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 March 18, 2015, the U.S. Office of Personnel Management’s (OPM) Merit System Accountability and Compliance received a Fair Labor Standards Act (FLSA) claim dated March 11, 2015, from [claimant].  The claimant is 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.  All affected employees were transferred to CAF from their corresponding positions at the DoD components effective December 16, 2012.  The claimant states that she was previously employed with DA prior to her transfer to 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 claimant states she “should have been coded as [FLSA] “NONEXEMPT” from March 2009 through March 2012 concerning overtime pay,” and is “requesting that an audit be completed on [her] overtime pay for the period March 2009 through March 2012, [her] records properly updated and [her] overtime pay for this period retroactively paid.” 

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 did not indicate or provide documentation showing she had filed a claim with DA, and states that because she has not received copies of her requested Leave and Earnings Statements from her servicing human resources office, she has “been unable to file a claim.”  OPM received the claimant’s request on March 18, 2015, and this date is appropriate for preserving the claim period.

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.”  The claimant does not allege DA committed a willful violation.  However, we address this issue below in order to establish the claim period.

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.  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.  OPM had requested the agency review the FLSA exemption status of the GG-080-11 and GG-080-12 positions in connection with our request for an administrative report on the claims filed by a number of similarly situated employees.  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 March 18, 2015, it is subject to a two-year statute of limitations commencing on March 18, 2013, and any time prior to that date falls outside 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 March 2009 through March 2012.  The record shows the claimant preserved her claim with OPM on March 18, 2015.  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., March 18, 2013, and the claim is consequently time barred.   

Decision

The claim is time barred and must be denied.

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