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 October 7, 2013, from Ms. Elaine M. Ferrara.  The claimant was previously employed in a Security Specialist (Personnel), IA-080-03, position (reclassified subsequent to the claimant’s retirement as Security Specialist (Personnel), GG-080-12) in the Adjudications Division, U.S. Army Central Personnel Security Clearance Facility, DA, at Fort George G. Meade, Maryland.  This organization was absorbed by the Consolidated Adjudications Facility (CAF), Department of Defense (DoD), at Fort George G. Meade, Maryland, when 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 record shows the claimant retired on January 2, 2010, prior to the establishment of CAF. 

Information provided by the claimant includes a memorandum dated September 10, 2013, distributed by CAF’s servicing human resources office (HRO) to employees in nonsupervisory GG/GS-080 positions at grades 13[1] and below.  This memorandum indicated the HRO had determined their positions were erroneously coded as FLSA exempt, advised 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 record does not show how or when the claimant came into possession of this memorandum.

The claimant states her “SF-50 dated 14 July 2002, changed [her] status from Non-exempt to the Fair Labor Standards Act (FLSA) to Exempt to FLSA” and asserts the September 10, 2013, memorandum “disclosed that [she] should never have been termed “Exempt”.”  She asserts she worked “thousands of hours of both mandatory and voluntary overtime and have not been compensated at the correct pay rate of time and one half.”  The claimant states she is “seeking back payment (the half time) for all of the overtime hours for which [she] was not paid the time and one half rate.” 

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).  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.  The claimant states she is filing her claim “directly with OPM.”  OPM received the claimant’s request on October 17, 2013, and this date is appropriate for preserving the claim period.

The claim is time barred

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.” 

The claimant’s request concerns overtime pay from July 14, 2002, until her retirement from the Federal service on January 2, 2010.  The record shows the claimant preserved her claim with OPM on October 17, 2013. Assuming, arguendo, the agency willfully violated the FLSA, the claimant would be eligible for back pay three years prior to that date; i.e., October 17, 2010, and the claim is consequently time barred.   

Decision

The claim is time barred and must be denied.

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