FUBAR: GSA’S TOWER OF BABEL
According to the Bible, when God saw all the people of earth uniting under one language and how powerful that would make them, God spoke these words, “let us go down, and there confound their language, that they may not understand one another’s speech.” (Genesis, 11-7) None of us FEDSMILL.com scribes can figure out why the Almighty wanted to screw up the good thing those folks had going, but we are quite sure that the GSA folks who write the Federal Travel Regs (FTRs) live to confound those of us working hard to build something.
The FTRs largely involve the travel reimbursement rules, and there are only four different locations in any travel problem. There is 1- the employee’s home, 2- the employee’s federally provided office, 3- the surrounding geographic area in which he/she works, and 4- locations in that area or outside of it to which the employee travels to perform work. So, you would think that GSA, and its reviewing body the Civilian Board of Contract Appeals (CBCA), would have given each a single specific label. But no, they have chosen to confound the language so that practitioners cannot talk clearly about solving problems.
For example, 41 CFR 300-3.1 lays out the definition of key terms used in the FTR and the only term it bothers to define that could possibly apply to any of the four locations listed above is “Official station.”
An area defined by the agency that includes the location where the employee regularly performs his or her duties or an invitational traveler’s home or regular place of business (see § 301-1.2 ). The area may be a mileage radius around a particular point, a geographic boundary, or any other definite domain, provided no part of the area is more than 50 miles from where the employee regularly performs his or her duties or from an invitational traveler’s home or regular place of business. If the employee’s work involves recurring travel or varies on a recurring basis, the location where the work activities of the employee’s position of record are based is considered the regular place of work. (41 CFR 300)
Who defines something as an area that could be around anyone of three different locations? How does one draw a radius from a boundary or circumference rather than a single point? Why use the phrase “from where the employee regularly performs his duties” if you are not going to give us a formal definition of that too? Is it measured in total time spent, frequency of visits, importance of work done? The same can be said about the phrase “location where the work activities of the employee’s position of record are based.” And, why use these two different phrases to define what seems to be the same location? We could go on, but you get the point.
But that is only the beginning of GSA’s word fun. Just a few paragraphs above the FTR definition of “official station” GSA uses the phrase “permanent duty station” when defining Immediate Family. That raises the question of whether that is where the “employee regularly performs his duties,” or “where the work activities of the employee’s position are based?” If they all mean the same thing, why did not GSA use the same phrase all the time rather than showing off its thesaurus skills? Sloppy or sadistic?
But as bad as GSA’s FTRs are, the CBCA has only made it worse. A quick check of their decisions shows the use of such phrases as “traditional work site (Sanford),” “official work station (Cheskes),” “place where he normally starts his workday (Cheskes),” “location where the employee expects to spend the greater part of his day (Deleo),” “place of business (Sherry),” “place of regularly scheduled duty (DIA Employee),” “regular place of work,” “employee’s office (Fenton) ,” and “duty point (Delgado).” In 1989 the Comptroller General added the phrases “regular place of work” and ”alternate duty point” to the vernacular in Motte & Wilbourn Of course, not one is defined in any regulation nor even case precedent. Each seems to be merely the words that came to the mind of some decision-writer when thinking about location concepts.
Moving on from what apparently are a dozen or so words or phrases that seem to refer the same thing, GSA continued its fun with words by officially defining the phrase “temporary duty location” in 41 CFR 300. It is a “place, away from the employee’s official station, where the employee is authorized to travel.” Of course, true to form CBCA has also used the phrase “places of temporary duty (Gallardo).”
And even that place where we most often sleep, meet family members, change socks, and watch TV is not identified with just one term. 41 CFR 300 refers to it as the “home” in 15 places and “residence” in another five places. Isn’t there an old saying about poor people have homes while the rich have residences? Do you think that is why GSA saw a need to use two different terms, e.g.,the GS folks versus the SES members?
By this time you are probably feeling a developing thought working its way through your synapses about why doesn’t GSA just use the OPM crafted terms found in 5 CFR? That would be a great idea except for the fact that OPM does not use consistent terminology either. In one place (5 CFR 531.602) it uses the phrase “Official duty station,” which is defined as:
(j) Official duty station. An agency may prescribe a mileage radius of not greaterthan 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 under paragraph (g) of this section except that—
(1) An agency’s definition of an employee’s official duty station for determining overtime pay for travel may not be smaller than the definition of “official station and post of duty” under the Federal Travel Regulation issued by the General Services Administration (41 CFR 300–3.1); and
(2) Travel from home to work and vice versa is not hours of work. When an employee travels directly from home to a temporary duty location outside the limits of his or her official duty station, the time the employee would have spent in normal home to work travel shall be deducted from hours of work. 5 CFR 550.112(j)
However, elsewhere at 5 CFR 550.1403 Official duty station means the geographic area surrounding an employee’s regular work site that is the same as the area designated by the employing agency for the purpose of determining whether travel time is compensable for the purpose of determining overtime pay, consistent with the regulations in 5 CFR 550.112(j) and 551.422(d).
But in another regulation (5 CFR 531.602) OPM uses the “official work site” phrase which it defines as “the official location of an employee’s position of record as determined under §531.605.” And .605 states, “the official worksite is the location of an employee’s position of record where the employee regularly performs his or her duties. . . If the employee’s work involves recurring travel or the employee’s work location varies on a recurring basis, the official worksite is the location where the work activities of the employee’s position of record are based, as determined by the employing agency, subject to the requirement that the official worksite must be in a locality pay area in which the employee regularly performs work.”
Not surprisingly, no attempt is made anywhere to define the phrase “regular work site” found in 5 CFR 1402.
And don’t even get us started on what various courts have done with this terminology.
The bottom line is that when practitioners get together to figure out when mileage should be paid or travel time compensated it is a modern day Tower of Babel thanks primarily to GSA. The bible is loaded with major figures coming from nowhere to accomplish great things. Hopefully, some union lawyer will look over this mess and lead us practitioners out of this FUBAR quagmire through a federal District Court–stopping on ly to ask the court to declare the so-called GSA Federal Travel Regs to be arbitrary, capricious and void. If GSA wishes to avoid that it should act promptly to focus on just the four locations listed at the outset of this article, apply a label to each, define that label, and then restrict all further discussions or statements to the use of those four labels.
With the advent of telework, hoteling, and other new location concepts this field is only going to get more complicated. We need a solid base from which to proceed lest the babel continue.