that the Department of Justice keeps track of actual hours that its attorneys work, including overtime hours, for administrative purposes and to assess attorneys’ fees; that full knowledge and approval of overtime worked has been imputed to management through a task force known as the Working Group; and that the Justice Department’s employment manual for attorneys provides them blanket direction to work overtime as necessary.
Assistant Attorney General Colgate testified that he did expect that attorneys would work overtime, and that he approved of that policy. He stated that any employee who thought that he or she was working overtime with DOJ approval would have been reasonable in making such an assumption. Plaintiffs believe that the effect of Mr. Colgate’s testimony is that DOJ has issued a standing order (“expectation”) through its authorized official, for attorneys to work overtime.
Some offices in the Department of Justice that are represented in the Class are required to keep detailed overtime records for each attorney, in addition to regular time cards showing forty-hour workweeks. These offices account for approximately eighty-five percent of the attorneys in the Class. Plaintiffs have referred to these recоrds as a “second set of books” or “double bookkeeping.” They establish both authority and approval, according to plaintiffs, and they prove how much time attorneys actually worked. The overtime records are used for budgetary purposes and to assess attorneys’ fees against opposing parties when statutes permit.
Plaintiffs believe that the United States Attorneys Manual confirms a Class-wide policy of requiring (ordering or approving) overtime by officially authorized individuals. The Manual is evidence of a systemic policy that permeates the Department of Justice, they argue, and a statement in the Manual that purports to advise employees that they will
The Working Group was assembled by Assistant Attorney General Colgate in 1994 to address the problem that plaintiffs bring before the court now. Officials at the Justice Department knew that attorneys were working overtime, and they needed the overtime to complete DOJ’s mission within budgetary constraints. They did not want the Government to pay the costs associated with overtime work, according to plaintiffs. The Group’s report was circulated at the highest levels of the Justice Department, and presented to the Attorney General. The Report recommended that the Department seek legislation from Congress exempting attorneys from eligibility for overtime.
B. Defendant
Defendant emphasizes the traditional requirement in this court that only government officials acting with authority may bind or obligate the United States, in this case only by direct order or approval. No member of the Class has ever requested overtime as required by the statute, defendant notes. Plaintiffs must show a directive to work overtime for a specific period. Cases allowing overtime pay find such specific directives, or perhaps coercion.
Defendant asserts that former Assistant Attorney General Colgate’s testimony concerning his “expectation” that attorneys will do what is necessary to get the job done is not an order to work overtime. It cannot serve as a “standing order” for attorneys to work оvertime or a “blanket approval” of such overtime. When plaintiffs performed extra hours of work, it was generally because of their dedication and professionalism. They made independent judgments based on applicable external deadlines, the time that they anticipated their tasks would take, and the importance of other tasks to be accom- ■ plished during the same time.
“Plaintiffs have never requested overtime pay for any extra hours that they spend,” defendant notes. Cases finding liability for overtime usually include policy directives such as “it is expected that you mil perform without extra compensation .... ” See, e.g., Byrnes v. United States,163 Ct.Cl. 167 , 171,330 F.2d 986 (1963) (emphasis added). This directive should be compared with the DOJ Attorneys’ Manual, which states that attorneys “should expect to work in excess of regular hours without overtime premium pay.” (emphasis added).
According to the Manual, “Assistant United States Attorneys are professionals and should expect to work in excess of regular hours without overtime premium pay.”
Assistant Attorney General Colgate testified, “I guess my view was that attorneys were there to perform the assignments that they were given. I don’t know if I would use the term that they were ‘induced’ to [work] overtime. It was more a notion of a professional who was to ... perform the necessary efforts to ensure an adequate effort on the assignment given to him.”
Defendant disputes the notion that its case management records are a “second set of books.” The Department has accounting systems for different purposes. The records track efforts of attorneys irrespective of whether their work was ordered or approved. They are not used for compensation. Authorized officials do not see individual records, but only a compilation. The compilation is рresented in summary reports for statistical purposes. At most, the records inform management that plaintiffs were working extra hours.
C. “Ordered or Approved”
The crucial issue remains, what does “ordered or approved” mean in this context. Defendant argues that only a direct command, regulation, or other official action by an authorized person can qualify an employee for overtime pay. According to plaintiffs, the phrase “ordered or approved” means only that the overtime ultimately must be attributable to an authorized person, directly or by implication.
1.
Plaintiffs argue that case law has found “order or approval” from official encouragement, expectation, or inducement, before or after the fact, in writing or orally, by authorized officials or by individuals acting in accordance with their wishes. An express or formal order is not required. This court has stated that “[ojvertime work performed with the knowledge and inducement of supervisory personnel is deemed to be ‘officially ordered or approved.’” Manning v. United States,
The Government maintains that claims for overtime must be “actually authorized or approved by an appropriate government official,” citing Gaines v. United States,
2.
The Fedеral Employees Pay Act clearly requires an explicit order of overtime for employees to receive overtime pay, according to defendant. One need only compare its requirements with the more well-known Fair Labor Standards Act. 29 U.S.C. §§ 201-219. The Fair Labor Standards Act limits the employ of a worker for longer than forty hours per week without overtime pay. 29 U.S.C. § 207(a)(1). “Employ” as defined in the statute, “includes to suffer or permit to work.” 29 U.S.C. § 203(g). Thus, an employee need not demonstrate that he was directed or ordered to work overtime, but only that his supervisor was aware that he worked extra hours and did not stop him from doing so. See, e.g., Forrester v. Roth’s IGA Foodliner Inc.,
This is the standard used in the private sector and by some government agencies. Congress did not use the “suffered or permitted” language in the Federal Employees Pay Act, and defendant argues that the language of FEPA was an attempt by Congress to establish more strict standards for employees of the type in this Class.
No plaintiff in the Class has requested overtime, and it follows that no authorized official could have ordered or approved it. If an expectation exists within the Department of Justice that its employees will work a certain number of overtime hours for free, this is a management problem that must be addressed as such, not as a class action lawsuit under the pay statutes.
Defendant contends that work not officially ordered or approved would not be compensable under FEPA even if it were “suffered and permitted.” Only “hours of work officially ordered or approved” are compensable under FEPA. Defendant’s argument on this
III. DEVELOPMENT OF THE CASE LAW
A discussion of the law begins with this observation from the dissenting opinion in Anderson v. United States,
Defendant’s argument that plaintiffs must establish specific directions from authorized officials to work overtime is normal procedure in other areas of litigation involving claims against the United States. Most causes of action against the Sovereign require clear direction from an authorized official. For example, this court routinely hears government contract cases in which the dis-positive issue is whether an authorized official issued the order or direction upon which a contractor relied. A mere expectation normally would not be equated with an order or direction in a contract case.
A written directive or order to perform overtime work would satisfy the statutory requirement of FEPA under any interpretation. The question in this case is whether less than explicit orders or approvals suffice. For example, plaintiffs argue that the existence of a “culture” within an agency in which employees spend all the time necessary to get the work done; a “climate” in which long hours are expected either because of the employee’s business or profession or because of the nature of work; an “expectation” from top management that employees will work overtime to complete their jobs properly; or an “assumption” that such work will be necessary, may establish “order or approval” for purposes of the statute.
Until Anderson v. United States,
A. Strict Interpretation Pre-Anderson
The court in Post v. United States,
Plaintiffs in Tabbutt v. United States,
The court awarded overtime pay to Customs Inspectors in Anderson v. United States,
A Customs regulation provided that written authorization was necessary for employees to qualify for overtime, and no such authority had been granted, but the court held that such a requirement was not in the statute and declined to enforce it. Id. at 370. The withholding of written orders “reflected observance of the letter of the regulation but denial of the substance of the statute.” Id. at 371.
The authorized official in Anderson advised employees that overtime would not be compensated, as the Manual does here. Id. at 385. Also, employees submitted time records showing that they worked no more than eight hours per day. A second set of records showing the number of hours actually worked was used for efficiency ratings and to make recommendations for promotion. Id. at 392. The court adopted the following finding of fact:
The fair conclusion from the record as a wholе is that the plaintiffs were induced to perform the overtime by the district superintendents and their subordinate officers, and that in providing such inducement the district superintendents acted under the leadership and upon the specific suggestion of the Commissioner of Customs.
Anderson,
Gray v. United States,
Aviles v. United States,
In Albright v. United States,
Tacit expectation is not equivalent to the statutory requirement of official order or approval. The plaintiffs not only have the burden of proving that they were ordered to appear 20 minutes before the shift start*412 ed, [but] also that the order was issued by one having the authority to do so.
Id. at 361.
Adams v. United States,
Sixty-five investigators for the Alcohol and Tobacco Tax Division sought overtime compensation under the Federal Employees Pay Act in Byrnes v. United States,
The investigators in Byrnes had not qualified for premium pay until a 1954 amendment to FEPA authorized it for them. Federal Employees Pay Act Amendments of 1954 (68 Stat. 1109, 5 U.S.C. § 911 (1958)). Internal Revenue Service granted coverage under the new law for employees in all of its regions, then arbitrarily withdrew authority for premium pay in two of them. (The court later described this arbitrary decision on the part of IRS as a reason for its ruling in favor of the Byrnes employees. Rapp v. United States,
Officials told employees in Byrnes that they were expected to “perform without extra compensation any overtime that may be necessary to make good cases and achieve effective results____” Byrnes,
Byrnes finds approval in the acquiescence of authorized officials, and perhaps even in the lack of disapproval. The court ruled that “plaintiffs’ overtime work was performed with the full knowledge, encouragement and inducement of [IRS] officials, as well as the officials in the National Office.” Byrnes,
[t]he Regional and National Offices ... regularly received periodic reports of the overtime work by all investigators in the regions during the period involved in this litigation, and either approved or acquiesced therein. These reports were prepared on the basis of regular daily reports by the investigators, including all hours of overtime and an explanation thereof to their supervisors who were primarily responsible for appraisal of essential over*413 time .... There is no evidence of any official disapproval of these overtime reports during the period involved in this case.
Byrnes,
Rapp v. United States,
Plaintiffs were not only ‘induced’ to perform duty officer tours but were given reasonable and understandable grounds for fearing that they might jeopardize their positions if they did not do so. In other words, plaintiffs worked under circumstances that amounted to duress and coercion. Work performed under such circumstances is no more ‘voluntary1 than a statement or confession in a criminal case which is extracted by threats or promises on the part of a law enforcement or prosecuting officer.
Rapp,
The court in Bilello v. United States,
Plaintiffs quote Bates v. United States,
Plaintiffs in Anderson v. United States,
A civilian employee working for the Navy recorded his overtime on time cards and turned them in to the proper authority in Manning v. United States,
Plaintiffs in DeCosta v. United States,
Hannon v. United States,
IY. DISCUSSION
Stephen R. Colgate was Assistant Attorney General for Administration, in charge of Department of Justice personnel. Mr. Colgate was not aware that he had the authority to approve overtime, and in fact, he thought that it was Justice Department policy not to compensate attorneys for overtime. His understanding of the “culture” of the Department was that attorneys were expected to work overtime when necessary to complete their tasks. He thought it unlikely that attorneys could accomplish their tasks within forty-hour workweeks. Mr. Colgate knew that attorneys were asked to maintain records of hours in excess of eight hours a day and forty hours per week; his department purchased the software that many offices used to keep track of actual hours that they worked. He confirmed that the Department knew that its attorneys were working overtime, that it expected them to work overtime, and that it approved of their working overtime. As a matter of policy, however, the Department did not to pay its attorneys for the overtime that they worked.
Mr. Colgate’s deposition essentially confirms that high-level officials at the Department of Justice who had the authority to order or approve overtime knew that its attorneys were working overtime. The general view of the culture within the Department of Justice was that attorneys were expected to do what was necessary to represent the interests of the United States .properly. This included working additional hours beyond the forty-hour workweek.
Not having had knowledge of his own authority to approve overtime, Mr. Colgate did not know that he had delegated such authority to Ms. Schiffer for attorneys in the Environmental Division of the Justice Department, or to Ms. DiBattiste for United States Attorneys’ offices. The same was true in the case of the Assistant Attorney General in charge of the Civil Division and the Assistant Attorney General in charge of the Civil Rights Division, whose authority for those components also had been delegated from Mr. Colgate.
The parties agree that former Assistant Attorney General Colgate was the only person who had authority to order or approve overtime for the entire Class. He acknowledged that he knew of no Division within the Department of Justice in which management had found it possible for attorneys to complete their work within a forty-hour workweek.
Deputy Assistant Attorney General John C. Vail was in charge of the Justice Management Division. He had been unaware of the Justice Department Attorneys’ Manual but viewed it as being inconsistent with Title 5. Plaintiffs’ counsel has represented that Mr. Vail considered the Manual’s requirements to be “tantamount” to an order to work overtime. Mr. Vail could not identify a difference between an expectation that attorneys work overtime and an express order to work overtime, according to plaintiffs.
The Attorney General and the Deputy Attorney General asked Mr. Colgate to set up the “Working Group” described in the parties’ arguments, above. Mr. Colgate directed Mr. Vail to organize thе Group in 1994. Mr. Vail brought together representatives from all components of the Department of Justice, and they met for a period of several months to discuss complaints that the Attorney General had heard from attorneys at town meetings concerning hours and working conditions.
The Working Group concluded that attorneys were working many additional hours that were not being compensated, and that
Mr. Colgate and Mr. Vail reported these findings to the Attorney General. They explained to her that attorneys were working an average of five to nine additional hours per week, and that ordered, approved, or induced overtime should be compensated. They suggested legislation that would exempt Justice Department attorneys from overtime compensation. The Attorney General agreed and sent the proposal to the Office of Management and Budget. OMB objected to prоviding such an exemption, and no further action was taken.
The Department maintains two systems to track hours that attorneys work. One record shows that all attorneys work eight hours per day, forty hours per week. The other set includes detailed records of the hours that they actually worked. The latter time sheets are used for management and budgeting purposes, according to defendant, but they also are used to rank offices and to bill time for attorneys’ fees and costs.
Authorized officials have no knowledge of individual hours worked because these records are seen only in compilation, defendant argues. The records track attorneys’ efforts irrespective of whether their work was ordered or approved. They are not used for compensation. No one evaluated them to determine whether the time that was recorded was appropriate, or whether it was ordered or approved. These records apply only to certain divisions and offices, and they do not show what attorneys were doing, or why they wеre doing it after hours.
The records show substantial overtime among government attorneys, however, regardless of their intent or purpose. Justice Department officials at the highest levels knew of their existence and content. Attorneys in the Class have stated that overtime was an absolute requirement of their jobs and that management expected it. They understood that the records were used in then-performance evaluations and for awards and promotions. Keeping track of their overtime in the second set of records was “a constant focus.”
Attorneys handled their cases with professional judgment under deadlines that largely were self-imposed. Defendant argues that this element of their responsibilities precludes overtime for attorneys. Whether attorneys should qualify for overtime pay under the Federal Employees Pay Act is an issue that is not before us. Attorneys in this Class are subject to FEPA, аnd for whatever reason Congress has not exempted them from overtime compensation; nor have they been made subject to other premium pay systems such as AUO.
Prior cases have considered the nature of an employee’s work as a factor in determining inducement. See, e.g., Adams v. United States,
It is true that lawyers are not required to be at the office all the time, but they are required to complete their assignments however long they may take.
Defendant argues that this would be a “tacit expectation” if anything, and does not satisfy even the most liberal standards of “ordered or approved.” Plaintiffs in Albright,
Defendant argues that the Manual does not establish inducement, but merely advises attorneys what they should expect.
Defendant complains that a judgment here would result in damages being paid retroactively to attorneys who did not ask for overtime pay when it was performed, and therefore did not give the Government the opportunity to make other arrangements. It is essentially an attempt by attorneys to raise their own salaries unilaterally, after the fact.
The Justice Department Manual states, “United States Attorneys are NOT authorized to approve overtime premium pay for attorney personnel. Assistant United States Attorneys are professionals and should expect to work in excess of regular hours without оvertime premium pay.” The Government now argues that this section of the Manual advises prospective employees that they will not be paid overtime, and that this language prevents overtime from ever being “ordered or approved.” This language from the Manual could mean that the Justice Department does not pay overtime, so attorneys should not work overtime; or that overtime is common and expected in this business but the Department does not pay overtime, so do not ask for it. In any event, agencies may not exempt themselves from the law by the simple expedient of issuing a policy stating that it will not pay overtime.
Defendant argues most persuasively that a system of paying litigating attorneys overtime would affect their professionalism adversely.
The Department wanted to promote professionalism because treating lawyers professionally, rather than as hourly workers, is consistent with the way attorneys see themselves. Ordering and approving overtime work would be inconsistent with and harmful to this professional atmosphere because ordering overtime requires direction concerning when, where, and for how long work is performed. That type of direction detracts from an attorney’s autonomy, discretion, and control of his or her work product. It is this level of control possessed by individual attorneys which makes the Department so attractive to its highly qualified lawyers in the first place.
We agree entirely with this statement and commend it. For the purposes of this litigation, however, it is irrelevant. Attorneys in the Class are covered by the Federal Employees Pay Act and they are entitled to overtime if they meet its requirements.
Y. SUMMARY JUDGMENT STANDARDS
Factual issues necessary for the court to make a ruling on liability are not in dispute. Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” RCFC 56(c); See Anderson v. Liberty Lobby, Inc.,
Cross-motions for summary judgment are no more than claims by each party that it alone is entitled to summary judgment. This does not establish that if one is rejected the other necessarily is justified. B.F. Goodrich Co. v. U.S. Filter Corp.,
We have taken these standards into consideration and determined that trial is not needed to rule on liability. As noted elsewhere herein, trial on damages would be necessary if the parties cannot reach an agreement. “When [an employee] is acting outside his formally assigned hours, and is claiming pay for so acting, he has the burden of showing that what he does is worth doing, and is reasonably calculated to promote the end for which he is employed.” Anderson v. United States,
VI. CONCLUSION
Overtime is an important management concern. The authority to “order оr approve” overtime should be vested in officials who are reasonably available to employees who may be subject to it.
Plaintiffs’ motion for summary judgment on liability is GRANTED. Defendant’s cross motion is DENIED. Counsel will contact the court within thirty days to recommend further proceedings.
Notes
. Additional information may be found in earlier published opinions at Doe v. United States,
. Section 5545(c)(2) states:
The head of an agency, with the approval of the Office of Personnel Management, may provide that—
an employee in a position in which the hours of duty cannot be controlled administratively, and which requires substantial amounts of irregular, unscheduled overtime duty with the employee generally being responsible for recognizing, without supervision, circumstances which require the employee to remain on duty, shall receive premium pay for this duty on an annual basis instead of premium pay provided by other provisions of this sub-chapter, except for regularly scheduled overtime, night, and Sunday duty, and for holiday duty.
We held that this section does not apply to the Class because "[t]he discretion to determine whether an employee will be provided premium pay under this section rests with the head of the Agency, with the approval of the' Office of Personnel Management. Both agencies must exercise discretion in deciding whether an employee is entitled to AUO pay pursuant to this statute.” Doe v. United States,46 Fed.Cl. 399 , 401 (2000).
“The Attorney General issued DOJ Order 1551.4A” in response to this authority, but did not include “Attorney” on the list. Id.
. An August 27, 1999 Order stated, "the issues in this case must be litigated as a class action in the interest of justice. Certification is appropriate
. 5 U.S.C. § 5547 Limitation on premium pay
(a) An employee may be paid premium pay ... only to the extent that the payment does not cause the aggregate of basic pay and such premium pay for any pay period for such employee to exceed ... —
(1) the maximum rate of basic pay payable for GS-15 ....
. 5 U.S.C. § 5542 Overtime rates; computation
(a) For full-time, part-time and intermittent tours of duty, hours of work officially ordered or approved in excess of 40 hours in an administrative workweek, or ... in excess of 8 hours in a day, performed by an employee are overtime work and shall be paid for ... at the following rates:
(1) For an employee whose basic pay is at a rate which does not exceed the minimum rate of basic pay for GS-10 ... the overtime hourly rate of pay is an amount equal to one and one-half times the hourly rate of basic pay of the employee, and all that amount is premium pay.
(2) For an employee whose bаsic pay is at a rate which exceeds the minimum rate of basic pay for GS-10 ... the overtime hourly rate of pay is an amount equal to one and one-half times the hourly rate of the minimum rate of basic pay for GS-10 ... and all that amount is premium pay.
. 5 U.S.C. § 5543 Compensatory time off
(a) The head of an agency may—
(1) on request of an employee, grant the employee compensatory time off from his scheduled tour of duty instead of payment under section 5542 ... for an equal amount of time spent in irregular or occasional overtime work; and
(2) provide that an employee whose rate of basic pay is in excess of the maximum rate of basic pay for GS-10 ... shall be granted compensatory time off from his scheduled tour of duty equal to the amount of time spent in irregular or occasional overtime work instead of being paid for that work under section 5542 of this title.
. Defendant argues that these cases should be limited to those involved in law enforcement. The cases do not suggest that such a limitation is appropriate, however.
. By its terms, the Manual seems to apply only to United States Attorneys and thеir offices, and possibly to attorneys in other offices who prosecute cases enforcing the laws of the United States. This was not an important argument in the briefs or during a number hearings on this case, however. The Manual is evidence of a climate or culture within the Department of Justice that legally does not depend on the specific department to which it is addressed.
. After this case was filed, a United States Attorney sent a memo to her employees stating that the office “anticipate^] business as usual" but included the following directive from the Executive Office for United States Attorneys:
To control holiday premium pay, managers should consider issuing memoranda reminding employees that an upcoming holiday is supposed to be a day off with pay and that employees are not expected to report for work unless specifically ordered to do so. An employee who persists and still works on the holiday would get the holiday pay, but could also get a disciplinary action for failure to follow instructions.
She noted that “[a]pproval for holiday work shall be required in advance and may be approved by Lanny, Emily, Jim, and after June 1, Robin .... ” The authority for approval of holiday pay in this instance apparently was not at the level of Assistant Attorney General or a Division Head.
. One United States Attorney had an innovative means of encouraging overtime that would appeal to officials in Washington:
Although AUSAs have improved reporting overtime hours on their ... report, we have decided to implement a fee structure for failing to address this important issue. AUSAs currently are averaging 60 hours of overtime a month. Any AUSA failing to meet this average will be expected to pay $1.00 per hour for every hour under 60 hours of overtime a month.
. ‘'[T]he front office published comparisons of the number of overtime hours worked in our district in comparison with the other districts in the country. The reporting of overtime was a constant focus of the front office. The front office communicated a policy of keeping the number of overtime hours at a high level ... I have been orally advised that increases in stаff size relate to the reporting of overtime hours.” [Memo to Staff from a U.S. Attorney.]
. Administratively Uncontrollable Overtime. 5 U.S.C. § 5545(c)(2).
. Statement in the Manual was “absolutely a directive by the Department to me ..., that you will work more than forty hours because you're going to have to do your job correctly, we expect that of you, and you’re not going to get paid.” [Excerpt from an attorney's deposition.]
. One attorney testified that the Manual told her what the Department “expected me to do” and that "I am required to work overtime,” and that working overtime was a "requirement of the job.” [Excerpt from an attorney’s deposition.]
. Defendant’s brief states that the Manual “merely emphasizes what Assistant United States Attorneys should anticipate that they as professionals will chose to do in performing their duties, not what the Department expects or orders."
. An issue arose during oral arguments involving a hypothetical attorney who played on the computer during the day, took work home at night, then claimed overtime for it. This would be a proof of damages issue, nоt one of liability. Moreover, it would be a management concern for the Justice Department. Otherwise, attorneys who perform legitimate overtime would be denied benefits because managers failed to supervise their employees properly.
. “It may be that Congress would have been well advised to omit such employees from [FEPA] or to make some different arrangement for their compensation. But Congress did not omit them, and their superiors were not authorized to deny to them the benefits of the Act on the ground that administration of the Act would be difficult ...Anderson v. United States,
. In Adams v. United States,