Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
Office of Resolution Management
Department of Veterans Affairs
Long Beach, California
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
04/30/2015
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). 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 the decision.
Introduction
The claimant asserts he worked overtime for which he should have been paid under the Fair Labor Standards Act (FLSA). During the claim period, the claimant was employed as an Equal Employment Specialist, GS-260-11, at the Western Operations Office (WO), Office of Resolution Management (ORM), Department of Veterans Affairs (DVA), out-stationed in Long Beach, California. The main WO facility was located in Los Angeles, California. 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 December 20, 2011, and the agency’s administrative report on June 9, 2014. In reaching our decision, we have carefully reviewed all information furnished by the claimant and his agency and conducted a telephone interview with the claimant. We also conducted telephone interviews with individuals affiliated with WO identified by the claimant whom he believes could corroborate his claim, as well as other persons working at WO (Los Angeles office) during the claimant’s employment at the Long Beach office, including the following:
Willy Jenkins – Claimant’s temporarily detailed first-line supervisor during the first four months of the claim period.
Winston Johnson – Claimant’s temporarily detailed first-line supervisor for five months of the claim period following Mr. Jenkins.
Lynne Woods-Hurd – Claimant’s counselor team leader during the entire claim period.
Tony Denogean – Equal opportunity counselor and the claimant’s co-worker during the claim period.
Vickye Gammage – Equal opportunity counselor and the claimant’s co-worker during the claim period.
Mable Pope – Retired equal opportunity counselor and the claimant’s co-worker during the claim period.
Nature of Claim
The claimant states he often arrived at the WO-Long Beach office 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 from January 2009 to April 28, 2011. In his initial claim he requested payment for 720 hours of unpaid FLSA overtime for work performed before and after duty hours and during his regular 30-minute lunch breaks. In subsequent emails to his agency, he increased the number of unpaid overtime hours requested to include May and June 2011 for a total of 757.5 hours. None of the overtime hours claimed are documented in official agency records.
As a result of an OPM FLSA claim decision covering an Equal Employment Specialist (Counselor), GS-260-11, position in ORM issued on February 8, 2011, the agency corrected the FLSA determination for all other counselors assigned to that position (number 29218-A) including the claimant, making his position nonexempt. Therefore, the exemption status of the claimant’s position is not in dispute.
Claim Period
Section 551.702 of title 5, Code of Federal Regulations (
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 as defined in 5 CFR 551.104. The claimant does not allege his agency committed a willful violation, and we find no evidence the agency willfully violated the FLSA. Therefore, the claim is subject to a two-year statute of limitations commencing on April 29, 2009, and any time prior to that date falls outside the claim period.
Position information
During the claim period, the claimant served as an equal opportunity counselor for the geographic area covered by the WO 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.
The claimant asserts that due to the demanding performance standards for his position, the voluminous workload of ORM, and shortage of counselors, he frequently worked through his lunch period and before and after his scheduled tour of duty. He states his supervisors were “made aware” he was performing work during those periods because, under the pervasive culture at the WO, everyone (up to and including management) was implicitly expected to put in as many extra hours as necessary to “get the job done.” Indeed, the claimant asserts that it would have been impossible to fully perform his job without regularly putting in extra hours. 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 definition of “employ” includes “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
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
(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,
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 apply a three-part test. Under 5 CFR 551.104, he performed “suffered or permitted” work if:
a. he performed work, whether requested or not, before and after his scheduled duty hours, and during lunch breaks;
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.
The claimant asserts he performed a variety of work tasks outside his normal tour of duty and during lunch breaks 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, and preparing and submitting counselor reports. He states this additional work was performed to cope with a heavy ORM workload and meet counselor performance standards. He states his supervisor knew or had reason to believe he performed this additional work because the entire WO office (including management) was “working long hours” during the claim period in order to “get the job done” and finish the heavy workload. He notes he never submitted any requests for overtime to his supervisor and that WO did not have a tracking or time and attendance system that could prove or validate whether he performed extra work. He also points out that since counselors were misclassified as FLSA exempt during the claim period, no one at WO felt a need to keep track of hours worked. However, in his claim the claimant notes that as a result of a previous OPM FLSA claim decision (referenced above), the agency designated his position nonexempt.
a. Did the claimant perform work before or after his scheduled duty hours and during lunch breaks?
The claimant’s tour of duty during the claim period as identified by the former WO Regional EEO Officer in an email to the claimant dated October 20, 2011, documented in the case record, was as follows:
April 29, 2009-April 29, 2011: Per pay period tour of duty, 6:00 a.m.-3:30 p.m./6:00 a.m.-2:30 p.m.; compressed work schedule 9/80. (which included a 30-minute lunch break)
During the claim period, the claimant worked in a separate building on the grounds of the Long Beach VA medical center, in Long Beach, California, while the main office of WO was located in Los Angeles, California. The claimant recalled that on occasion over the past few years other counselors worked temporarily at his Long Beach office and may have been there during the claim period, but he could not recall their names. The claimant had a private office and independently worked on assignments and cases. The counselor team lead, the rest of the counselor team, and WO management all worked in the WO main office in Los Angeles, approximately 35 miles northwest of Long Beach.
The nature of EEO counselor work dictated that each counselor work independently. Casework involves handling sensitive and personal information. Counselors are required to keep strict confidentiality. A typical work day involved the claimant isolating himself in his office and performing counseling and intake of cases involving DVA employees wishing to file EEO complaints. As such, counselor work load is generally self-paced. Counselors would not necessarily be acquainted with or follow the individual schedules of fellow counselors unless they socialized with each other on a personal basis. However, the claimant indicated he did not generally socialize with others at work.
There were no employee sign-in/sign-out sheets used at WO, therefore there is no official record of the actual times the claimant arrived and departed from the work site. However, the record shows that in the process of the agency investigating the claimant’s 2011 internal claim for FLSA overtime, several emails from him to one of his temporary supervisors (who was unavailable for interview) surfaced, establishing that he performed a total of 2.25 hours of work prior to the start of his duty hours during the claim period. Based on that information, the agency amended his time cards for retroactive payment for those additional hours worked. Other than the preceding information, there is no other official agency record of him ever working overtime. Furthermore, due to the independent nature of EEO counselor case work, verification of individual employee work patterns by fellow counselors and other coworkers is difficult.
Three of the claimant’s former co-workers at WO during the claim period were interviewed, but all of them worked in the Los Angeles office. All of the interviewees stated they could not confirm specific details of the claimant’s work day because they worked in a different location than the claimant and were unable to observe him. Thus, the three coworkers could not corroborate the claimant’s assertion of working before or after his duty hours, or that he ever worked through his lunch break. Another employee, the claimant’s team leader located in the Los Angeles office, stated she received emails from the claimant before and after his work day but could not recall whether they specifically addressed particular work products, and copies were unavailable.
Findings
Three of the claimant’s former co-workers who worked with the claimant during part or all of the claim period stated they could not corroborate whether the claimant worked before or after his duty hours or through his lunch breaks because they worked in the Los Angeles office. The claimant’s team leader stated she received emails from the claimant before and after his workday but could not recall whether they specifically addressed particular work products. Therefore, given the absence of specific information including witness statements and references to specific work products, we are unable to establish the claimant performed work before or after his scheduled duty hours and during his lunch breaks.
b. Did the claimant’s supervisor know or have reason to believe the work was being performed?
The claimant’s supervisor was the Regional EEO Officer (Field Manager) for WO. During the claim period, this position was occupied by four different people, three of whom were temporary or “acting” managers. Two of these temporary managers were assigned the position while a permanent manager was being sought, while the third stepped in after that very same permanent manager retired. Only two of the four managers were available for interview. The other two, including the only permanent manager during the claim period, could not be reached. The Field Manager occupied an office in WO’s Los Angeles facility, whereas the claimant worked independently in the Long Beach office.
When interviewed, both supervisors stated they had no reason to believe the claimant worked outside his scheduled duty hours or during his lunch breaks, and the claimant never mentioned to them he needed to work before and after his tour of duty or during lunch breaks to complete his work on a timely basis. The supervisors considered the claimant’s monthly workload in the normal range relative to other counselors, so there was no need for him to perform work on an overtime basis. The record contains an email dated May 27, 2011, from one of the temporary supervisors interviewed to the WO Regional EEO Officer generally addressing overtime for counselors in the WO office during the claim period. The email recognizes that given workloads, some counselors may have had to “go over, and beyond what was required to get their work done.” However, it does not specifically mention the claimant and, as noted above, the temporary supervisor viewed the claimant’s workload in the normal range, thus not requiring overtime. The email also indicates that counselors were instructed by management to be out of the office at the end of their tours. Both supervisors interviewed specified the claimant worked in a different office, thus they never had direct contact with him during a normal work day. Because counselors work independently and their work was coordinated through a team leader, the supervisors noted they did not need to speak to the claimant daily, and the claimant states the supervisors rarely visited him in the Long Beach office. The supervisors insisted the claimant never requested either FLSA overtime or compensatory time off. The team leader indicated she never discussed with the supervisors whether the claimant worked any overtime hours. The supervisors did not recall whether the claimant was provided with copies of any time and attendance or work policies when he initially joined ORM.
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 the claimant’s supervisors were aware of his working outside his scheduled duty hours. Although the claimant’s team leader received some emails from the claimant before and after his duty hours, she could not recall whether they addressed specific work products, and did not recall discussing any overtime hours worked by the claimant with his supervisors. 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 or during his lunch break.
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 supervisors did not know or have reason to believe that work was being performed before or after the claimant’s regular duty hours or during his lunch breaks. The claimant never directly informed the supervisors he was working during those periods, 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?
In lieu of work schedules, time sheets, or calendars, the claimant bases his claim on an estimate of overtime hours worked. He asserts he routinely arrived at work prior to his scheduled tour of duty, worked through his lunch breaks, and often stayed past his scheduled tour of duty. Therefore, he claims a total of 757.5 hours of unpaid FLSA overtime from January 2009 through June 7, 2011, calculated on the basis of 1.5 hours for each day in the months he claims he worked overtime.
The claimant’s estimate does not identify the work that was performed during the overtime hours claimed. There is no way to cross-reference the hours claimed with actual work performed or specific work products. Therefore, the claimant has produced no evidence of the amount of work performed in excess of 40 hours per week as a matter of reasonable inference.
Finding
There is no evidence the claimant’s supervisors during the claim period had any knowledge of his ever working before or after duty hours and during his lunch break, and he acknowledges he never told them. Moreover, there is no independent corroborating evidence the supervisors did in fact know this was occurring.
The claimant’s overtime estimate shows the total FLSA overtime hours he asserts he worked after his scheduled tour of duty and during his lunch breaks. However, since the claimant did not record or link the actual work he performed to the overtime hours claimed, no reconstruction can be made as to whether the number of hours claimed is reasonable. Therefore, we conclude the claimant’s estimate cannot be relied on to determine if or when work may have been performed before or after his scheduled duty hours and during lunch breaks, or the amount or extent of any such work.
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 and during lunch breaks. His coworkers were unable to corroborate his claim. In addition, his supervisors had no knowledge or reason to believe he worked before or after his duty hours and during lunch breaks, 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 attested she received some emails from the claimant before or after his regularly scheduled hours but could not recall whether they specifically addressed particular work products, and did not recall discussing with the claimant’s supervisors whether the claimant had worked overtime. Although the claimant has provided an estimate of the total overtime hours he claims, it is not a reliable record because it does not show the actual work performed during the overtime hours claimed. Thus, the claimant has not provided evidence to accurately show the amount and extent of work performed before and after his scheduled duty hours and during his lunch breaks as a matter of reasonable inference, and therefore the liability of the agency and his right to payment, and his claim is denied.