Washington, DC

U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code

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Robert D. Hendler
Classification and Pay Claims
Program Manager
Center for Merit System Accountability


12/09/2008

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Date

As provided in section 551.708 of title 5, Code of Federal Regulations (CFR), this decision is binding on all administrative, certifying, payroll, disbursing, and accounting officials of agencies for which the U.S. Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA).  The agency should identify all similarly situated current and, to the extent possible, former employees, and ensure that they are treated in a manner consistent with this decision.  There is no right of further administrative appeal.  This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708.  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.

Introduction

On May 15, 2007, OPM’s Dallas Oversight and Accountability Group, formerly the Dallas Field Services Group, a component of the Center for Merit System Accountability, received an FLSA claim from Mr. Ken E. Phillips.  The claimant seeks back pay and interest for standby duty he asserts he worked from September 2, 1987, through October 20, 1990, when he was employed as a Park Ranger, GS-025-7, in Grand Canyon National Park (GCNP), Western Region, National Park Service (NPS), U. S. Department of the Interior (DOI), in Grand Canyon, Arizona.

In reaching our FLSA decision, we have carefully reviewed all information of record, including information furnished by the claimant and by his agency in its agency administrative report (AAR) which we received on June 18, 2008.

Background

In his May 10, 2007, claim request, the claimant states:

As evidenced by the original letter of denial [FLSA claim denial issued on November 18, 1992, by GCNP], I was never advised of my appeal rights at the time of the 1992 denial.  This egregious omission on the part of the park questions the procedural validity in the way in which my original claim was handled.  I feel this necessitates a thorough review of my original claim at this time.

The claimant states he submitted a written request on August 6, 2005, to GCNP to have his “original back pay claim and denial reviewed.”  He describes the series of events, culminating in a January 23, 2007, GCNP memorandum from the Acting Chief, Human Resources, finding the claim was time barred.  The memorandum states:

By previous CFR, your appeal rights, at that time, allowed for your appeal to be filed as late as six (6) years from the period to be appealed.  To include the entire claimed period you would have had to file your appeal by 9/1/1993.  Because of this, I have no statutory authority to consider your claim.

The claimant submitted a statement signed and dated June 28, 1992, identifying it as an “affidavit in support of my claim (FLSA Complaint) for back-pay, for standby duty….”  The statement further indicates:

This claim is made pursuant to the Fair Labor Standards Act (FLSA) and, if necessary, should be considered a [sic] FLSA complaint for purposes of adjudication.  Applicable regulations include but are not restricted to:  the FLSA; [sic] Title 5, several FPM Letters; [sic] and, 5 CFR 550.143.

Jurisdiction

Under the provisions of section 204(f) of title 29, United States Code (U.S.C.), OPM established an administrative claims process by issuance of Federal Personnel Manual (FPM) Letter No. 551-9, on March 30, 1976.  FPM Letter 551-9 stated:

…[A]n employee alleging an FLSA violation has a right to file a complaint directly with the Civil Service Commission [now OPM].  The law itself also establishes the right for an employee to bring action in a U.S. district court either directly or after having received the CSC decision on his/her FLSA complaint.

 FPM Letter 551-9 did not require agencies to notify employees of their right to file a complaint with the Civil Service Commission (or OPM effective January 1, 1979). 

Effective December 23, 1997, OPM promulgated regulations codifying the FLSA administrative claims process.  In relevant part, section 551.702(c) of title 5, Code of Federal Regulation (CFR)), provided, that:

A claimant …may preserve the claim period by submitting a written claim either to the agency employing the claimant during the claim period or to OPM.  The date the agency or OPM receives the claim is the date that determines the period of possible entitlement to back pay.  The claimant is responsible for proving when the claim was received by the agency or OPM.

Prior to June 30, 1994, FLSA pay claims were subject to a six-year statute of limitations.  However, all FLSA pay claims filed on or after June 30, 1994, are subject to a two-year statute of limitations (three-years for willful violations) [5 CFR 551.702(a), (b)].  A claimant who receives an unfavorable decision from the agency may file with OPM, and a claimant may request his or her agency to forward the claim to OPM on the claimant’s behalf.  5 CFR 551.705(a), (b).  The regulations do not require agencies to notify employees of their right to file a claim with OPM.

The claimant’s apparent attempt to revive his June 28, 1992, claim (denied on November 18, 1992) on August 6, 2005, under 5 CFR 551.702(a) is misplaced.  Under the administrative claims procedures in place during the period of this claim, filing a claim with the employing agency on June 28, 1992, did not preserve the claim once it had been denied.  Any entitlement to FLSA overtime pay based on the claim period ending October 20, 1990 (i.e., the period of time during which the basis of the claim occurred), expired on October 20, 1996, based on application of the six-year statute of limitations in effect for FLSA claims filed before June 30, 1994.  Therefore, any entitlement to FLSA overtime pay or minimum wages based on this claim also expired on October 20, 1996, due to the running of the six-year statute of limitations in effect during the period of the claim; and the claimant would have been required to appeal the denial before that date.  Thus, the claim is barred from our consideration and may not be allowed.  The FLSA does not merely establish administrative guidelines; it specifically prescribes the time within which a claim must be received in order to be considered on its merits.  OPM does not have any authority to disregard the provisions of the FLSA, make exceptions to its provisions, or waive the limitations it imposes.

 Decision

The claim is denied since it is time barred.

 

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