Washington, DC

U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code

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Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


12/19/2013

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Date

As provided in section 551.708 of title 5, Code of Federal Regulations (CFR), this decision is binding on all administrative, certifying, payroll, disbursing, and accounting officials of agencies for which the 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 to have regularly worked during his lunch and two 15-minute breaks from January 3, 2007, to June 16, 2012.  During the claim period, the claimant was employed as a Testing Clerk, GS-303-5, a position appropriately identified as nonexempt from the FLSA, and assigned to the Military Entrance Processing Station (MEPS), U.S. Military Entrance Processing Command, in Butte, Montana.  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 August 2, 2012, the agency’s administrative report (AAR) on April 2, 2013, and the claimant’s response to the AAR on April 18, 2013.  In reaching our decision, we have carefully reviewed all information furnished by the claimant and his agency and conducted fact-finding with the claimant, who no longer works for the agency.  To help decide this claim, we conducted telephone interviews with the claimant on June 25, 2013, and July 31, 2013; the Test Control Officer (TCO), the claimant’s first-level supervisor, on July 18, 2013; and the Butte MEPS Commander, the claimant’s third-level supervisor, on July 22, 2013.  We also conducted telephone interviews with MEPS-affiliated individuals who worked at that office during the claimant’s employment or were identified by the claimant as a source of corroboration for his claim.

Nature of Claim

The claimants regular work hours during the claim period were: 

            Monday to Thursday:             1:00 p.m. to 9:30 p.m.

            Friday:                                     8:00 a.m. to 4:30 p.m.

The claimant asserts he was required to work with “few exceptions to the rule” through his lunch and two 15-minute breaks from Monday to Thursday and the occasional Friday, the latter when his work hours reverted to 1:00 p.m. to 9:30 p.m. if the MEPS decided to conduct night testing, during the period he was employed from January 3, 2007, to June 16, 2012[1].  He requests payment for 1,210 hours of unpaid FLSA overtime for work performed during his lunch and two 15-minute breaks.  He calculates $26,075 is owed to him.  None of the overtime hours claimed are documented in official agency records.

Claim Period

In his response to the AAR, the claimant states:

It is my understanding that the Statute of Limitations begins to run when a victim first becomes aware they have been victimized.  Since that realization was in June of 2012, that was when the Statute began to run, so the entire 5+ years period IS included.

However, 5 CFR 551.702 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 filed an FLSA claim with OPM which was received on August 2, 2012, the claim period would be preserved as of that date and the claim period of this claim would normally commence on August 2, 2010.

Position information

During the claim period, the claimant served as a night testing clerk for the MEPS.  As described by his position description, his duties included:  (1) conducting aptitude and qualification examinations for applicants of the various Armed Services; e.g., the Armed Services Vocational Aptitude Battery, Computerized Adaptive Testing, and special purpose occupational tests for Service-specific applicants; (2) ensuring security and accountability of all test materials when conducting test sessions and scoring tests using an optical mark reader scanner; (3) operating a personal computer, facsimile machines, scanner, digital copiers, industrial shredders, and other office automation equipment and answering phone and email inquiries; (4) assisting in the conduct of required test material inventories; and (5) participating in training activities and performing Quality Review Process (QRP) duties.

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.

The claimant asserts to have regularly worked during his two 15-minute breaks.  However, he is not entitled to overtime compensation for the periods of time he did not take 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).  Thus, our evaluation will focus exclusively on his claim of having regularly worked during his lunch breaks.

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 that 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.  Our discussion of each criterion follows.

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 break that was “suffered or permitted” under the Act.  Under the provisions of 5 CFR 551.104, discussed below, he performed “suffered or permitted” work if:

a. he performed work, whether requested or not, during his scheduled lunch break 

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.

 a.      Did the claimant perform work during his scheduled lunch break?

It is established OPM policy that work is considered to have been performed if the tasks extend beyond responding to rare and infrequent emergency calls.  The employee must be completely relieved from duty for the purpose of eating regular meals.  If the meal periods are frequently interrupted by calls to duty, the employee would not be considered relieved of all duties and all the meal periods must be counted as “hours worked.”

The claimant served as the night testing clerk from Monday to Thursday (1:00 p.m. to 9:30 p.m.), and on Friday when needed.  From 1:00 p.m. to 2:00 p.m., Mondays through Thursdays and on Fridays when the MEPS conducted night testing, he performed QRP duties including coordinating with other MEPS staff and verifying applicants scheduled for testing that day were “qualified” to complete tests (e.g., the individual met waiting period requirements for retesting), addresses were correct, etc.  Applicants could arrive for testing within a three-hour window between 2:00 p.m. and 5:00 p.m.  The claimant’s night testing clerk duties required his presence in the testing room if and when testing was in progress, performing a variety of work tasks including checking in and verifying the identity of applicants; providing basic instructions; distributing, proctoring, and scoring examinations; performing quality control; and monitoring computer screens.  The claimant alleges he regularly performed the work tasks during his lunch break.

Given the points discussed below, we determine the claimant has not met the burden of proof that he regularly performed work during his lunch break nor has he produced evidence to show the amount and extent of such work as a matter of reasonable inference: 

The lack of eyewitnesses.  The MEPS is divided into three sections:  testing, operations, and medical.  Staff assigned to the claimant’s testing section were on different work schedules.  The work schedule of the claimant’s first-level supervisor was 7:30 a.m. to 4:00 p.m., Monday to Friday.  From 1:00 p.m. to 2:00 p.m., the claimant and his supervisor each occupied desks in the common area of the testing section located on the second floor of the MEPS building.  When applicants arrived, the claimant proceeded to the testing area, a room on the same floor but 25 feet away and no longer visible from the supervisor’s desk.  Departure times for the test scoring technician, test coordinator, and other testing section personnel varied but normally occurred no later than 4:00 p.m.  At 5:00 p.m. (the mid-point of the claimant’s workday), the only MEPS employees present were the claimant and the front desk/security position which is assigned to the operations section and organizationally referred to as human resources assistant (HRA).  Since the night HRA was situated on the first floor of the building, that individual and the claimant were not visible to each other.

We interviewed an individual who occupied the test coordinator position from August 2005 to March 2011.  She worked a different work schedule from the claimant, generally from 6:30 a.m. to 3:00 p.m. on weekdays.  Regardless, she said she witnessed the claimant working through his lunch break.  She said this knowledge was gained as the test coordinator position required travel, and she would sometimes return to the MEPS office around 5:00 p.m. to 6:00 p.m. and witness the claimant in the testing room.  According to the former test coordinator, she would stop and offer to relieve the claimant for a quick break a total of approximately two times from January to March and a total of four times from September to December.  Her stops at the MEPS office were brief for the purpose of dropping off books and other supplies, and thus her contacts with the claimant, occurring approximately six times in a year-long period under these circumstances, were also brief.  We conclude her abbreviated contacts with the claimant were insufficient to clearly demonstrate he worked through his lunch break, since the former test coordinator was not present for the length of time required to determine if the claimant took a lunch break before or after her brief visit to the MEPS office.

The nature of the work.  The primary purpose of the testing clerk position is to proctor aptitude and qualification examinations for Armed Services applicants.  Phone calls and emails to and from the claimant were kept to a minimum during testing to reduce distractions to him and applicants.  The claimant’s position also did not entail producing any notable written work products.  Thus, the nature of his work yields no record of documentation or evidence, via email/phone record trail or other method, to show the claimant continually worked through his lunch breaks.

The volume of work.  The Butte MEPS Commander said the Station is designated as “small” by the Command.  The average number of testers has been steadily declining with the reduction of overseas military engagements and thus the recruitment of applicants.  The claimant estimates a daily maximum of 15 and minimum of 2 testers, with an average of 6 to 8 testers per day.  However, the agency reports that in fiscal year (FY) 2009, the daily average was 6 testers; 4.6 in FY 2010; 3.6 in FY 2011; and 3.3 in FY 2012.  The MEPS conducts tests on Monday mornings and occasionally on other mornings during the week on a limited basis.  The daily average includes the number of tests given during the mornings, which were not administered by the claimant.  As discussed later in this decision, there were times when there were no testers for the night testing clerk to monitor.

Volume of work alone would not necessarily exclude the claimant from performing work during his lunch breaks.  However, since the claimant asserts working through scheduled lunch breaks essentially every day of the claim period, it bears considering the availability of opportunities to take lunch, which is directly related to volume of testers, in this minimal volume-of-work environment.

The accuracy of documentation.  The claimant asserts he worked through his half-hour lunch break to perform the tasks previously discussed.  He provided a one-page handwritten document with his calculations, where he asserts he is owed $13,650 for working 520 overtime hours on Mondays through Thursdays and $1,050 for working 40 overtime hours on the occasional Friday from 2007 to 2010.  The claimant states the calculations do not reflect his leave, paid holidays, or days occupied by organizational meetings or training.  We conclude the calculations are vague and imprecise (corroborated by the claimant’s description as a “ballpark estimate”) and are thus not a reliable record because they do not show the actual number of overtime hours worked or describe and further document the work actually performed that forms the basis of his claim.

The absence of agency documentation.  There is no official agency record of the claimant working overtime.  For example, the time and attendance sheets do not show his working more than 8 hours each day.  In his AAR comments, the claimant states:

Even though I was unable to take the breaks, the employer directed me to input a 30 minute lunch period in order for the time and attendance record to authorize the biweekly wage deposits… Since the MEPS Commander is required to sign off on all time and attendance records for the facility, swearing that they are accurate, that is evidence he was aware that the length of the shift was 8½ hours every night.

The TCO states the claimant never reported working during his scheduled lunch break on time and attendance sheets.  The claimant explained during the interview that the “employer” identified above was a time and attendance clerk responsible for training him on the time reporting system who instructed him on the reporting of lunch breaks.

Moreover, the organization’s practice is for applicants to electronically sign in into their automated personnel record upon arrival.  However, the TCO confirmed that reconstructing any given day to chart the flow of applicants (arrival and departure times) requires searching by individual applicant.  The TCO also explained the testing section collects and maintains Form 727, a daily processing list identifying the individuals testing at the MEPS.  The test scoring technician counts the daily number of applicants on Form 727, tallies the number of applicants on a monthly basis, and records the monthly total on a spreadsheet.  Form 727 lists are retained for only one year.  Thus, the daily processing lists from the August 2010 to June 2012 claim period are no longer available.  As a result, neither the claimant nor the agency have produced documentation showing the stream of applicants was so significant and steady that it could reasonably be concluded the claimant would have had to work through his half-hour lunch break every day during the claim period.  In the absence of any contemporaneous records or accounts regarding the daily number of testers, we are unable to determine either the amount or extent of the work the claimant may have performed during his half-hour lunch.

Given the totality of the points above, the claimant has failed to produce sufficient evidence to support his assertion that he performed work during his lunch break every day during his employment at the Station.  Nonetheless, the work situation of the night testing clerk was such that the claimant may have performed tasks, whether requested or not, beyond answering rare and infrequent emergency calls during his lunch period at least occasionally.

The MEPS Commander described the discretionary options available to the claimant when taking a lunch break:  (1) go to lunch after applicants complete examinations; (2) predict the flow of testers and ask the HRA to stop applicants from entering the testing room while the claimant goes to lunch; and (3) ask the HRA to relieve him for lunch.

Regarding the first option, by 1:00 p.m. the MEPS obtained a list of applicants scheduled to arrive for testing, although walk-ins were permitted to arrive within the 2:00 to 5:00 p.m. window.  Taking a lunch break after applicants completed their tests had merit in light of the daily average number of testers at the MEPS, but this approach would not have guaranteed the claimant would have been able to take a lunch break every day in this manner.

The second option was not viable, which would have required anticipating the testing completion times of applicants.  The completion times could not be calculated to any real degree by the claimant in order for him to carve out a half-hour lunch break.  In his AAR comments, the claimant states:

…upon arrival, an applicant had up to 4 hours to complete the various tests, but the exact amount of time the tester would use could not be predicted and was never known until the tester actually completed his testing.  On the other hand, I would have had to be able to predict my breaks 4 hours in advance.  To take my lunch break at 5:00 pm, I would have had to tell the HR to not admit any tester between 1:00 and 5:00 pm, in order to guarantee the tester could complete his allotted 4 hours prior to my 5:00 lunch break.

Regarding the third option, the claimant suggested neither he nor the HRA were allowed to leave their assigned posts.  We interviewed the lead HRA, who occupied the night HRA position from October 2010 to May 2011 and also adhered to the same work schedule as the claimant.  Contrary to the claimant’s assertions, the HRA said he was allowed to leave his post at the front desk with doors automatically remaining locked during temporary absences.  The TCO confirmed the HRA’s statements.  Furthermore, the HRA said he would monitor the testing when the TCO or other staff members, who served as night testing clerk if the claimant was on leave, required a rest break or lunch.

When applicants are present, the work situation of the night testing clerk is such that he cannot leave the testing area unattended.  The HRA recollects the claimant contacting him a “handful” of times to request he relieve the claimant for a break or lunch.  However, MEPS management failed to establish a formal standing arrangement between the night testing clerk and HRA, which would have ensured the claimant always had the opportunity to take his lunch and also prevented situations involving the HRA’s unavailability due to his or her taking lunch, leave plans, etc.  The TCO states in his September 25, 2012, memorandum for record:

There is not always a person to fill in to allow relief for [the claimant] during breaks… [t]he Testing during his shift generally allowed time for a one half hour break to eat, although it was usually before or after testing was completed.

The TCO’s choice of words include “not always,” “generally allowed,” and “usually,” which indicates a concession that there may have been instances when the claimant either could not ask the HRA or others to relieve him for lunch or to take his lunch break before or after applicants completed examinations.  We conclude it is not credible that the claimant was never able to take his half-hour lunch considering the daily volume of testers at the MEPS was estimated at 4.6 in FY 2010, 3.6 in FY 2011, and 3.3 in FY 2012.  However, as previously discussed, we are unable to determine either the amount or extent of work that may have been performed by the claimant during his half-hour lunch in the absence of any contemporaneous records maintained by the claimant. 

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

The claimant previously occupied the night HRA position when he started employment with the MEPS in January 2007.  The TCO we interviewed served as the claimant’s first-level supervisor since the claimant was reassigned from the HRA to the night testing clerk position in December 2007.  The Operations Officer, who has been deployed and thus unavailable for interview, served as the second-level supervisor from April 2011 to June 2012.  The MEPS Commander we interviewed served as the third-level supervisor since June 2010.  Like the TCO, the Commander worked a different work schedule from the claimant’s, generally working weekdays before 8:00 a.m. to 4:00 p.m.

As previously discussed, MEPS management failed to establish a formal standing arrangement between the night testing clerk and HRA positions to ensure the claimant always had the opportunity to take his lunch.  Furthermore, the TCO’s September 2012 memorandum acknowledges that “[t]here is not always a person to fill in to allow relief” for the claimant, thus conceding that there may have been occasions when the claimant could not ask the HRA or others to relieve him for lunch.  However, the first- and third-level supervisors confirmed they did not see the claimant work overtime because of their different work schedules.  This is substantiated by statements from the claimant; he states in his AAR comments:  “[the second-level supervisor] and [the third-level supervisor] were seldom in the facility after 4:00, and certainly neither observed me or the testers during the night processing.  So neither could testify as to the amount of time I had available for breaks.”

In addition, the claimant’s time and attendance sheets reflected his working eight hours.  His position, as previously discussed, did not require sending emails, making phone calls, or delivering other work products to the supervisors, which could have clued the supervisory staff if the claimant regularly worked through his lunch.  Instead, the Commander considered the testing clerk’s workload as light.  In an undated letter responding to the claimant’s allegations, the Commander states:

Claimant was employed by this organization for over 5 years and at no time (either officially or informally) submitted any concerns regarding breaks or his inability to take them.  In fact, the nature of the employment is such that breaks are (at times) much longer than 15 minutes (or 30 minutes for lunch) when there are a low number of testing individuals.  At times there are no testers at all for the Night Tester to even monitor.

Based on the average number of testers from FYs 2010 to 2012, we find the supervisor’s perceptions that there was no need for the claimant to perform work on an overtime basis, and thus he would be able to take his lunch, as credible.

The claimant, however, states in his AAR comments:

…as the Commander, [the third-level supervisor] received the written complaint from the testing clerk complaining of the additional workload being unfairly transferred to the testing clerk, so he was aware or should have been aware that the testing clerk was receiving additional work beyond his normal responsibility, such that the allegation of “downtime” in which to take breaks, did not exist.

The former test coordinator we interviewed also said she verbally communicated with the TCO approximately 15 to 20 times from March 2009 to March 2011 regarding the claimant working through his lunch break.  The TCO disagreed, saying the verbal conversations with the former test coordinator never occurred.  Moreover, the Commander and TCO we interviewed confirmed they never received an email, letter, or other written document from the claimant informing them of his working during his lunch breaks.  The claimant said, since he did not realize his not taking a lunch was an issue until June 2012, he did not bring it to the supervisor’s attention while he was employed.

The April 21, 2009, Command headquarters policy regarding lunch periods and in force during the claim period states:  “All civilian employees must have a 30 minute non-work lunch period scheduled… as near to the mid-point of their workday to provide a bona fide break in the workday.”  In addition, we noted the Commander’s August 19, 2010, memorandum to all Butte MEPS personnel states, in part, “[l]unch breaks are mandatory for the entire staff…”  The claimant, an employee of the MEPS at that time, would have received notice of the memorandum and, in reading the clear and unambiguous language of the policy, would have been aware that working during his lunch break was an issue for his supervisors’ attention.

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).  Although the TCO implicitly acknowledges there may have been occasions when the claimant could not ask staff to relieve him and he thus may have been unable to take lunch, we found no evidence the supervisors observed the claimant working through lunch or received work products from the claimant showing his working through lunch, or any documentation corroborating they were informed by staff with knowledge of the claimant’s working through lunch, or through any other direct or indirect means.  We determine 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 during his lunch breaks.

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).  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.”

The work environment of the MEPS is such that the night testing clerk is unable to leave an applicant unattended when testing.  Ignoring the work environment of the MEPS, management failed to establish appropriate controls and procedures (e.g., a standing arrangement for the HRA to relieve the testing clerk position for lunch), to ensure that only the work for which the agency intends to make payment is performed.

However, 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 during the claimant’s lunch break.  The claimant never informed the supervisor he was working during his break, and there is no independent corroboration that the supervisors were so informed or had reason to believe this was occurring.  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?

The claimant prepared ballpark estimates indicating he worked 520 hours of overtime on Mondays through Thursdays and 40 hours on the occasional Friday, for work performed during his lunch break.  He did not maintain nor submit with his claim a contemporaneous calendar recording the exact number of hours he worked each day.  His estimates do not account for leave taken, holidays, etc.; therefore, we conclude the estimates cannot be relied on to determine if or when work may have been performed during his lunch break or the amount and extent of any such work as a matter of reasonable inference.  Further, although the claimant asserts he worked through his lunch break every day of his entire employment with MEPS, this assertion is undermined by the workload statistics for this period and the former night HRA’s report of having occasionally relieved the claimant for lunch.

Decision

The claimant has failed to show the amount and extent of overtime work he asserts he performed under the FLSA for which he was not paid.  Therefore, his claim is denied.

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