Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
U.S. Department of Commerce
New York, NY
Kimberly A. Steide, DPA
Principal Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/11/2025
Date
As provided in section 551.708 of title 5, Code of Federal Regulations (CFR), this decision is binding on all administrative, certifying, payroll, disbursing, and accounting officials of agencies for which the U.S. Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA). There is no right of further administrative appeal. This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708 (address provided in section 551.710). The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.
On April 15, 2021, via email the U.S. Office of Personnel (OPM) received a FLSA claim. The claimant believes he is owed compensation under the FLSA for time spent on standby duty. 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.).
The claimant was employed in an Enumerator, AD-0303-0, position with the U.S. Census Bureau (Census) during the period of the claim.[1]
The claimant asserts he was offered, and accepted, an enumeration assignment in the state of Georgia beginning on September 27, 2020. He states that upon arriving in Georgia “[t]here was not enough volume of work to justify the number of enumerators that were sent, so I was not assigned work from FDC for almost all of the days.” Nonetheless, he believes he is owed compensation. He asserts “I am still owed standby pay of $1995.00 under FLSA regulations, of a minimum of 8 hours of pay a day for the days spent on the trip.” He further asserts “Although most of the time spent on the assignment was on standby, I am still owed pay as I was hundreds of miles from my home base and was required to remain in a state of readiness for possible call to service. Hence, the standards met for standby pay plus overtime are met by the FLSA.”
Analysis
Period of the claim
Section 551.702 of 5 CFR provides that all FLSA claims filed after June 30, 1994, are subject to a two-year statute of limitations (three years for willful violations). The FLSA does not merely establish administrative guidelines; it specifically prescribes the time within which a claim must be received in order to be considered on its merits. OPM does not have any authority to disregard the provisions of the FLSA, make exceptions to its provisions, or waive the limitations it imposes. A claimant must submit a written claim to either the employing agency or to OPM in order to preserve the claim period. The date the agency or OPM receives the claim is the date that determines the period of possible back pay entitlement. The claimant did not indicate or provide documentation showing he had filed a valid FLSA claim with Census. OPM received the claimant’s request on April 15, 2021, and this date is appropriate for preserving the claim period.
Applicability of the FLSA
To determine whether the claimant is owed overtime pay under the FLSA, we must first determine whether the work performed was exempt or nonexempt from the overtime pay provisions of the FLSA. The claimant does not question the agency’s determination that he was FLSA nonexempt during the period of the claim and, therefore, covered by the overtime pay provisions of the FLSA. Based on careful review of the record, we concur the claimant was FLSA nonexempt during the period of the claim. The claimant is requesting compensation for work performed from September 27, 2020, to October 17, 2020, when the record shows he was properly classified as FLSA nonexempt. Therefore, Census would have been required to compensate the claimant under the overtime pay provisions of Subpart E, of part 551, of 5 CFR for work performed within the statute of limitations.
Willful violation
The regulations governing the filing of an administrative claim, 5 CFR 551.702(c), also state in pertinent part: “If a claim for back pay (emphasis added) is established, the claimant will be entitled to pay for a period of up to 2 years (3 years for a willful violation) back from the date the claim was received.”
The claimant asserts “…due to the nature of the claim and the ignorance of communication with the agency regarding back wages, the standard for willful ignorance is also met, extending the statute of limitations to three years.” Thus, the next issue we examine 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. Since the claimant asserts that a willful violation occurred, we have addressed the issue below.
Under 5 CFR 551.104, “willful violation” is specifically defined as follows:
Willful violation means a violation in circumstances where the agency knew that its conduct was prohibited by the Act or showed reckless disregard of the requirements of the Act. All of the facts and circumstances surrounding the violation are taken into account in determining whether a violation was willful.
Clearly, not all violations of the FLSA are willful as this term is defined in the regulations. 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 considered.
The information of record furnished by the claimant provides further details about the claim which we will discuss below.
Time spent on standby duty
Under the FLSA, time spent on standby duty is hours of work. The applicable criteria are found in 5 CFR 551.431:
(a)(1) An employee is on duty, and time spent on standby duty is hours of work if, for work-related reasons, the employee is restricted by official order to a designated post of duty and is assigned to be in a state of readiness to perform work with limitations on the employee’s activities so substantial that the employee cannot use the time effectively for his or her own purposes. A finding that an employee’s activities are substantially limited may not be based on the fact that an employee is subject to restrictions necessary to ensure that the employee will be able to perform his or her duties and responsibilities, such as restrictions on alcohol consumption or use of certain medications.
(2) An employee is not considered restricted for “work related reasons” if, for example, the employee remains at the post of duty voluntarily, or if the restriction is a natural result of geographic isolation or the fact that the employee resides on the agency’s premises. For example, in the case of an employee assigned to work in a remote wildland area or on a ship, the fact that the employee has limited mobility when relieved from duty would not be a basis for finding that the employee is restricted for work-related reasons.
The claimant contends that because he “was hundreds of miles from [his] home base, and was required to remain in a state of readiness for possible call to service” he is owed standby pay of $1,995.00 representing “a minimum of 8 hours of pay a day for the days spent on the trip.”
In support of his claim for standby duty pay the claimant submitted emails sent by him to the travel team at Census requesting payment, a Holiday Inn Express and Suites invoice, tables representing travel expenses and reimbursement, and an email to OPM’s FLSA internet mailbox requesting to file a claim. After careful consideration of the claimant’s submissions, we do not find that he has presented any evidence establishing that he was restricted by official order to a designated post of duty. Nor do we find that he was assigned to be in a state of readiness to perform work with limitations on his activities so substantial that he could not use the time effectively for his own purposes, as required by 5 CFR 551.431(a)(1).
Accordingly, in the absence of evidence that the claimant was restricted by official order and assigned to be in a state of readiness, there is insufficient proof that the time claimed was spent on standby duty under the FLSA. By extension, we do not find the agency’s actions meet the criteria for willful violation as defined in 5 CFR 551.104.
The claimant was not on standby duty and the claim is denied. Therefore, no FLSA overtime pay is due.
[1] The record shows that claimant was terminated from the position on December 3, 2020.