Washington, D.C.
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Washington, D.C.
Kimberly A. Steide, DPA
Principal Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance
07/02/2025
Date
The claimant was formerly employed as a Supervisory Veterans Service Representative, GS-0996-14, with the Veterans Benefits Administration (hereafter, “VBA” or “agency”) in Washington, DC.1 He requests compensation for work he was allegedly assigned and performed beginning on January 25, 2024, and extending through February 29, 2024. The U.S. Office of Personnel Management (OPM) received the claim on March 26, 2024, and the agency administrative report (AAR) on September 11, 2024. For the reasons discussed herein, the claim is denied.
Preliminary Issue
As an initial matter, the claim reads “[A]n FLSA Claim Filed to OPM.” However, the claimant’s attempt to file this claim under the provisions of the Fair Labor Standards Act (FLSA) is misplaced. The FLSA is a labor law that provides minimum wage and overtime protections to employees who are FLSA nonexempt. Although OPM adjudicates FLSA claims from covered Federal employees under the provisions of section 551.705 of title 5, Code of Federal Regulations (CFR), the issues presented here do not involve minimum wage or overtime pay. Instead, the claimant seeks compensation at his former rate of basic pay for work he asserts he was assigned and performed between January 25, 2024, and February 29, 2024.
Unlike the FLSA, under section 3702 of title 31, United States Code (U.S.C.), OPM adjudicates pay claims brought by employees who seek to challenge pay decisions made by their employing agency. OPMs claims jurisdiction under 31 U.S.C. 3702, is limited to consideration of statutory and regulatory liability in determining if monies are owed for the stated compensation. Based on the information provided, 31 U.S.C. 3702 is the proper authority to settle this claim under, not the FLSA.
Background
In December 2022, the agency posted a vacancy announcement for a Supervisory Veterans Service Representative, GS-0996-14, position in St. Petersburg, Florida. The announcement stated that the position was not remote and that it was eligible for telework as determined by agency policy. The claimant, who worked remotely from his home in Pennsylvania at the time, applied and was selected for the position. The Standard Form (SF) 50 effecting the claimant’s reassignment to the position of Supervisory Veterans Service Representative, GS-0996-14, indicated that he would be duty stationed in Florida.
On April 27, 2023, the claimant signed a service agreement accepting transfer within the agency from Washington, D.C. to his new duty station located in Saint Petersburg, Florida. He was scheduled to physically report to St. Petersburg, Florida on September 18, 2023. However, the agency agreed to extend the claimant’s scheduled report in-person date to January 2, 2024, because he had a family health issue. On December 19, 2023, the claimant’s supervisor notified the claimant that he was not authorized to telework outside the St. Petersburg commuting area after January 2, 2024. On December 22, 2023, the claimant submitted a Telework Request/Agreement as a reasonable accommodation (RA) that identified his duty station as the agency’s St. Petersburg office and requested to telework every day except the second Tuesday and Wednesday in each pay period. However, the claimant’s supervisor instructed him to report to the office in-person on January 19, 2024, and that he needed to report to the office one day per week, instead of the two days per pay period the claimant requested.
On January 22, 2024, the claimant’s supervisor notified the claimant that he had failed to provide an updated telework agreement or report in-person to the office as directed. The supervisor also informed the claimant that because he had not submitted an updated telework agreement, he was not authorized to telework and that he would be considered absent without leave (AWOL) any day he failed to report in-person and was not on approved leave.
On January 24, 2024, the claimant submitted an updated RA request to the agency requesting to work remotely full time from a location outside of Florida. He stated that reporting into the office was against his doctor’s orders. The agency denied his request for full-time remote work. However, as an accommodation, the claimant’s supervisor granted the claimant a flexible schedule, allowing the claimant to flex his schedule throughout the business day 6:00am to 6:00pm. The claimant’s supervisor also granted flexible leave, which allowed the claimant flexibility to the maximum extent possible, including as workload needs dictate, to utilize his accrued leave if he needed to take time off to help manage his limitations.
The claimant asserts that even though he was ordered to work from home full time by his medical provider, beginning on February 8, 2024, and extending beyond 14 consecutive days, the agency coded him as AWOL. He challenges the agency’s decision to code him as AWOL and asserts he was working 40 hours per pay period and the agency failed to pay him without providing notice. Specifically, he asserts:
Starting January 25, 2024, through the date of this claim (February 29, 2024) I have intentionally not been compensated for work activities, work product, and time in fulfilling my duties. I have been assigned work activities daily and have completed them. I have attended meetings and participated. Colleagues have assigned me tasks and I have completed them. Direct reports are asking for guidance and decisions and I am providing them. The agency is benefitting and using my work product but not paying me for it. I have not been placed on suspension or terminated. I have not been specifically told to cease work.
Legal standard
As it relates to the claimant’s work schedule, in the context of Federal government employment, an agency generally has the right to assign an employee’s work schedule. The rule formulated under 5 CFR 610.121(b)(1), provides that “The head of an agency shall schedule the work of his or her employees to accomplish the mission. The head of an agency shall schedule an employee’s regularly scheduled administrative workweek so that it corresponds with the employee’s actual work requirements.” This language demonstrates that the assignment of a work schedule is a right reserved to agency management. This means agency management determines who will perform the work, when the work will be performed, and where the work will be performed.
As it relates to the claimant’s telework request, the federal telework policy, as mandated by the Telework Enhancement Act of 2010, requires Executive agencies to establish policies allowing eligible employees to telework. The law established in section 6502(b)(2)(A) of title 5, United States Code (U.S.C.) provides that participation in an agency telework plan requires “a written agreement that is entered into between an agency manager and an employee authorized to telework, that outlines the specific work arrangement that is agreed to.”
Conclusion
The record shows on December 19, 2023, the claimant’s supervisor notified the claimant that he was not authorized to telework outside the St. Petersburg commuting area after January 2, 2024. Furthermore, on January 19, 2024, the claimant’s supervisor reminded the claimant that his telework agreement had expired and that he was not authorized to telework without an agreement.
Under 5 CFR 178.105, the burden is upon the claimant to establish the liability of the United States and his right to payment. After carefully reviewing the record, we conclude the claimant has not met this burden. The information provided by the claimant does not sufficiently establish that he was in an approved work status during the claim period or that he is entitled to compensation for work allegedly performed. The claimant’s reliance on the January 24, 2024, RA request, even under doctor’s orders, is inoperative and without effect. First, the claims jurisdiction of OPM under 5 U.S.C. 3702(a)(2) is limited to consideration of statutory and regulatory liability in determining if monies are owed for the stated compensation or leave claims. OPM has no authority under 31 U.S.C. 3702 to review an agency’s RA policies or authorize payment based solely on consideration of equity. The agency has the discretion to offer reasonable and effective accommodations, and the claimant is not entitled to the accommodation of his choice. Second, the agency established an in-person work schedule that acknowledged the claimant’s health care provider recommendations while simultaneously offering an effective alternative RA. However, even after being notified that he was required to report to the office, the claimant failed to comply with the established work schedule.
The claimant has therefore failed to establish a right to payment as required by 5 CFR 178.105, and the 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.
1. The record indicates the claimant was terminated effective April 22, 2024.