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Pay & Leave Claim Decisions

Washington, DC

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

Tiffany R. Smith
Security Specialist (Personnel)
GG-080-12
U.S. Army Central Personnel Security
Clearance Facility
Department of the Army (DA)
Fort George G. Meade, Maryland
Additional monies for FLSA overtime
Denied
F-0080-12-20

Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance

05/07/2015


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).  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 (address provided in section 551.710).  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision. 

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 30, 2013, from Ms. Tiffany R. Smith.  The claimant was previously employed in a Security Specialist (Personnel), IA-080-03, position (reclassified subsequent to the claimant’s removal 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 was removed on November 30, 2011, 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 the purpose of her claim is that she “received notification that during a particular period… [she] may have been effected [sic] by an erroneously [sic] code of “Exempt,” when it should have been “Non-exempt,” that “[t]his error may have effected [sic] overtime that [she] worked during the time frame [2007-2011],” and she seeks “retroactive any monies that [she] may be entitled too [sic] due to this error.” 

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 backpay entitlement.  The claimant did not indicate or provide documentation showing she had filed a claim with DA.  OPM received the claimant’s request on October 17, 2013, and 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 10, 2007, to September 27, 2008, and the GG-080-12 position (PD# ST92136) she occupied from September 28, 2008, to November 30, 2011, 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 2007 through 2011 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.  Although the claimant does not allege her agency committed a willful violation, 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 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.

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.

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.  

The claim is time barred

The claimant’s request concerns overtime pay from 2007 to 2011.  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 claimant is potentially due FLSA overtime back pay and interest from DA for the period October 17, 2011, to November 30, 2011.  However, payroll records provided by DA show the claimant did not work any overtime during that period of time.  Therefore, the claim is denied.


[1] The distribution to GG/GS-080 nonsupervisory employees is gleaned from the September 11, 2013, HRO email sending the September 10, 2013, memorandum to those employees.

 

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