Washington, DC

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

---

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


07/27/2012

---

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).  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.  The agency should identify all similarly situated current and, to the extent possible, former employees and ensure they are treated in a manner consistent with this decision, as provided for in 5 CFR 551.708.

Introduction

The claimant is employed as a Secretary (OA), GS-318-6, with Patient Care Services, Veterans Affairs Medical Center, Department of Veterans Affairs (VA), in Bay Pines, Florida.  The claimant seeks to be compensated for overtime hours worked on December 10 and 11, 2011.  Overtime for Federal government employees is recoverable under either title 5 of the United States Code (title 5 overtime) or under the Fair Labor Standards Act (FLSA overtime).  The claimant fails to indicate whether she wishes to recover overtime under title 5 or the FLSA. However, since the claimant states “I am a federal GS employee (non-exempt),” we have accepted her request as an FLSA claim under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).

OPM received the claim on January 24, 2012, and information from the claimant’s servicing human resources office on January 26, 2012.  In reaching our FLSA decision, we have carefully considered all information furnished by the claimant and her employing agency at our request.

Nature of Claim

On December 10 and 11, 2011, the claimant worked overtime hours.  On December 15, 2011, the claimant received an email from the Chief, Fee Basis Service, the component of VA’s Patient Care Services where the claimant is employed, denying the overtime pay.  The email states in pertinent part: “Overtime will not be available on the day an employee has leave scheduled.”  The claimant now seeks a decision from OPM authorizing overtime on those dates and granting her compensation for the hours worked.

In addition to seeking overtime for hours worked as discussed previously, the claimant states she is now “forbidden to do overtime,” and requests OPM allow her to continue working overtime in accordance with Fee Basis Service policy.  The claimant also requests OPM evaluate the Fee Basis Service overtime policy for legality. 

Under 29 U.S.C.§ 204(f), OPM adjudicates FLSA claims brought by employees who seek to challenge FLSA exemption status or FLSA pay decisions made by their employing agency, e.g., overtime pay.  OPM’s claims adjudication authority under 29 U.S.C.§ 204 does not extend to disputes over overtime authorization made by agencies.  It also does not extend to the evaluation of agency overtime policies for legality.  Therefore, this decision is confined only to the claimant’s overtime compensation issue. 

Jurisdiction

Section 7121(a)(1) of 5 U.S.C. directs that except as provided elsewhere in the statute, the grievance procedures in a negotiated collective bargaining agreement (CBA) shall be the exclusive administrative remedy for resolving matters that fall within the coverage of the CBA.  The Court of Appeals for the Federal Circuit has found the plain language of 5 U.S.C. § 7121(a)(1) to be clear, and as such, limits the administrative resolution of a Federal employee’s grievance to the negotiated procedures set forth in the CBA.  Mudge v. United States, 308 F.3d 1220, 1228 (Fed. Cir. 2002).  Further, the Federal Circuit also found that all matters not specifically excluded from the grievance process by the CBA fall within the coverage of the CBA.  Id. at 1231.  As such, OPM cannot assert jurisdiction over the FLSA claims of Federal employees who are or were subject to a negotiated grievance procedure (NGP) under a CBA between the employee’s agency and labor union for any time during the claim period, unless the matter is or was specifically excluded from the CBA’s NGP. See 5 CFR 551.703(a).

The claimant does not dispute that she is a bargaining unit employee.[1] Information provided by the claimant’s employing agency at our request includes the CBA between the VA and the American Federation of Government Employees, National Veterans Affairs Council of Locals, covering the claimant and in effect during the period of the claim.  The CBA does not specifically exclude FLSA overtime pay issues from the NGP (Article 43) covering the claimant.  Therefore, FLSA overtime issues must be construed as covered by the NGP the claimant was subject to during the claim period.  Accordingly, OPM lacks jurisdiction to adjudicate this claim or intervene in this matter.

Decision

The claim is denied based on lack of jurisdiction.

Back to Top