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
Merit System Audit and Compliance


08/14/2012

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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).  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 5 CFR 551.710).  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision. 

Introduction

On May 1, 2012, the U.S. Office of Personnel Management’s (OPM) Merit System Audit and Compliance received a Fair Labor Standards Act (FLSA) claim from Mr. Christopher G. Frost seeking compensation "for prior, non-exempt work conducted in the performance of official duties as a United States Probation Officer….”  The claimant states that from May 3, 2004, to December 5, 2011, he and coworkers “consistently and uniformly worked against our will either ‘voluntarily’ (yet under compulsion) for hours exceeding forty-hours per week.”  We have accepted and decided this claim under Section 4(f) of the FLSA of 1938, as amended (29 United States Code (U.S.C.) § 204(f)).

In reaching our FLSA decision, we have carefully considered all information furnished by the claimant and additional documentation provided by the agency at our request.

Jurisdiction

Under the provisions of 29 U.S.C. § 204(f), OPM is authorized to administer the FLSA “with respect to any individual employed by the United States (other than an individual employed in the Library of Congress, United States Postal Service, Postal Regulatory Commission, or the Tennessee Valley Authority).”  OPM has established an administrative claims process under 29 U.S.C. § 204(f) for adjudicating exemption status, minimum wage, and overtime pay claims and child labor complaints as provided for in 5 CFR 551.701(a).  See 5 CFR part 551, subpart G.

In determining who is an “individual employed by the United States” for purposes of 29 U.S.C.§ 204(f), 29 U.S.C. § 203 states:

(e)(1) Except as provided in paragraphs (2), (3), and (4), the term ‘‘employee’’ means any individual employed by an employer.

(2) In the case of an individual employed by a public agency, such term means—

(A) any individual employed by the Government of the United States—

(i) as a civilian in the military departments (as defined in section 102 of title 5),

(ii) in any executive agency (as defined in section 105 of such title),

(iii) in any unit of the judicial branch of the Government which has positions in the

competitive service,

(iv) in a nonappropriated fund instrumentality under the jurisdiction of the Armed

Forces,

(v) in the Library of Congress, or

(vi) the Government Printing Office;

(B) any individual employed by the United States Postal Service or the Postal Regulatory Commission.

In its May 25, 2012, email to OPM in response to our request for information necessary to determine whether the claimant was an “individual employed by the United States” as defined under 29 U.S.C. § 203(e)(2)(A)(iii) when he was employed as a U.S. Probation Officer, the claimant’s former employing agency states the claimant:

was appointed and employed in the excepted service with the United States Probation Office, Southern District of Georgia (as a Probation Officer he was appointed under the authority of 18 U.S.C. § 3602(a)).[1]  None of the positions in the unit of the judicial branch in which he was employed is (or was) in the competitive service.

Therefore, we find the claimant was not an employee for purposes of the FLSA as defined under 29 U.S.C. § 203(e)(2)(A)(iii) and thus does not fall under OPM’s administrative jurisdiction under 29 U.S.C. § 204(f).  Therefore, OPM has no jurisdiction to adjudicate this claim.

Decision

The claim is denied based on lack of jurisdiction.

 

 

 

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