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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

Bruce B. Childs
CW Treaty Compliance Specialist (Monitoring)
YA-0301-02
Operations Enterprise
On-Site Inspection Directorate
Chemical and Biological Division
Treaty Monitoring Detachment
Tooele Chemical Agent Disposal Facility
Deseret Chemical Depot
Defense Threat Reduction Agency
Tooele, Utah
Received no overtime pay for work performed before and after scheduled work hours
Nonexempt and overtime pay is due
F-0301-11-01

Ana A. Mazzi
Deputy Associate Director
Merit System Audit and Compliance

06/01/2011


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, and ensure that they are treated in a manner consistent with this decision.  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.  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.

The agency is to compute the claimant’s overtime pay in accordance with instructions in this decision, then pay the claimant the amount owed him.  The agency must also submit a Standard Form 50 showing that the claimant’s exemption status has been changed to comply with this decision.  The SF 50 should be sent to this office within 45 workdays of receiving the decision.  If the claimant believes that the agency has incorrectly computed the amount owed him, he may file a new FLSA claim with this office.

Introduction

On January 27, 2010, the U.S. Office of Personnel Management (OPM) received a Fair Labor Standards Act (FLSA) claim from Bruce B. Childs.  The claimant believes he should be compensated, due to his agency’s willful violation of the FLSA, for time spent picking up and dropping off personal protective gear and processing through an Entry Control Facility (ECF) for the period of June 10, 2007 to the present.  He states it takes approximately 15 minutes before and 15 minutes after his scheduled hours of work to perform these tasks.  When this claim was received, his position was classified as CW Treaty Compliance Specialist (Monitoring), YA-301-02, with Operations Enterprise (OP), On-Site Inspection Directorate, Chemical and Biological Division (OSC), Treaty Monitoring Detachment (OSCOT), Tooele Chemical Agent Disposal Facility, Deseret Chemical Depot, Defense Threat Reduction Agency (DTRA), in Tooele, Utah.  His position has since been converted back to the General Schedule as CW Treaty Compliance Specialist (Monitoring), GS-301-11.  We have accepted and decided his claim under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).

In reaching our FLSA decision, we have carefully considered all material of record, including information furnished by the claimant and his agency, including a copy of the agency’s administrative report which we received on March 18, 2010.  Both the claimant and his supervisor have certified the accuracy of the claimant’s position description (PD), number JX00412.  To help decide the claim, we conducted telephone interviews on August 20, 2010, with the claimant, his first- and second-level supervisors, and the Deputy Treaty Escort Manager. 

General issues

The claimant makes many statements relating to his agency and its handling of compensation.  In adjudicating this claim, our responsibility is to make our own independent decision about how much pay he is owed, including overtime, if any.  We must make that decision by comparing the facts in the case to criteria in Federal law, regulations and other Federal guidelines.  Therefore, we have considered the claimant’s statements only insofar as they are relevant to making that comparison.

The claimant does not question his agency’s FLSA exemption status determination.  The record shows the agency designated the claimant as exempt (i.e., not covered) from the overtime pay provisions of the FLSA under the administrative exemption criteria in 5 CFR 551.206 (a), (b), (c), and (d).  However, in order to determine whether the claimant is due overtime pay under the FLSA, we must first determine whether the work he performs is FLSA nonexempt, and thus covered by the overtime pay provisions of the FLSA.    

Position information

OP-OSC is responsible for supporting the Chemical Weapons Convention (CWC), a multilateral treaty implemented under the Organization for the Prohibition of Chemical Weapons, which prohibits countries from developing, producing, acquiring, stockpiling, retaining, transferring, using, or preparing to use chemical weapons.  The claimant’s major duty involves working with international inspectors, facility personnel, and other Department of Defense officials to coordinate and oversee the conduct of on-site treaty inspection activities.  The claimant spends approximately 15-25 percent of his time physically escorting inspectors to sites within the controlled, double-fenced inclusion area.  During this time, inspectors may take physical samples of materials for laboratory analysis, count containers of controlled materials, and verify that controlled materials were properly destroyed, among other tasks.  The claimant is responsible for enforcing safety and occupational health-related procedures at the Chemical Weapons (CW) disposal site as they relate to treaty inspection activities and to ensure the safety of international inspection team members.  He also monitors inspector activities to ensure actions do not exceed Treaty rights, to ensure unrelated confidential or sensitive information is safeguarded, and to ensure compliance with treaty requirements and relevant U.S. laws, policies, and regulations to include those relating to safety, security, health, and the environment.  While prior to June 10, 2007, the Treaty Compliance Specialists (TCS) would meet inspectors at the Administrative Building before their scheduled hours of work in order to escort them through the ECF into the inclusion area, this duty is currently performed by contract drivers from EG&G Defense Materials. 

The remaining 75-85 percent of the claimant’s time is spent “on-call” for escort duties and supporting the administrative workload requirements of his escort duties.  This work includes word processing, updating spreadsheets, and maintaining backup manual/electronic files as required to provide legal documentation of treaty compliance activities.  The claimant also drafts, edits, prints, and submits for review, either to his supervisor or inspectors, official memos, reports, and other documentation.  He also reviews and responds to inspectors’ requests for data and information.  The claimant also makes arrangements for visitor access to the site, including security clearances, meeting rooms, lodging requirements, etc.  TCSs also perform additional administrative duties in carrying out Detachment Safety Officer, Government Purchase Card (GPC), training, vehicle accountability, and security functions.  The claimant oversees training and the GPC program.

During the interview, the claimant stated he currently works the day shift from 0700 to 1900 [1]hours for seven days during a two week pay period.  The night shift works from 1845 to 0715 each day.  There are a total of nine TCSs, including the claimant, at OSCOT.  They take turns serving as shift leader, approximately once per pay period for day shift, and every day for four weeks during night shift.  As shift leader, the TCSs serve as liaison between management of the CW destruction facility for inspection and/or compliance requests made by team members which would require modification of the facility’s production or compliance activities.  While the shift leader does represent DTRA to the inspectors, the escorts have standard operating procedures (SOP) for all of their duties, including shift leader, and are required to refer any unusual or difficult situations to their supervisors.  

Evaluation of FLSA coverage

Sections 551.201 and 551.202 of title 5 CFR require an employing agency designate an employee FLSA exempt only when the agency correctly determines the employee’s work meets one or more of the exemption criteria.  In all exemption determinations, the agency must observe the following principles:  (1) each employee is presumed to be FLSA nonexempt; (2) exemption criteria must be narrowly construed to apply only to those employees who are clearly within the terms and spirit of the exemption; (3) the burden of proof rests with the agency which asserts the exemption; and (4) if there is a reasonable doubt as to whether an employee meets the criteria for exemption, the employee should be designated FLSA nonexempt.  The designation of a position’s FLSA status ultimately rests on the duties actually performed by the employee.

There are three primary exemption categories applied to Federal employees:  executive, administrative, and professional.  Neither the claimant nor the agency assert the claimant’s work is covered by the executive or professional exemption and, based on careful review of the record, we agree it is not covered.  Therefore, our analysis is primarily limited to the administrative exemption criteria in effect during the claim period.  Given the claim period in this case, the claim is covered by the current FLSA regulations, effected on October 17, 2007.  The claimant contends his agency willfully violated the FLSA, which would extend the period of possible back pay from two years to three years.  We do not agree with this contention and discuss further in our decision.

Administrative Exemption Criteria

The current regulation in 5 CFR 551.206, defines an administrative employee as one whose primary duty is the performance of office or non-manual work directly related to the management or general business operations, as distinguished from production functions, of the employer or the employer’s customers and whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.  The regulation states:

(a) In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered.  The term “matters of significance” refers to the level of importance or consequence of the work performed. 

(b) The phrase discretion and independent judgment must be applied in light of all the facts involved in the particular employment situation in which the question arises.  Factors to consider when determining whether an employee exercises discretion and independent judgment with respect to matters of significance include, but are not limited to, whether the employee:

(1)     Has authority to formulate, affect, interpret, or implement management policies or operating practices;

(2)     Carries out major assignments in conducting the operation of the organization;

(3)     Performs work that affects the organization’s operations to a substantial degree, even if the employee’s assignments are related to operation of a particular segment of the organization;

(4)     Has the authority to commit the employer in matters that have significant financial impact;

(5)     Has authority to waive or deviate from established policies and procedures without prior approval;

(6)     Has authority to negotiate and bind the organization on significant matters;

(7)     Provides consultation or expert advice to management;

(8)     Is involved in planning long-or short-term organizational objectives;

(9)     Investigates and resolves matters of significance on behalf of management;

(10)  Represents the organization in handling complaints, arbitrating disputes, or resolving grievances. 

The regulation explains that the exercise of discretion and independent judgment implies the employee has authority to make an independent decision, free from immediate direction or supervision.  However, an employee can exercise discretion and independent judgment even if the employee’s decisions or recommendations are reviewed at a higher level.  Thus, the term does not require the decisions made by an employee have a finality that goes with unlimited authority and a complete absence of review.  Decisions made may consist of recommendations for action rather than the actual taking of action.  The fact they are subject to review and sometimes revised or reversed after review does not mean the employee is not exercising discretion and independent judgment.  The regulation notes that the exercise of discretion and independent judgment must be more than the use of skill in applying well-established techniques, procedures, or specific standards described in manuals or other sources. 

Under the provisions of 5 CFR 551.206, we find that the claimant’s work does not meet the administrative exemption criteria.  Although he frequently performs non-manual work related to enforcing treaty compliance, his primary duties do not include the exercise of discretion and independent judgment with respect to matters of significance.  He is required to follow SOPs in the performance of all major duties, and does not have the authority to stray from these SOPs without the approval of his supervisor.  While his PD states he performs the duty of shift leader “with full authority to represent and manage DTRA’s interests,” the claimant, his supervisor, and his second-level supervisor all confirmed the claimant is required to report any unusual circumstances, not covered by the SOPs, to his supervisors.  This does not meet the discretion and independent judgment threshold with respect to matters of significance as described in the ten factors of the regulation summarized above.  In addition, the claimant has no authority to formulate, affect, interpret, or implement management policies at his level; he carries out only very specific, short-term assignments and additional duties, rather than major assignments, as the Treaty Compliance Officer and Treaty Coordinator among others have responsibility for larger, over-arching projects.  The claimant lacks the authority to commit his employer in matters having significant financial impact; he has no authority to waive or deviate from established agency policies or procedure; he does not provide advice or expert consultation to management; and he is not authorized to negotiate and bind his organization on significant matters.  Further, unlike the exemption criteria, the claimant is not involved in planning long-or short-term organizational objectives; does not investigate and resolve matters of significance on behalf of management; and is not authorized to represent the organization in handling complaints, arbitrating disputes, or resolving grievances.  While the claimant does work independently, free of immediate supervision and direction, in contrast to the application of discretion and independent judgment, the claimant uses knowledge and skill in applying the well-established international arms control treaty, supporting agreements, related laws, regulations, permits, and operational guidance, which are clearly outlined and governed by specific SOPs.

Conclusion

The claimant’s work does not meet the executive, administrative, or professional exemption criteria.  Therefore, it is nonexempt and properly covered by the overtime pay provisions of the FLSA. 

Evaluation of Claimed Compensable Activity

The claimant believes he should be compensated for time spent picking up and dropping off personal protective gear and processing through the ECF from the period of June 10, 2007, to the present because this work is “integral and indispensable” to his principal work activity.

Prior to June 10, 2007, TCSs at OSCOT were required to report to the Administrative Building, which is located outside the inclusion area, to pick up their mask carriers, protective masks, and nerve agent antidote kits (MK-1) prior to the start of their shift at the Treaty Compliance Building (TCB) inside the controlled inclusion area.  The masks and MK-1 kits were stored inside the carriers, which were located next to a coat rack inside the Administrative Building.  The TCSs would pick up their gear, meet with inspectors, assist them in picking up their masks, carriers, and MK-1 kits, and escort them through the ECF, which was located approximately 75 yards away.  There, they processed through the ECF.  This involved swiping their badges through a scanner in order to open a gate; showing their badges to a guard, who verified their identity and inspected their mask carriers to ensure they had serviceable masks and MK-1 kits and were not carrying any contraband; and putting their hands on a biometric scanner in order to pass through another gate.  The TCSs then walked to the TCB, which was about 100 yards away from the ECF.  Prior to June 10, 2007, the TCSs were compensated for 15 minutes before and after each shift for the time spent  picking up or dropping off their masks, carriers, and MK-1 kits, processing through the ECF, and escorting the inspectors doing the same.  They had a 12-hour approved work schedule for the day shift.  The claimant stated it often took more than 15 minutes to complete this process due to long lines or difficulty getting the inspectors through security at the ECF. 

On June 10, 2007, OP-OSC changed the approved work schedule for TCSs on the day shift to 11.5 hours, which does not include a 30 minute unpaid lunch.  According to the claimant’s supervisor, this change in operations resulted from cost-saving initiatives.  Effective June 10, 2007, contract drivers were responsible for meeting inspectors at the Administrative Building and escorting them through the ECF.  Because of this change in duties, the TCSs were not required to report to the Administrative Building.  They were, however, still required to keep their masks, carriers, and MK-1 kits there.  Therefore, they had to report there in order to pick up this equipment prior to processing through the ECF, because they could not enter the inclusion area without masks and MK-1 kits.  The security process to enter the ECF did not change with the new approved work schedule.  The claimant stated the process of picking up/dropping off their masks, carriers, and MK-1 kits and going through the ECF still took approximately 15 minutes in the morning and 5-10 minutes in the evening, because there were still sometimes long lines to get through the ECF.  The claimant was unable to elaborate exactly why this process still took 15 minutes each way, despite the fact the TCSs were no longer required to escort the inspectors.  His first-level supervisor stated it took approximately five to seven minutes in the morning and evening, and his second-level supervisor stated it took approximately five minutes in the morning and evening.  Given these statements and the processes involved, we conclude the process took approximately seven minutes each in the morning and evening for a total of 15 minutes per workday.

Effective February 27, 2008, OP-OSC authorized all employees, both contract and Government service, to transport their protective masks and carriers from home to their workstations as part of their normal commute.  However, OP-OSC did not allow employees to transport MK-1 kits home.  Instead, employees were instructed to store them in locked containers inside the TCB.  The claimant contends it was impractical to take his mask and carrier home and stated none of the TCSs did this.  The TCSs were instructed to store their masks in the carriers provided; protect the face piece from distortion by hanging masks up by the D-ring on the carrier or sitting the carrier/mask in an upright position so that it is not affected by pressure or weight from surrounding objects; and protect their masks from excessive heat and cold.  The claimant maintained these instructions were impractical and stated all employees still stored their masks in the Administrative Building.  He also stated while it was DTRA policy to maintain the MK-1 kits inside the inclusion area, most of the security guards at the ECF were unaware of this policy and did not let employees in the inclusion area without MK-1 kits.  The claimant and his supervisors stated there were no changes in their previously stated processing times to get their masks and proceed through the ECF. 

The FLSA states employers must pay employees for all hours worked.  The Supreme Court has long noted work is physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer.  However, the Portal-to-Portal Act of 1947 provides that:

No employer shall be subject to any liability or punishment under the FLSA on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities:

(1)   Walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform and

(2)   Activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.

OPM’s administration of the FLSA must comply with the terms of the FLSA but the law does not require OPM’s regulations to mirror the Department of Labor’s FLSA regulations.  OPM’s administration of the FLSA must be consistent with DOL’s administration of the FLSA only to the extent practicable and only to the extent that this consistency is required to maintain compliance with the terms of the FLSA. 

Case law indicates that due to the peculiar nature of the statutory framework surrounding federal employment, it is reasonable for OPM’s regulations to vary from Labor Department standard. See e.g., Billings v. United States, 322 F.3d 1328 (Fed. Cir. 2003). As such, the law does not require OPM’s regulations be perfectly consistent with DOL’s FLSA regulations.  OPM regulations are controlling for covered Federal employees as Congress gave OPM independent authority to regulate FLSA for covered Federal employees.  While there is legislative history indicating that OPM should administer the FLSA “in such a manner as to assure consistency” with DOL regulations and policies, there is no such requirement in the FLSA itself.  While OPM attempts to be consistent with DOL’s FLSA regulations, generally OPM utilizes FLSA guidance from DOL for instructive purposes only.

Under 5 CFR 551.412(a)(1), preparatory or concluding activities that are closely related to an employee’s principal activities and indispensable to the performance of the principal activities and for which the total time spent on that activity is more than 10 minutes per work day are properly credited as hours of work under the FLSA.  Although the claimant is not subject to 29 CFR 790.8(b), we note the Department of Labor (DoL) which administers the FLSA for most segments of the United States workforce, states principal activities include all activities which are an integral part of a principal activity.  This section of regulation also provides the following example of integral activities:

Among the activities included as an integral part of a principal activity are those closely related activities which are indispensable to its performance.  If an employee in a chemical plant, for example, cannot perform his principal activities without putting on certain clothes, changing clothes on the employer’s premises at the beginning and end of the workday would be an integral part of the employee’s principal activity.  On the other hand, if changing clothes is merely a convenience to the employee and not directly related to his principal activities, it would be considered as a preliminary or postliminary activity rather than a principal part of the activity.  However, activities such as checking in and out and waiting in line to do so would not ordinarily be regarded as integral parts of the principal activity or activities.

The claimant cites Land et al v. EG&G Defense Materials, Inc., Case No. 2:04-CV-00479 (D. Utah, Cen.Div. 2007) in support of his claim.  In this case, the plaintiffs were the contractors who now escort inspectors through the ECF at the Deseret Chemical Depot.  The court found “EG&G’s requirements that plaintiffs obtain mask carriers prior to arriving at their workstations” to be compensable.  Although the plaintiffs in this case were performing work at the same location as the claimant, the record shows the plaintiffs were performing different work than the claimant.  The plaintiffs in Land et al v. EG&G were escorting inspectors while obtaining their masks, carriers, and MK-1 kits.  The claimant did not perform this duty during the alleged claim period.  We also note this decision, dated March 23, 2007, was issued prior to February 27, 2008, when OP-OSC policy changed to authorize all employees to transport their protective masks from home to their workstations as part of their normal commute. 

Although not directly applicable to Federal employees such as the claimant, we note DoL’s Wage and Hour Advisory Memorandum No. 2006-2, dated May 31, 2006, states:

donning and doffing of required gear is within the continuous workday only when the employer or the nature of the job mandates that it take place on the employer’s premises.  It is our longstanding position that if employees have the option and the ability to change into the required gear at home, changing into that gear is not a principal activity.

We find DOL Memo No. 2006-2 instructive and therefore, while his written claim to OPM states the carrying and use of the masks is for the benefit of his employer, his arguments must fail because he had the option to transport his mask and carrier to and from work to his home.  Therefore, from February 27, 2008, to the present, when the claimant was authorized to transport his mask and carrier to and from his place of work to his home, regardless of whether he chose to do so, the time spent picking up and dropping off personal protective gear and processing through the ECF is not compensable.  No requirement of law, rule, the employer, or the nature of the work mandates donning and doffing at the employer’s premises, and waiting in line to check in or pass through security is not compensable under the FLSA.  See IBP v. Alvarez, 546 U.S. 21 (2005).

Thus, we are left with the question as to whether the claimant’s time spent picking up and dropping off his mask, carrier, and MK-1 kits and processing through the ECF from June 10, 2007 to February 27, 2008 (i.e., prior to the OP-OSC policy change authorizing all employees to transport their protective masks from home to their workstations as part of their normal commute), is compensable hours of work.  Section 203(o) of title 29, United States Code (U.S.C.), states that, for the purposes of the minimum wage and overtime provisions of the FLSA, in determining the hours for which an employee is employed there shall be excluded any time spent changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.  For instructive purposes only, we note DoL has issued an Administrator’s Interpretation No. 2010-2 on June 16, 2010, which states “common usage dictates that “clothes” refer to apparel, not to protective safety equipment which is generally worn over such apparel and may be cumbersome in nature.”  The memo further states “based on its statutory language and legislative history, it is the Administrator’s interpretation that the 29 U.S.C. 203(o) exemption does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job.”

The claimant states his mask is specialized protective gear, because employees are fit tested (a yearly process that involves checking the mask for a tight seal around the wearer’s face) and are not permitted to share or borrow masks from other employees.  His supervisors confirmed these two facts and that Deseret Chemical Depot policy and regulation requires employees to carry masks and carriers with them inside the inclusion area.  They also confirmed that until June 21, 2010, employees were required to carry MK-1 kits with them at all times while in the inclusion area. 

We agree the claimant’s mask, carrier, and MK-1 kits are specialized protective gear.  This is in line with IBP v. Alvarez, 546 U.S. 21 (2005).  Although the parties in that case did not appeal the issue to the Supreme Court, the Ninth Circuit concluded in Alvarez v. IBP, Inc., 339 F.3d 894, 905 n.9 (9th Cir. 2003), aff’d on other grounds, 546 U.S. 21 (2005), that protective equipment does not fit within the definition of “clothes” under § 203(o), thereby making compensable the time workers spend donning and doffing that equipment.  Recognizing the “doctrinal, statutory, and legislative lacunae” that surrounded § 203(o)’s interpretation, the Ninth Circuit rejected the 2002 opinion letter and instead “[gave] the relevant language its ‘ordinary, contemporary, common meaning.’” Id. at 904; accord Reich v. IBP, Inc., 38 F.3d 1123, 1126 (10th Cir. 1994). We do not agree with the claimant that picking up and carrying the mask, as opposed to putting it on over one’s head, constitutes donning.  FLSA regulation does not formally define donning.  Webster’s Third New International Dictionary of the English Language (Unabridged) (2002) defines don as “to put on (as an article of clothing).” 

The mask and kit are not part of a uniform.  The claimant is expected to carry them when inside the inclusion area and they are meant to be worn and used in event of a related emergency.  We find picking up the mask, carrier, and kit is more akin to picking up mandatory equipment (tools) required for working within the inclusion area and, thus, not properly treated as clothing under 29 U.S.C. § 203(o).

Next, we must determine if the act of picking up and carrying the mask, carrier, and MK-1 kit is integral and indispensable to a principal activity.  In making this determination, we employ the two-pronged standard set by the Ninth Circuit in Alvarez for determining whether a “preliminary” or “postliminary” activity is “integral and indispensable.”  The two prongs are whether the activity is necessary to the work performed and of benefit to the employer.  Since the claimant could not perform his principal duties without his mask, carrier, and MK-1 kit, because he was not allowed in the inclusion area without his mask, carrier, and MK-1 kit, there is no doubt the act of picking up said equipment meets the first prong of the standard.    These activities meet the second prong of the standard in that they are made necessary by the nature of the work performed; fulfill mutual obligations between the employer and the claimant; directly benefit the employer in the operation of business; and are so closely related to other duties performed by the claimant as to be an integral part thereof and are, therefore, included among the principal activities of the claimant.  Thus, we find that the act of picking up and carrying the mask, carrier, and MK-1 kit is integral and indispensable to a principal activity, and therefore compensable. 

Claim Period

Under the regulations applicable during the claim period, all FLSA pay claims filed after June 30, 1994, are subject to a two-year statute of limitations (and three years for willful violations).  A claimant must submit a written claim to either the employing agency or OPM in order to preserve the claim period.  The date the agency or OPM receives the claim is the date establishing the period of possible back pay entitlement.  In this case, the appropriate date for preserving the claim period is January 27, 2010, when OPM received the claimant’s request.  Thus, the claim period began on January 27, 2008. 

Willful violation

The claimant contends his agency willfully violated the FLSA, so he believes he is entitled to an additional year in establishing the period of possible back pay.  Therefore, we must determine if the claim period should be extended to three years based on whether the agency’s actions met willful violation criteria defined in 5 CFR 551.104.  “Willful violation” is 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.

5 CFR 551.104 (2007)

Clearly, not all violations of the FLSA are willful as this term is defined in the regulations.  There is no question that the agency erred in the exempt 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.

We find the agency erred in its determination that picking up and dropping off mask, carriers, and MK-1 kits and processing through security were not compensable from June 10, 2007 to February 27, 2008.  However, we also find the agency acted in good faith by making a full and adequate inquiry once their attention was focused on the issue by reviewing relevant laws, regulations and court decisions, despite reaching the wrong conclusion regarding the compensability of the work in question.  We also find the agency erred in its determination of FLSA exemption status.  However, we find this error due to a lack of clarity in regards to the shift lead duties as described in the claimant’s PD and misunderstanding the meaning of discretion and independent judgment on matters of significance in applying the FLSA.  These technical errors also do not rise to the level of willful violation.  In summary, we find the agency’s actions do not meet the criteria for willful violation as defined in 5 CFR 551.104.  Therefore, the two year statute of limitations applies and the claim period began on January 27, 2008.

Decision

For each workweek in the period of January 27, 2008 to February 27, 2008, the claimant is generally due FLSA overtime pay for time spent picking up and dropping off his mask, carrier, and MK-1 kits, which were required to be stored at the Administrative Building, walking to and processing through the ECF, and walking to his workstation at the TCB, encompassing approximately 15 minutes each shift.  This is subject to guidance provided below.

Compliance instructions

As indicated earlier, the claimant’s overtime pay must be calculated on a workweek basis.  Therefore, for each workweek in the claim period, the agency is to compute the claimant’s pay as provided for in 5 CFR 551.511-513.  As provided for in 5 CFR 550.806, the claimant is also owed interest on the back pay discussed above. 

The agency should pay the claimant the total amount owed him plus interest.  If he chooses to accept back pay, the claimant must sign a waiver of suit when he receives payment.  It should be completed by the agency and the claimant, and a copy returned to this office.  If the claimant believes that the agency has computed the amount incorrectly, he may file a new FLSA claim with this office.


[1] Changed from 0800 to 2000 in the 23 May 2007 DTRA memorandum provided by the claimant.

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