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
Agency Compliance and Evaluation
Merit System Accountability and Compliance


05/07/2015

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Date

Introduction

On October 17, 2013, the U.S. Office of Personnel Management’s (OPM) Merit System Accountability and Compliance received a Fair Labor Standards Act (FLSA) claim dated September 27, 2013, from Ms. Collette F. Clemmons.  The claimant is currently employed in a Security Specialist (Personnel), GG‑080-12, position in the Adjudications Division, Consolidated Adjudications Facility (CAF), Department of Defense (DoD), at Fort George G. Meade, Maryland.  CAF was established on May 3, 2012, by consolidating the personnel security functions and resources of the individual DoD components into a single organization.  The claimant was transferred from her corresponding position at DA to CAF effective December 16, 2012. 

Information provided by the claimant includes a memorandum dated September 10, 2013, stating CAF’s servicing human resources office had determined her position was erroneously coded as FLSA exempt, advised her that CAF employees who believed they received inaccurate overtime payment based on this determination could file a claim either with the organization employing them during the claim period before their reassignment to CAF (i.e., DA) or with OPM, and that any such claim must be filed within two years of receipt of the memorandum.  The claimant's FLSA status was corrected to FLSA nonexempt by CAF on August 16, 2013, retroactive to December 16, 2012.  In a May 14, 2014, email to OPM, CAF’s servicing human resources office certified it had made the claimant whole from the beginning of her employment with CAF forward.  

The claimant states she was informed on September 11, 2013, that her “FLSA code in block 35 on [her] Standard Form 50 had been incorrectly coded as E-Exempt from June 6, 2008 when [she] was promoted to GG 11 [sic] until December 15, 2012.”  She asserts “[t]hat determination means that [she is] entitled to back pay for any overtime amassed during the period in which [she] was erroneously classified.”  She further asserts she was not notified in a timely manner of this correction because the agency was “aware as early as July 2013 and still did not send out the notification of the correction to the FLSA until September 11, 2013."  The claimant also states that in August 2007 to 2008, the U.S. Army Central Clearance Facility (CCF) for whom she worked prior to her reassignment to the CAF, “required all employees to work mandatory overtime two times a month due to the server [sic] backlog of personnel actions.”

In reaching our FLSA decision, we have carefully considered all information furnished by the claimant and DA, including the agency administrative report (AAR) which we received on April 11, 2014, and additional information we received subsequently to clarify the record from CAF.  We have accepted and decided this claim under section 4(f) of the FLSA of 1938, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).

Analysis

Period of the Claim

Section 551.702 of 5 CFR provides that all FLSA claims filed after June 30, 1994, are subject to a two-year statute of limitations (three years for willful violations).  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.  A claimant must submit a written claim to either the employing agency or to OPM in order to preserve the claim period.  The date the agency or OPM receives the claim is the date that determines the period of possible back pay entitlement. See 5 CFR 551.702(c).  Since OPM received the claimant’s request on October 17, 2013, this date is appropriate for preserving the claim period.

Applicability of the FLSA

To determine whether the claimant is owed overtime pay under the FLSA, we must first determine whether the work performed is exempt or nonexempt from the overtime pay provisions of the FLSA.  The agency included in the AAR its report of findings concluding that the claimant’s work at DA in the GG-080-11 position (PD# ST92135) she occupied from June 24, 2007, to September 27, 2008, and the GG-080-12 position (PD# ST92136) she occupied from September 28, 2008, to December 15, 2012, was nonexempt from the provisions of the FLSA.  Based on careful review of the record, we concur with the agency’s determination.  The claimant is requesting compensation for work performed from June 6, 2008, to December 15, 2012, when the record shows she was properly classified as FLSA nonexempt.  Therefore, DA would have been required to compensate the claimant under the overtime pay provisions of Subpart E of Part 551 of 5 CFR for work performed within the statute of limitations.

Willful violation

The regulations governing the filing of an administrative claim (5 CFR § 551.702(c)) also state in pertinent part:  “If a claim for back pay (emphasis added) is established, the claimant will be entitled to pay for a period of up to 2 years (3 years for a willful violation ) back from the date the claim was received.” 

Thus, the next issue normally examined in establishing the claim period is if it should be extended to three years based on if the agency’s actions met willful violation criteria.  Since the claimant questions whether a willful violation occurred, we have addressed the issue below. 

Under 5 CFR 551.104, “willful violation” is specifically defined as follows:

Willful violation means a violation in circumstances where the agency knew that its conduct was prohibited by the Act or showed reckless disregard of the requirements of the Act.  All of the facts and circumstances surrounding the violation are taken into account in determining whether a violation was willful.

Clearly, not all violations of the FLSA are willful as this term is defined in the regulations.  There is no question that DA and CAF erred in the exemption status of the claimant.  However, error alone does not reach the level of willful violation as defined in the regulations.  A finding of willful violation requires that either the agency knew its conduct was prohibited or showed reckless disregard of the requirements of the FLSA.  The regulation further instructs that the full circumstances surrounding the violation must be taken into account.

In addition to her assertions that the agency was aware of the previously described “error” in her FLSA exemption status determination “as early as July 2013,” the claimant states:

The majority of employees at Army CFF during that time [August 2007 to 2008] were grades GG/GS 11 and 12 with the average step being 5 and up, therefore I feel it was a willful violation on the part of the agency not to have our FLSA code correct in an effort to decrease the cost of paying employees the fair amount of overtime pay.  I say this because the Commander said the reason the agency did not have a night shift was because they would have to pay night differential, and that would be counter-productive to paying overtime pay due to the cost putting an increase [sic] financial burden on the agency.

It is instructive to consider how DA reacted when it discovered it had erroneously exempted the claimant from the overtime pay provisions of the FLSA.  The agency reviewed the FLSA exemption status as part of its response to our AAR request.  At the time, the agency was made aware of the result of an exemption determination decision issued by OPM on related Defense Security Service positions (OPM decision numbers F-0080-12-01 through 08, May 5, 2010).  As a result of the review, DA assembled payroll records and, in conversations with OPM, indicated it was ready to make whole the affected employees upon receipt of further guidance by OPM.

The claimant’s rationale as to why DA’s actions willfully violated the FLSA is speculative.  She has proffered no evidence to support her belief that willful violation should attach to her claim.  The Commander’s putative comments on not establishing a night shift lack probative value as night differential is not a form of overtime pay.  Rather, it is a form of premium pay (ten percent of the employee’s basic rate of pay) for regularly scheduled work performed between the hours of 6 p.m. and 6 a.m.  See 5 CFR 550.121.

With regard to CAF, that the agency took it upon itself to conduct a review of the claimant’s exemption status as part of a routine audit and made the claimant financially whole for the entirety of her employment with CAF cannot be construed that their previous error was a willful violation of the Act. 

Based on all of the above, we find the agency erred in not properly determining the claimant’s FLSA exemption status.  However, technical error alone does not rise to the level of willful violation.  We find the agency acted in good faith by making a full and adequate inquiry once their attention was focused on the issue, and they took action to resolve the matter.  In doing so, the agency did not recklessly disregard the requirements of the FLSA.  Therefore, we find the agency’s actions do not meet the criteria for willful violation as defined in 5 CFR 551.104.  Consequently, because we received the claim on October 17, 2013, it is subject to a two-year statute of limitations commencing on October 17, 2011, and any time prior to that date falls outside the claim period.  

Part of the claim is time barred

The claimant’s request concerns overtime pay dating back to June 6, 2008.  The record shows the claimant preserved her claim with OPM on October 17, 2013.  Since we find the agency did not willfully violate the FLSA, the claimant is eligible for back pay two years prior to that date; i.e., October 17, 2011, and the period of the claim prior to October 17, 2011, is time barred.   

Decision

The record shows CAF made the claimant whole and that the claimant has received appropriate FLSA overtime pay from December 16, 2012, forward.  Therefore, the claimant is due FLSA overtime back pay and interest from DA for the period October 17, 2011, to December 15, 2012.  The period of the claim prior to October 17, 2011, is time barred and must be denied.

DA must reconstruct the claimant’s pay records for the period of the claim and compute back pay for FLSA overtime pay owed and any interest on the back pay, as required under 5 CFR 550.805 and 550.806, respectively.  If the claimant believes the agency incorrectly computed the amount, she may file a new FLSA claim with this office.

 

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