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In This Section

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

Ronnie Holmes
Equal Employment Specialist
GS-260-11
Southeastern Operations Office
Office of Resolution Management
Department of Veterans Affairs
Bay Pines, Florida
Received no overtime pay for work performed during lunch breaks, and before and after scheduled tour of duty
Denied
F-0260-11-02

Robert D. Hendler
Classification and Pay Claims
Program Manager
Merit System Audit and Compliance

03/26/2013


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 Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA).  The agency should identify all similarly situated current and, to the extent possible, former employees, ensure that they are treated in a manner consistent with this decision, and inform them in writing of their right to file an FLSA claim with the agency or OPM.  There is no further right of 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 this decision.

Introduction

The claimant asserts he worked overtime for which he should have been paid under the Fair Labor Standards Act (FLSA).  Additionally, he states his agency willfully violated the FLSA by not making his position “non-exempt” after the Office of Personnel Management (OPM) issued a decision in a previous claim making the position of an equal employment specialist who performed similar equal opportunity counseling in his agency non-exempt under the FLSA.  During the claim period, the claimant was employed as an Equal Employment Specialist, GS-260-11, at the Southeastern Operations Office (SEO), Office of Resolution Management (ORM), Department of Veterans Affairs (DVA), Bay Pines, Florida.  We have accepted and decided this claim under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).

We received the claim on September 27, 2011, and the agency’s administrative report on February 8, 2012.  In reaching our decision, we have carefully reviewed all information furnished by the claimant and his agency and conducted independent fact-finding with the claimant, who now works for the Department of Defense in Germany.  Because we were unable to interview the claimant by telephone, he responded to a written questionnaire developed by OPM concerning his claim and transmitted his replies to OPM via email.  We also conducted telephone interviews with individuals affiliated with the SEO identified by the claimant whom he believes could corroborate his claim, as well as other persons working at SEO during the claimant’s employment at that office, including the following:

Rodger Evans – Claimant’s temporarily detailed first-line supervisor during the first two months of the claim period and the first five months of the claimant’s employment

Winston Johnson – Claimant’s first-line permanent supervisor for the remaining portion of the claim period

Randall Mitchell – Claimant’s counselor team leader during the entire claim period

Kimm Lennox –Equal opportunity counselor and the claimant’s co-worker during the claim period

Kelly Schafer – Equal opportunity counselor and the claimant’s co-worker during the claim period

Karen Greene – Equal opportunity counselor and the claimant’s co-worker during the claim period

Dianna Ford – Team leader for equal opportunity investigator staff at SEO during the claim period

Deogory Harris –Equal opportunity counselor and the claimant’s co-worker for approximately two months during the claim period

Michael Michael Jr., – Equal opportunity assistant for SEO during the claim period

Troy Jackson – SEO administrative assistant during the claim period

Isabel Simmons – Investigator and subsequently Team Leader for investigators during the claim period

Nature of Claim

The claimant states he often arrived at SEO early to do work before his duty hours began, frequently worked through his 30-minute lunch breaks, and stayed at the office to perform work after duty hours during the period he was employed at SEO from July 19, 2009, to November 20, 2010.  Therefore, he requests payment for 620 hours of unpaid FLSA overtime for work performed before and after duty hours and during his regular 30-minute lunch break.  Additionally, he requests a total of 195 hours of unpaid FLSA overtime for 30 minutes of additional lunch time worked per day because he was unaware that if he did not take his two daily 15-minute work breaks, he could add that time to his lunch break in accordance with office practice.  He also requests FLSA overtime pay for four hours spent preparing additional information supporting his claim to ORM on June 17, 2011, and eight hours for time spent preparing “appeal” documents for his OPM claim on September 17 and 18, 2011.  Moreover, he requests all monies and interest that would have been gained from: (1) monthly investments into his Thrift Savings Plan (TSP); and (2) the portion of overtime pay that would have been included as part of his salary into his Federal Employee Retirement System (FERS) account during the claim period.  He requests interest on all unpaid FLSA overtime and that the DVA pay all taxes on overtime granted.  None of the overtime hours claimed are documented in official agency records.

Claim Period

Section 551.702 of title 5, Code of Federal Regulations (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 which determines the period of possible back pay entitlement.  Since the claimant originally filed an FLSA claim with DVA which was received  on May 9, 2011, the claim period would be preserved as of that date and the claim period of this claim would normally commence on May 9, 2009.  However, the claimant did not begin his employment with SEO until July 19, 2009, so the claim period for the claim begins on that date.  .  Nevertheless, the claimant believes the agency willfully violated the FLSA by not making his position non-exempt after OPM issued a decision in a previous ORM equal opportunity counselor’s claim making that claimant’s position non-exempt. 

Willful violation

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.  See 5 CFR 551.104 (1998) and (2007).  Contrary to the claimant’s assertion, the record shows that on March 9, 2011 (shortly after receiving the OPM decision noted above), ORM’s Human Resources Officer advised staff of the agency’s human resources processing center that the HR office was in the process of identifying the names of employees in like positions to the one covered by OPM’s previous FLSA claim decision (i.e., counselors) in order to make a mass change in their FLSA exemption status.  On April 1, 2011, the Associate Deputy Assistant Secretary for ORM wrote an email addressed to all ORM employees advising them that to comply with OPM’s previous claim decision, the agency was changing the FLSA designation of all counselor positions to non-exempt, and correcting the FLSA designation on their position description of record (PD #29218-A).  On June 6, 2011, the Associate Deputy Assistant Secretary sent another email to all ORM employees advising them that if they believed they were owed FLSA overtime pay, they should submit their claims to ORM’s Human Resources Officer.  However, prior to that date the claimant, although no longer employed at ORM, he had already filed a claim with the HR office for unpaid overtime under the FLSA received by the agency on May 9, 2011.  ORM accepted and adjudicated his claim and in a decision dated September 13, 2011, determined he was not entitled to overtime compensation under the FLSA.  Given the preceding information, we find the agency did not willfully violate the Act, and that after receipt of OPM’s decision in the previous claim, it took timely action to correct the FLSA designation of all equal opportunity counselor positions in accordance with OPM’s compliance instructions.  However, as discussed above, the claimant began his employment at SEO on July 19, 2009, so the period of this claim commences on that date.    

Position information

During the claim period, the claimant served as an equal opportunity counselor for the geographic area covered by the SEO office.  His primary duties included identifying the basis for the complaint and probable causes; explaining to the aggrieved person (AP) the agency’s alternative dispute resolution (ADR) program; assisting all parties in resolving the complaint at the lowest possible level including preparation of a settlement agreement if resolution was achieved; conducting in-depth fact-finding concerning the complaint including interviewing all relevant individuals and reviewing pertinent records; receiving, organizing and analyzing all information to develop the record for further processing; and explaining to the AP other available complaint processes and options depending on the nature of the issue; e.g., union grievance.  The claimant asserts that due to the demanding, highly measureable performance standards for his position, the need to regularly enter detailed, time sensitive, case-specific information into the Complaint Automated Tracking System (CATS), and to cope with the SEO’s voluminous workload and shortage of counselors, he frequently worked through his lunch period and before and after his scheduled tour of duty.  He states his supervisor was “made aware” he was performing work during those periods because the supervisor had directed the front office personnel, who also reported to him, to assign walk-in and telephonic complaints to counselors even if received during lunch periods and immediately before the end of the claimant’s scheduled tour of duty.  He also indicates his off-site team leader was “made aware” because the team leader was working under the same circumstances and was not compensated for extra work. 

Evaluation

The FLSA provides that a nonexempt employee shall not be employed for a work week in excess of 40 hours unless the employee received compensation for the excess hours at a rate not less than 1½ times the regular rate.  See 29 U.S.C. § 207(a)(1).  The FLSA defines “employ” as including “to suffer or permit to work.”  See 29 U.S.C. § 203(g).  Work is “suffered or permitted” if it is performed for the benefit of an agency, whether requested or not, provided the employee’s supervisor knows or has reason to believe the work is being performed and has an opportunity to prevent the work from being performed.  See 5 CFR 551.104. 

In the case of an FLSA claim, it is the claimant’s responsibility to provide evidence of the liability of the agency and the claimant’s right to payment.  See 5 CFR 551.706(a).  However, several Comptroller General decisions including ones concerning Christine D. Taliaferro (B-199783, March 9, 1981) and Paul Spurr (60 Comp. Gen. 354) indicate where the agency has failed to record overtime hours as required by the FLSA but the supervisor acknowledges overtime work was performed, the claimant may prevail in his or her claim for overtime compensation on the basis of evidence other than official agency records if the following two criteria are met:

(1)   the claimant shows he or she performed overtime work under the FLSA for which he or she was not paid; and

(2)   the claimant produces enough evidence to show the amount and extent of that work as a matter of reasonable inference.

If the criteria are met, the burden of proof shifts to the employing agency to show the precise amount of work performed or to rebut the employee’s evidence.  See B-208268, Jon Clifford, et al, November 16, 1982.  In the absence of official records, a list of hours worked submitted by the claimant, based on the claimant’s personal records, may be sufficient to establish the amount of hours worked in the absence of contradictory evidence presented by the agency to rebut the claimant’s evidence.  See B-208203, Matter of Frances W. Arnold, February 3, 1983; OPM Decision No. F-7404-08-01, August 22, 1996.

I.                   Work performed before and after scheduled duty hours

To decide if the claimant performed unpaid overtime work under the FLSA, we must determine whether he performed any work before or after his scheduled duty hours that was “suffered or permitted” under the Act.  Under the provisions of 5 CFR 551.104, he performed “suffered or permitted” work if:

a. he performed work, whether requested or not, before or after his scheduled duty hours;

b. his supervisor knew or had reason to believe the work was being performed; and

c. his supervisor had the opportunity to prevent the work from being performed.

1.  Did the claimant show that he performed unpaid FLSA overtime work?

The claimant asserts he performed a variety of work tasks outside his normal tour of duty including making initial contact with and interviewing the AP, documenting contact information and identifying the nature of the complaint, preparing administrative files and a variety of counseling notices, preparing and submitting counselor reports, and entering individual case information into CATS.  He states this additional work was performed to cope with a heavy SEO workload and meet counselor performance standards.  He states his supervisor was “made aware” because the supervisor had directed the front office staff to assign walk-in and telephonic complaints to counselors if received during lunch or prior to the end of their tour of duty, and that witnesses can corroborate he worked additional time.  He notes he never submitted any requests for overtime to his supervisor, and that ORM did not have a tracking or time and attendance system that could prove or validate whether he performed extra work.  

a.  Did the claimant perform work before or after his scheduled duty hours?

The claimant’s work schedule during the claim period as documented on his time and attendance records was as follows:

July 19, 2009-November 20, 2010:  Monday-Friday, 8:00 a.m.-4:30 p.m. (which included a 30-minute lunch break) 

At the time the claimant worked in the SEO, it was located at Bay Pines, Florida, in a separate building on the grounds of the Bay Pines DVA medical center.  Each of the five counselors had separate private offices located in two corridors of the building, with the office’s administrative staff located at the front of the office near the entry.  The claimant’s office was near the end of one of the corridors, close to a building exit.  Up to 17 ORM employees worked in the Bay Pines office, including equal opportunity investigators, counselors, case intake personnel, case managers, and administrative staff.  The SEO supervisor (Regional EEO Officer) occupied a private office about 30 feet away from the claimant’s office.  However, the counselor team leader who assigned and reviewed counselors’ work was out-stationed in a separate building in Lake City, Florida, approximately 180 miles north of Bay Pines. 

There were no employee sign-in/sign-out sheets used at the SEO, therefore there is no official record of the actual times the claimant arrived and departed from the work site, and there is no official agency record of him ever working overtime.  Submitted with the claim are work calendars showing the hours and FLSA overtime worked during the claim period for each week the claimant worked in the office.  The calendars were prepared by the claimant after he left SEO-ORM.  In the calendars the claimant indicates he frequently worked through his 30-minute lunch period and stayed after duty hours to perform work.  Although he provided a separate list of case numbers he worked while employed at SEO, his calendars are not linked to any of these cases so they do not show what work was actually performed during the overtime hours claimed.  In addition, while he states in his claim letter to OPM that he worked before 8:00 a.m., he does not claim any work before that time in his calendars.  We also found certain discrepancies in his calendars.  For instance, he lists working in the office all day on Federal holidays occurring on December 25, 2009, and May 31 and July 5, 2010, and claims FLSA overtime on all those days.  He also lists working in the office on February 1 and 8, 2010, but the agency’s official time and attendance records show he was granted eight hours approved annual leave for each of those days.  Moreover, his calendar does not reflect he took a total of 18 hours of approved sick leave on eleven different days between January 5 and October 27, 2010.  Instead, it indicates he was at the office working. 

Eight of the claimant’s former co-workers at SEO (who worked with him during part or all of the claim period) were interviewed and provided information relevant to his claim.  None had any knowledge of the claimant ever working before 8:00 a.m.  Of the eight, one counselor stated he saw the claimant stay after 4:30 p.m. perhaps once or twice a week to do work; e.g., completing counselor reports, answering initial complaint telephone calls, or interviewing walk-in complainants.  Another (equal opportunity assistant) stated he occasionally saw the claimant stay after 4:30 p.m. but did not know if he was working.  A third witness (administrative assistant) stated he would occasionally refer complaint phone calls or walk-ins to the claimant around 4:30 p.m. and he would handle them beyond his tour of duty.  Because this witness’ tour of duty ended at 5:30 p.m., he would sometimes see the claimant’s car in the parking lot after 4:30 p.m. but it was gone by the time the witness left at 5:30 p.m.  None of these three witnesses knew how long the claimant stayed after 4:30 p.m.  A fourth witness interviewed stated the claimant told her that sometimes when he was preparing to leave work at the end of the day, he received phone calls from complainants and would stay after work to handle them.  However, she added she never saw him working after hours.  All witnesses interviewed stated the claimant never told them he worked before his duty hours and with the exception of one witness, the claimant never told the others he worked after his duty hours. 

In addition to the initial information received by OPM in the agency’s administrative report, as a result of our interviews we requested from ORM’s Human Resources Manager copies of the CATS entry log showing all occasions the claimant logged into CATS while employed at SEO.  That information was furnished to us by ORM’s Manager, Infrastructure and Maintenance, Technology and Development Division.  The CATS log provided consists of several columns, the most important of which show the “Event Title” and the “Date/Time Stamp” indicating for what purpose, and on what actual date and time, the claimant entered CATS to perform some activity such as “login message, view a case, new case.”  An additional column ("Event Message") sometimes identifies a specific case number.  Our review of the CATS log disclosed the claimant made entries into CATS before 8:00 a.m. and after 4:30 p.m. (occasionally as late as 8:00 p.m.) a total of 469 times during the claim period.  Although the log indicates the claimant entered CATS 66 times before 8:00 a.m. on workdays, this contradicts his personal work calendars submitted with his claim which show no entries before 8:00 a.m. 

When discussed via email with ORM’s Infrastructure and Maintenance Manager, he explained the CATS log does not reflect the duration of each event and it is not a security or audit trail log.  He stated the log is an internal application whose purpose is to trace malfunctions of business process events inside the application by their assigned Log ID numbers, not to identify what users are doing inside the system.  He noted that although ORM managers have access to the log information, it would not be useful to them for tracking individual employee performance because it does not contain the information needed for that purpose.  It is primarily used by ORM’s Infrastructure and Maintenance staff to log individual business flow process events within the CATS application.  Because the CATS log does not record a log out time for events, it cannot be determined how much time the claimant may have spent performing each event.  However, it does indicate some work-related event occurred before/after his duty hours on a particular date and time, thus adding credence to his claim. 

Our interview with the claimant’s team leader disclosed that on 17 occasions between September 11, 2009, and July 27, 2010, the team leader received emails with attachments (i.e., Notice of Informal Counseling/Counselor Reports for specific cases) from the claimant after 4:30 p.m. on workdays.  No such emails were received before or after those dates.  The attachments were sent to the team leader for his review and release.  The receipt times range from 4:31 p.m. to 5:12 p.m., which indicates the claimant was present and doing work at the SEO office after hours. 

The FLSA requires employers to “make, keep, and preserve all records of the wages, hours and other conditions and practices of employment.”  See 29 U.S.C. § 211(c) and 5 CFR 551.402(b).  An agency cannot deny an employee’s overtime claim on the basis of incomplete or unavailable records.  Under the procedures in place at SEO during the claim period, only overtime which was officially requested or approved in advance could be recorded on the official time and attendance report.  There was no procedure by which an employee could officially record on the time and attendance report, or any other Government document, unrequested or unapproved overtime which was suffered or permitted.  Therefore, the agency has failed to discharge its statutory duty to keep complete and accurate records of all hours worked. 

Findings

Our interviews with eight SEO staff members who worked with the claimant during part or all of the claim period provide varying information.  All eight had no knowledge of his working before 8:00 a.m., but one stated he saw the claimant doing work after 4:30 p.m. once or twice a week.  Another said he occasionally observed the claimant staying after 4:30 p.m. but did not know if he was working.  A third staff member said he occasionally referred phone calls or walk-ins to the claimant around 4:30 p.m. and he would stay after hours to handle them.  Another stated the claimant told her he stayed after work to take phone calls, but she never saw him working after hours.  Three of these witnesses said they did not know how long after 4:30 p.m. the claimant stayed at the office, and seven of the eight interviewed said the claimant never told them he worked before or after his duty hours.  Given the fact that two staff members observed the claimant working after hours, the CATS records indicate he logged into CATS numerous times during the claim period before and after work hours, and the team leader received 15 email messages transmitting work products after the claimant’s duty hours, we conclude there is independent corroborating evidence the claimant performed work intermittently before or after his scheduled duty hours. 

As previously discussed, the claimant requests a total of 12 hours of FLSA overtime pay for time he spent preparing his pay claims to ORM and OPM.  We find that time is not compensable because it does not meet the definition of “hours of work” as defined in 5 CFR 551.104.  That term solely refers to all time spent by an employee performing an activity for the benefit of an agency and under the control and direction of the agency. 

As noted above, the CATS log shows that occasionally the claimant entered CATS as late as 8:00 p.m.  However, because he states that all his FLSA overtime claimed was performed while “still at work” at the office (as reflected in his calendars submitted with his claim), and he has not claimed FLSA overtime for work performed at home, we have not addressed the matter in this decision. 

b. Did the claimant’s supervisor know or have reason to believe the work was being performed?

The claimant’s permanent supervisor was the Regional EEO Officer (Field Manager) for SEO.  He was detailed to ORM’s Los Angeles Operations Office from May to November 2009, so was not at SEO when the claimant was initially employed.  To supervise SEO during his absence, the agency temporarily detailed another manager to act as SEO Field Manager.  He currently supervises ORM’s Central Plains Operations Office.  The permanent supervisor returned to SEO in December 2009 and supervised the claimant until the claimant left SEO in November 2010.  We interviewed both of these supervisors. 

The claimant’s detailed temporary supervisor occupied the same private office the permanent supervisor normally used.  It was approximately 30 feet from the claimant’s private office.  To reach the claimant’s office, the supervisor went out into the corridor and made four turns.  The claimant’s office was not visible from the supervisor’s office.  When interviewed, the temporary supervisor stated he had no reason to believe the claimant worked outside his scheduled duty hours, and the claimant never mentioned to him he needed to work before and after his tour of duty to complete his work on a timely basis.  The supervisor considered the claimant’s monthly workload in the normal range (8-11 cases) as compared to other counselors, so there was no need for him to perform work on an overtime basis.  He added the counselor team leader equitably distributed cases, and at no time did the team leader bring to his attention that the claimant was overloaded with assignments.  He mentioned the claimant was highly educated and possessed outstanding writing and communication skills, so he expected it would take him less time to generate counselor reports as compared to other counselors.  Although he saw the claimant during the workday, he generally did not speak to him unless there was some issue with a particular case.  He did not recall whether the claimant was provided with copies of any time and attendance or work policies when he initially joined SEO. 

The claimant’s permanent supervisor stated he never saw the claimant work anytime outside his scheduled duty hours, and no other counselors or staff members ever told him so.  Although the claimant stated (in an email to OPM) the majority of communication with the supervisor was verbal, he did not specify he told him he needed to work before or after his tour of duty to complete assignments.  Moreover, he provided no copies of written documents (e.g., emails) informing the supervisor he worked before and after duty hours.  Because counselors work independently, the supervisor noted he didn’t need to speak to the claimant daily, and the claimant states the supervisor rarely visited the claimant’s private office.  The supervisor stated that although the claimant received an “outstanding” performance rating, he averaged only 8.3 cases per month, which would not justify working FLSA overtime.  He added performance ratings are not based on case production, but rather quality, timeliness, etc.  He mentioned the claimant never requested either FLSA overtime or compensatory time off, and was never assigned any “brokered-in” cases transferred from other ORM offices.  The supervisor added he never saw the claimant take a walk-in complainant around closing time.  Regarding the CATS entry log, the supervisor stated he was totally unaware of that particular log, which agrees with information provided by ORM’s information technology (IT) manager, who stated the log was an internal document not routinely shared with ORM operations office managers.  However, the supervisor stated he periodically requested performance data for each counselor from ORM IT staff.  The data provided covered timeliness for the number of cases done, resolution rates, and referrals to alternative dispute resolution.  When OPM explained the CATS log to the supervisor, he stated the information would not have been useful to track performance.  When advised that some entries occurred as late as 8:00 p.m., the supervisor responded that counselors were told not to take work home and that ORM policy is that counseling work should be done in the office.  That policy is documented in written information provided by the agency as part of the claim’s case record. 

The claimant’s team leader stated he had no knowledge of the claimant working before or after duty hours and could not observe him because his office was located in Lake City, Florida.  He added neither the claimant nor any of his coworkers ever told him the claimant worked before or after hours.  He communicated with the claimant via email or telephone, and personally visited the claimant’s office in Bay Pines only four times during the claimant’s employment.  He noted he had 17 emails from the claimant which he sent after 4:30 p.m. during his employment, but these were never shared with the claimant’s supervisors.  When interviewed, the claimant’s permanent supervisor stated he had no knowledge of the emails, and the temporary supervisor could not recall them.  The team leader stated he also carries his own caseload, and his position is neither classified as a “supervisor” nor “lead.”  That information was confirmed by OPM’s review of his position description of record (number 3C754A) which describes only investigative and counseling work, but does not address any responsibilities for the assignment and review of equal opportunity complaint cases.  Thus the team leader’s position is not officially recognized by the agency as a supervisor or work leader and is not in the “supervisory” chain-of-command.  Like the supervisor, the team leader was unaware of the existence of the CATS entry log and stated, after the log was explained, it would have been of no use in assessing counselor performance. 

Finding

OPM’s position is that a supervisor has reason to believe FLSA overtime work is being performed if a responsible person in the supervisor’s position would find reason to believe that was the case.  This is met if the supervisor has direct evidence (e.g., through observation) or indirect evidence (e.g., through the employee’s work products or being so informed by other employees). 

There is no evidence showing that either the claimant’s temporary or permanent supervisors were aware of his working outside his scheduled duty hours.  In addition, although the claimant’s team leader received work-related emails from the claimant after the claimant’s duty hours, the team leader stated these were never discussed or shared with the supervisors, and one supervisor confirmed he had no knowledge of them and the other could not recall them.  Consequently, there is no evidence they had knowledge of them.  Although the team leader assigned and reviewed the claimant’s work and was aware of the after-hours emails, as previously addressed the agency did not officially recognize his position in the “supervisory” chain-of-command.  Consequently, we do not view him as a “supervisor” in meeting the criteria to establish “the supervisor knew or had reason to believe” work was being performed.  Based on the previous discussion, there is no evidence on which to conclude the claimant’s supervisors knew or had reason to believe the claimant was performing FLSA overtime work before or after his scheduled duty hours. 

c. Did the claimant’s supervisor have the opportunity to prevent the work from being performed?

The FLSA defines “hours worked” as all hours which the employer “suffers or permits” the employee to work.  See 29 U.S.C. § 203(g).  Work is “suffered or permitted” if it is performed for the benefit of an agency, whether requested or not, provided that the employee’s supervisor knows or has reason to believe that the work is being performed.  See 5 CFR 551.104.  Under the FLSA, employers have a continuing responsibility to ensure that work is not performed when they do not want it to be performed.  Under 5 CFR 551.402, “[a]n agency is responsible for exercising appropriate controls to assure that only that work for which it intends to make payment is performed." 

OPM’s position is that a claimant’s supervisor had the opportunity to prevent the work from being performed unless:

(1)    he or she did not know or have reason to believe the work was being performed; or

(2)    the work occurred so seldom that it was impossible to prevent; and

(3)    he or she tried by every reasonable means to prevent the work from being performed, including counseling the claimant, controlling his or her work hours more strictly, and if necessary, taking escalating formal disciplinary actions.

As discussed above, we have determined the claimant’s temporary and permanent supervisors did not know or have reason to believe that work was being performed before or after the claimant’s regular duty hours.  The claimant never directly informed the supervisors he was working before or after his scheduled tour of duty, and there is no independent corroboration that the supervisors were so informed or had reason to believe this was occurring. 

Finding

Because the claimant’s supervisors were unaware work was being performed, we conclude they had no opportunity to prevent the claimant from doing so. 

2.  Has the claimant produced enough evidence to show the amount and extent of work performed as a matter of reasonable inference?

Although the claimant’s calendars prepared months after he left SEO indicate the times at which the claimed FLSA overtime work was performed (i.e., after his scheduled duty hours and during lunch breaks), they do not identify the work that was performed during the overtime hours claimed.  Additionally, although the claimant asserts he worked before his scheduled tour of duty, his calendars begin at 8:00 a.m. and do not reflect starting work any earlier.  Therefore, the claimant has produced no evidence of the amount of work performed before his tour of duty, and no evidence of the extent of work performed after his scheduled duty hours as a matter of reasonable inference. 

Finding

There is some corroborating evidence (two witnesses) the claimant worked one or two hours a week after his scheduled tour of duty and occasionally handled walk-in complainants or phone calls referred to him around the end of his work day.  However, there is no evidence that either supervisor during the claim period had any knowledge of his ever working before or after duty hours, and he acknowledges he never told them.  There is no independent corroborating evidence the supervisors did in fact know this was occurring. 

The claimant’s calendars show the hours he claims he worked after his scheduled tour of duty.  However, since the claimant did not record the work he performed during the overtime hours claimed, no reconstruction can be made as to whether the number of hours claimed is reasonable.  Moreover, there are discrepancies between the calendars and the claimant’s official time and leave records, as well as with the CATS log.  Therefore, we conclude the claimant’s calendars cannot be relied on to determine if or when work may have been performed before or after his scheduled duty hours or the amount or extent of any such work. 

II.                   Work performed during lunch periods

1.  Did the claimant show that he performed unpaid FLSA overtime work?

To decide if the claimant performed unpaid overtime work under the FLSA, we must determine whether he performed any work during his lunch periods that was “suffered or permitted” under the Act.  Under the provisions of 5 CFR 551.104 he performed “suffered or permitted” work if:

a. he performed work, whether requested or not, during his lunch periods;

b. his supervisors knew or had reason to believe the work was being performed; and

c. his supervisors had the opportunity to prevent the work from being performed. 

The claimant asserts he frequently worked through his half-hour lunch break performing tasks previously discussed in this decision, and adds an additional 195 hours of work during the lunch period because he was unaware at the time that other employees took up to a one hour lunch break.  The record shows that the addition of 30 more minutes to the lunch break was an informal office practice where employees were allowed to extend their usual 30-minute lunch break if they did not take their two 15-minute daily work breaks.  The claimant confirmed he had no set lunch break and its timing and length varied each day.  A lunch or other meal period is an approved period of time in a non-pay and non-work status that interrupts a basic workday or a period of overtime work for the purpose of permitting employees to eat or engage in permitted personal activities.  Unpaid meal periods must provide bona fide breaks in the workday.  If an employee is not excused from job duties, he or she is entitled to pay for compensable work.

a. Did the claimant perform work during his lunch periods?

All of those interviewed stated employees could take lunch anytime between 11:00 a.m. and 1:00 p.m. daily.  Counselors would arrange coverage among themselves during that period to take phone calls and walk-ins, and usually two counselors tried to be available.  Lunch was normally thirty minutes, but counselors regularly took up to one hour if they didn’t take one or both of their 15-minute work breaks.  Three of the claimant’s coworkers (two of whom worked during the entire claim period) stated they saw the claimant working sometime during the two-hour lunch period “window,” and that it appeared he was entering information into CATS.  He also took calls and occasionally a walk-in complainant.  They noted the claimant usually did not leave the building for lunch and ate in his office.  None of the three witnesses could specify the precise time he took lunch or breaks and could not state how often or how long the claimant worked during the lunch period “window,” particularly because each counselor had a private office and they only observed the claimant when they briefly walked by his office.  The claimant mentioned to one witness he worked during lunch, but did not specify when he took lunch.  Thus, the work may have occurred sometime during the two-hour lunch “window” when it is possible he could have also taken a separate lunch break.  In addition, although the CATS entry logs show he sometimes logged onto the system at times between 11:00 a.m. and 1:00 p.m., no duration is captured and he may have logged on after or before taking his lunch break.  Moreover, the claimant’s calendars do not specify what work he performed during his lunch period.

Finding

Since the claimant could take his lunch anytime between 11:00 a.m. and 1:00 p.m., the timing of the claimant’s lunch break could vary each day.  Although three co-workers reported observing him working during the lunch period “window,” they could not specify the precise time he took lunch, and could not say how often or how long he worked during the lunch period “window.”  Thus, it is possible the claimant worked sometime during the two hour lunch period, and took his allotted time for lunch as well.  Because the witness statements, CATS log data, and his personal calendars do not support the claimant’s assertion he frequently worked during the entire lunch period, he has not met the burden of proof that he performed work during his lunch breaks.  In addition, the claimant is not entitled to overtime compensation for the periods of time he did not take (at his discretion) his regular 15-minute work breaks because he has been paid for those breaks as part of his regular eight-hour tour of duty, and the fact of his taking or not taking them did not extend his tour of duty (Comptroller General decision B-217874, October 7, 1985). 

b. Did the claimant’s supervisor know or have reason to believe the work was being performed?

Interviews with the claimant’s temporary and permanent supervisors and his team leader indicate they were not aware of the claimant working through any portion of his lunch break, and neither the supervisors nor the team leader were informed by the claimant he worked through any portion of his lunch break.  The team leader noted that given his off-site location, he could not observe the claimant during the work day.  Both supervisors mentioned the layout of the office was such that they did not have a direct view of the claimant and his private office.  In an email to OPM, the claimant stated “the majority of the communication was made through verbal and visual communication” with his supervisors.  However, he did not specify he verbally communicated to them that he worked through his lunch breaks.  Moreover, he provided no copies of written documents (e.g., emails) showing he informed them he worked through lunch breaks.  He states only that the permanent supervisor “was aware” because the supervisor directed front office personnel to assign walk-in and telephonic complaints during lunch hours.  While our interviews disclosed complaints were received during the lunch period and possibly handled by the claimant, there is no evidence to show the claimant could not have dealt with them in addition to taking his lunch break sometime during the two-hour lunch break “window.”  

Finding

There is no evidence the claimant’s supervisors (or team leader) saw or were informed by the claimant of his working through any portion of his lunch break.

c. Did the claimant’s supervisor have the opportunity to prevent the work from being performed?

In the absence of either supervisor knowing or having reason to believe that work was being performed, we cannot consider that there was any such opportunity. 

2.  Has the claimant produced enough evidence to show the amount and extent of work performed as a matter of reasonable inference?

Although the claimant’s calendar shows periods when he did not take lunch because he claims he worked during those times (and thus adds overtime work minutes), he does not show what work was performed.  Thus, the claimant has produced no evidence of the extent of work performed during his lunch breaks as a matter of reasonable inference. 

Finding

Three of the claimant’s coworkers stated they saw the claimant working sometime during the two-hour lunch period “window” (11:00 a.m. – 1:00 p.m.), but none of the three witnesses could specify the precise time he took lunch, and could not say how often or how long the claimant worked during the two-hour lunch period.  Because counselors had private offices, they only observed the claimant when they briefly walked by his office.  The claimant mentioned to one witness he worked during lunch, but did not specify exactly when he normally took lunch.  Therefore, his work may have occurred sometime during the two-hour lunch “window” and he may have also taken a separate lunch break.  Neither his supervisors nor his team leader had any knowledge of the claimant working through his lunch break.  There is no corroborating evidence of any verbal communication where the claimant informed the supervisors he worked through lunch, nor is there any written record.  Although the claimant’s calendar shows the amount of claimed FLSA overtime during lunch, it cannot be relied on because it does not specify the work he performed during those times.  In addition, the calendars have previously shown to be inaccurate because the claimant shows working or doing FLSA overtime in the office on holidays or when actually on leave. 

Decision

The claimant has failed to show he performed overtime work under the FLSA for which he was not paid before or after his scheduled duty hours.  All eight co-workers interviewed had no knowledge of his working before the start of his duty day, and only two indicated they saw him working after duty hours.  However, his supervisors had no knowledge or reason to believe he worked before or after his duty hours, and the claimant could not provide any specific evidence he either told or informed them in writing he was working overtime.  The off-site team leader had 17 work related emails sent to him by the claimant after 4:30 p.m. which he did not share with the supervisors.  One supervisor had no knowledge of them, and the other could not recall them.  However, the team leader is not in the supervisory chain and his position is not classified as either a supervisor or lead worker.  Therefore, in relation to this decision he is not considered the claimant's “supervisor” for purposes of knowing or having “reason to believe the work was being performed.”  The claimant never told the supervisors or team leader he was working before or after his duty hours.  Although the claimant’s calendars prepared a few months after he left the SEO office show the times he claimed overtime work at the office, they are not a reliable record because they do not show the actual work performed during the overtime hours claimed.  Moreover, as previously discussed, we found numerous discrepancies in the calendars.  Thus, the claimant has not produced enough evidence to accurately show the amount and extent of work that may have been performed before or after his scheduled duty hours as a matter of reasonable inference, and this portion of the claim is therefore denied.

The claimant has failed to show he performed overtime work under the FLSA for which he was not paid during his lunch breaks.  Three of the claimant’s coworkers interviewed stated they saw him working when they briefly walked by his office sometime during the two- hour lunch period “window” (11:00 a.m. – 1:00 p.m.).  However, none of the three witnesses could specify the precise time he took lunch, and could not state how often or how long the claimant worked during the lunch period “window.”  The claimant mentioned to one witness he worked during lunch, but did not tell the witness the time he normally took lunch.  Therefore, he may have worked sometime during the two-hour lunch interval and still taken a separate lunch break.  The claimant’s supervisors and team leader stated they were not aware of the claimant working through any portion of his lunch break, and he never informed them either verbally or in writing he worked through his lunch breaks.  Given the layout of the office, the supervisors did not have a direct view of the claimant and his private office.  Although the claimant’s personal calendars show the amount of FLSA overtime claimed during lunch, they cannot be relied on because they do not specify the work he performed during those times.  In addition, the calendars have been shown to be inaccurate and contain multiple discrepancies when compared with other information and documents of record.  Thus, the claimant has not produced enough evidence to show the amount and extent of work that may have been performed during his lunch breaks as a matter of reasonable inference, and this portion of the claim is therefore denied. 

As previously noted in this decision, the claimant also requests all monies and interest that would have been gained from:  (1) monthly investments into his TSP; and (2) the portion of overtime pay that would have been included as part of his salary into his FERS account during the claim period.  However, an employee’s contributions to the TSP and FERS are limited to the employee’s basic pay and do not include overtime pay.  See 5 U.S.C. §8432 and 5 CFR1690.1. 

The claimant has not provided evidence of the liability of the agency and his right to payment for work performed before and after his scheduled duty hours, or during his lunch breaks, and therefore his claim is denied. 

 

 

 

 

 

 

 

 

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