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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

Christopher W. Gianni
Watch Analyst
Response Division
Region Two
Regional Offices
Federal Emergency Management Agency
New York, New York

Incorrect exemption status
Back pay for overtime and interest
Attorney fees
Denied; Lack of jurisdiction

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



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.


On July 30, 2013, the U.S. Office of Personnel Management’s (OPM) Merit System Accountability and Compliance received an FLSA claim from Mr. Mordy Yankovich on behalf of the claimant “requesting that: 1) [the claimant’s] classification be changed to FLSA non-exempt, 2) he receive all back pay for overtime hours worked that he was not compensated for over the past three (3) years, 3) interest on back payments, and 4) all attorney’s fees.”  He asserts under the heading "Union Membership" that the claimant “was not a member of a collective bargaining unit at any time during the claim period.”

Under section 551.704 of title 5, Code of Federal Regulations (CFR), a claimant may designate a representative in writing to assist in preparing or presenting a claim.  Since Mr. Yankovich presented no written designation, he lacks standing to represent the claimant and is not authorized to act on the claimant’s behalf.  Nevertheless, we may render a decision on the claim based on lack of jurisdiction.

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.).  In reaching our FLSA decision, we have carefully considered all information furnished on the claimant’s behalf and additional documentation we received from his agency on August 1, 2013.


OPM has authority to adjudicate FLSA claims for Federal employees under the provisions of section 204(f) of title 29, United States Code (U.S.C.).  OPM’s adjudication authority is an administrative remedy, not a judicial remedy.  See 5 CFR part 551, subpart GSection 7121(a)(1) of title 5, United States Code, 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 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). 

Information provided by the agency at our request shows the claimant occupies a bargaining unit position. The CBA between the Federal Emergency Management Agency, Region II, and the American Federation of Government Employees, Local 2203, covering the claimant and in effect during the period of the claim, does not specifically exclude FLSA issues from the scope of the NGP (Article 20).  Therefore, the claimant’s FLSA claim must be construed as covered by the NGP and OPM has no jurisdiction to adjudicate this claim.  That the employee was not a union member (as opposed to a member of the collective bargaining unit represented by the union) has no bearing on and does not control this determination. 


The claim is denied based on lack of jurisdiction.


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