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


02/05/2016

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Date

Introduction

On December 30, 2014, OPM’s Merit System Accountability and Compliance received a Fair Labor Standards Act (FLSA) claim from Mr. Richard W. Harrington II.  The claimant asserts he worked 19 hours overtime from September 14, 2014, to September 17, 2014, for which he should have been paid under the FLSA.  During the claim period, the claimant was employed as a Forestry Technician (Recreation), GS-462-5, at the Pacific Ranger District, Pacific Southwest Region (Region 5), El Dorado National Forest, Forest Service, U.S. Department of Agriculture, in Pollack Pines, California.  His position was designated by the agency as nonexempt from the provisions of the FLSA.  We received the agency administrative report (AAR) on June 23, 2015.  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 by the claimant and his former agency, including information obtained from separate telephone interviews with the claimant, his former first-level supervisor (i.e. Recreation Officer) and second-level manager (i.e. District Ranger).  Because there was an acting supervisor and acting District Ranger during part of the claim period, both were also interviewed.  In addition, as part of the fact-finding for this appeal, we conducted separate interviews with two of the claimant’s former co-workers (i.e., Forest Protection Officers).

Background

Effective May 18, 2014, the claimant began a temporary appointment (not to exceed 1 year or 1039 hours) as a Forestry Technician (Recreation), GS-462-5.  His tour of duty was 8:30 a.m. to 5:00 p.m., Monday-Sunday; Tuesdays and Wednesdays were his days off.  The claimant describes his position as being an “information specialist” at the Cleveland Corral Information Center, herein referred to as Cleveland, located within the Crystal Basin Recreation Area of the El Dorado National Forest.  He describes his duties as providing information and guiding visitors to places in the forest and handing out maps of the area. 

The King Fire, a wildfire that scorched over 97,000 acres of land in El Dorado County, began on September 13, 2014.  The claimant asserts that on Sunday, September 14, 2014, at about 5:00 p.m., he was told to “keep the gates open to Cleveland for the duration of the fire.”  He explains that the firefighter strike team arrived at Cleveland late on Monday evening and left at 5:00 a.m. on Tuesday morning, that other people such as correctional officers and inmates also slept at the compound Tuesday night, and that he “believed that [he] would be paid for the time [he] spent dealing with customers, LEO’s, fire crews or anyone else who needed [Cleveland] during this time.”  He states, “when my temporary supervisor released me from duty on Wednesday, September 17, 2014 about 12:00 [p.m.] she said I was not supposed to help anyone at all during this time and made me feel like I did something wrong, when in actuality, I thought I was doing my job, which was, providing information.”  The claimant subsequently requested 19 hours of overtime pay when he submitted his timesheet to the acting District Ranger.  The claimant’s timesheet and Earnings and Leave Statement indicate he was paid for 8 hours of overtime for work performed during the week in question.  His temporary appointment was terminated October 3, 2014, due to lack of work. 

Claim Period

Section 551.702 of title 5, Code of Federal Regulations (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).  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.  The claimant indicated he did not file a claim with his agency.  Therefore, we find the claim period was preserved effective December 30, 2014, when it was received by OPM, and the claim period of this claim would extend back to December 30, 2012.  Therefore, the claim was filed timely within the two-year statute of limitations. 

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. 

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 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.

Work performed before and after scheduled duty hours

To decide if the claimant performed unpaid overtime work under the FLSA, we must determine whether he performed any work before or after his scheduled duty hours that was “suffered or permitted” under the Act.  Under the provisions of 5 CFR 551.104, he performed “suffered or permitted” work if:

1.  he performed work, whether requested or not, before or after his scheduled duty hours;

2.  his supervisor knew or had reason to believe the work was being performed; and

3.  his supervisor had the opportunity to prevent the work from being performed.

1.  Did the claimant show that he performed unpaid FLSA overtime work?

The claimant asserts that on the evening of  Sunday, September 14, 2014, when he returned to Cleveland after having worked at another site (i.e., Wrights Lake), he called the ranger station to find out whether he should go home or stay and continue working.  The person who answered the phone indicated that according to another employee, the gates to Cleveland were to remain open for the duration of the fire.  The claimant states the seasonal employee who gave this information was considered “one of the highest ranking temporary employees” and other employees followed her instructions.  Therefore, the claimant stayed at Cleveland and performed work tasks outside his normal tour of duty, which included keeping the gates to the compound open to allow for entry and exit of firefighters (e.g., fire strike team), law enforcement officers and inmates (who had been assisting in fire control) needing to access the area to rest, sleep, use the restrooms, and/or get information.  He asserts he turned off the lights of the compound at 10:00 p.m. and back on at 6:00 a.m. for three days (Sunday-Tuesday).  He states he was not provided with any information as to the location of the fire and feared for his safety, so he chose to sleep all three nights (Sunday-Tuesday) in his personally owned vehicle as opposed to the house trailer provided by the FS. 

The claimant asserts the acting supervisor had reason to believe he was performing work during this period because he either sent him a text message or called him on Sunday night and told him he was safe, since the strike team had arrived.  Further, he asserts that on Monday, September 15, 2014, he called his supervisor and told him what he had been doing, indicating that he was working overtime.  He believes that if instructions had been given to keep the Cleveland gates open, then both the acting supervisor and acting District Ranger should have known that he was working outside his scheduled tour of duty.  Moreover, he describes the acting District Ranger coming to his site on Wednesday, September 17, 2014, and sending him home.  He believes he was sent home either because he had requested to go home to get clothes and water or because the acting District Ranger saw him working on what should have been his day off.  

The claimant states that when he met with the acting District Ranger to fill out his timesheet, he requested to be paid overtime for the hours he worked, but the acting District Ranger’s response to him was, “I’m not paying you for all that.”  He did not pursue the issue and signed his timesheet.  He asserts his timesheet was not filled out by him but rather by the supervisor and therefore, he was not clear as to what 8 hours of overtime work he had been paid for.  He notes he never submitted any requests for overtime to his supervisor, and that his organization did not have a tracking or time and attendance system that could prove or validate whether he performed extra work.  Moreover, he indicated he was never given a written policy or verbal explanation about procedures he needed to follow when working overtime. 

a. Did the claimant perform work before or after his scheduled duty hours?

The claimant’s scheduled tour of duty was Monday-Sunday from 8:30 a.m. to 5:00 p.m., and Tuesdays and Wednesdays were his days off.  The claimant’s work schedule during the week in question is documented on his timesheet as follows:

Sunday            September 14, 2014 - 8:30 a.m. to 5:00 p.m. at Wrights

5:00 p.m. to 9:00 p.m. at CLE (coded as 4 hours overtime)

Monday           September 15, 2014 - 8:30 a.m. to 5:00 p.m. at CLE

Tuesday           September 16, 2014 - 8:30 a.m. to 5:00 p.m. at CLE

Wednesday     September 17, 2014- 8:00 a.m. to 12:00 noon (coded as 4 hours overtime)

Thursday         September 18, 2014 -did not work

Friday              September 19, 2014- 8:30 a.m. to 5:00 p.m. at CLE

Saturday          September 20, 2014- 8 hours administrative leave

Also, submitted with the AAR, the claimant’s Earnings and Leave Statement for pay period 18 corresponds with the information on his timesheet and shows he was paid 4 hours of overtime for work performed on Sunday, September 14, 2014, and 4 hours of overtime on Wednesday, September 17, 2014. 

The claimant was assigned to an information kiosk in a specific area of the forest.  He was not required to notify his management when he began or ended his day and there were no employee sign-in/sign-out sheets used.  Therefore, there is no official record of the actual times the claimant began and ended his day, and there is no official record of him working overtime for the hours in question.  The claimant did not provide any documentation (e.g., separate list or contemporaneous notes) to show what work was actually performed during the hours claimed.  For example, he did not provide specific periods of time when he got up during the night from sleeping in his truck to open the gates for vehicles to enter the site.  During our interview, he stated the hours of work “happened a long time ago and I do not remember.”  Further, he was not able to explain how he determined he had worked a total of 19 hours of overtime.  Moreover, the claimant worked alone at his site and did not provide names of witnesses who could corroborate his claim.

As a result of information gathered during our interviews with the claimant and his supervisor, we determined it necessary to interview two of the claimant’s former coworkers (i.e., Forest Protection Officers).  The first employee interviewed was the person the claimant states gave instructions to the person who answered the phone to keep the Cleveland gates open for the duration of the fire.  The second employee was a coworker whom the claimant stated he often saw and talked with while working at his site and could possibly have seen him working overtime during the period in question.  Both coworkers provided similar information.  Neither had any knowledge of the claimant working outside his tour of duty and both stated they would not have seen him working late because their jobs entailed patrolling different areas away from where the claimant was located.  One coworker added he would pass by the claimant’s site and sometimes stop and talk to the claimant but did not know the claimant’s schedule and, therefore, would not have known whether he was working before or after his tour of duty while the fire was going on or during any other time.  Also, both indicated that neither the claimant nor any other person mentioned or told them that the claimant had worked outside his scheduled tour of duty. 

The FLSA requires employers to “make, keep, and preserve all records of the wages, hours and other conditions and practices of employment.”  See 29 U.S.C. § 211(c) and 5 CFR 551.402(b).  An agency cannot deny an employee’s overtime claim on the basis of incomplete or unavailable records.  Under the procedures in place for the Pacific Ranger District during the claim period, only overtime which was ordered and approved in writing or approved in advance by the supervisor could be recorded on the official time and attendance report.  There was no procedure by which an employee could officially record on the time and attendance report, or any other Government document, unrequested or unapproved overtime which was suffered or permitted.  Therefore, the agency has failed to discharge its statutory duty to keep complete and accurate records of all hours worked. 

Findings

As previously detailed, interviews with two Forest Protection Officers who worked with the claimant during the claim period provided similar information.  Neither knew nor saw the claimant working before or after his tour of duty during the claim period.  Further, the claimant did not produce evidence to show the amount and extent of that work as a matter of reasonable inference.  Therefore, we conclude there is not enough independent corroborating evidence to establish the claimant performed work before or after his scheduled duty hours for the hours in question.

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

The claimant asserts that instructions for his site to remain open for the duration of the fire were given by another employee, whose instructions were always followed.  In addition, he believes if this employee gave such instruction then his acting supervisor and acting District Ranger should have known he was working outside his scheduled duty hours.  We interviewed the employee whom the claimant states gave this order.  When asked if she had given this instruction, she stated that she did not remember having that conversation with anyone.  Fact-finding revealed the official title of this employee’s position is Forestry Technician (Recreation), GS-462-5, and her position is not recognized by the agency as a supervisor or work leader and is not in the supervisory chain-of-command.  Consequently, we do not view her as a “supervisor” in considering whether “the supervisor knew or had reason to believe” work was being performed. 

We also interviewed the acting District Ranger who, during part of the claim period, assisted the claimant’s acting supervisor in his detail at Pollack Pines.  It was her understanding that as the fire started in the direction of Pollack Pines, the Forest Law Enforcement Officers (LEOs) would have given the instruction to keep the Cleveland gates open.  She does not recall having gone in her truck to the claimant’s site on Wednesday, September 17, 2014, and instead she believes she saw him in a meeting at the supervisor’s office on Highway 50 in Placerville.  When she realized the claimant was still working that day, she told him to go home to rest and take the following day off.  She states she did not see him working and that no other staff member told her that he had been working outside his tour of duty.  The following Monday, when everyone gathered to submit their timesheets, the claimant described a number of hours he had worked.  She stated that none of the supervisors had requested him to work overnight and believed there had been a misunderstanding.  Nevertheless, she wanted to be fair and reasonable and discussed and reviewed his timesheet for the hours that he had worked.  She states she had no reason to believe he had been working outside his tour of duty until he turned in his timesheet and requested overtime pay.  Regarding how it was determined to pay him for 8 hours of overtime, she stated the claimant was paid 4 hours of overtime on Sunday, September 14, 2014, and 4 hours for Wednesday, September 17, 2014, and that she told the claimant “to take Thursday off because he needed to rest and come back on Friday.”  She also stated that she and the acting supervisor determined they would not pay him the other hours because it was not requested of him to work overnight and he had both of their cell phone numbers and neither supervisor received a call from the claimant to confirm any overtime. 

According to the claimant’s acting supervisor (acting from mid-August to mid-November 2014), a directive from the incident command (i.e., fire management personnel) requested access to Cleveland so vehicles could park onsite.   As a result, he and the acting District Ranger would have made an announcement in regard to keeping the gates to Cleveland open.  However, he had no reason to believe the claimant was working outside his tour of duty.  To his recollection, the claimant was working his regular shift hours and staying in the government-owned trailer provided for him to sleep overnight.  When asked about the text message and/or call the claimant asserts he sent or made to him telling him he was working overtime, he responded that although he did often communicate with the claimant via text message, he no longer had access to texts received at that time, does not know the context of the text, and therefore could not respond to having received such text.  The record contains an email dated June 4, 2015, from the acting supervisor to the District Ranger in response to the claimant’s request for 19 hours of overtime owed to him, as follows: 

Mr. Harrington is correct in his statement in that he was told to keep the gates to the Cleveland Information open for the duration of the fire.  However, he was not requested to staff the site beyond his assigned working hours for the next 3 days.  When it was determined that he had worked extra unauthorized hours… he was paid an additional 8 total overtime hours to compensate him for his efforts. 

Submitted with the AAR were handwritten notes from the District Ranger's conversation with the acting District Ranger and acting supervisor regarding the claimant’s request for overtime pay as well as notes taken during the exit interview conducted with the claimant.  Because the District Ranger had to focus on matters exclusively relating to the King Fire, the acting District Ranger was assigned to oversee all sites within the Crystal Basin Recreation Area.  We interviewed the District Ranger to clarify the content of the notes submitted.  He stated that to his knowledge no supervisor would have given such instruction to an employee to keep the gates open and work overnight during the fire.  In addition, he agreed with the determination made by the supervisors to pay the claimant for 8 hours of overtime.  He also stated he did not know or have reason to believe work was being performed by the claimant outside his scheduled tour of duty.

Findings

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).

There is no evidence showing that either the claimant’s acting supervisor or acting District Ranger was aware of him working outside his scheduled duty hours.  In addition to the acting supervisor not being able to recall whether he had received a text or call from the claimant telling him he was working overtime, we found discrepancies in the claimant’s statements regarding the times of the text  or phone call and the content of the message and/or conversation, thus we cannot consider this information credible.  Therefore, there is insufficient evidence to conclude either the acting supervisor or acting District Ranger knew or had reason to believe the claimant was performing FLSA overtime work before or after his scheduled duty hours.      

c. Did the claimant’s supervisor have the opportunity to prevent the work from being performed?

Under 5 CFR 551.401, all time spent by an employee performing an activity for the benefit of the agency, and under the control or direction of the agency, is “hours of work.”  This includes time during which an employee is “suffered or permitted” to work.  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 that the work is being performed.  See 5 CFR 551.104.  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." 

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, or

(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, there is insufficient evidence to determine the claimant’s acting supervisor or acting District Ranger knew or had reason to believe that work was being performed before or after the claimant’s regular duty hours.  The claimant was not able to show that he directly informed his acting supervisor he was working before or after his scheduled tour of duty, and there is no independent corroborating evidence either supervisor did in fact know this was occurring.

Findings

It was the supervisor’s responsibility to ensure his subordinates were not incurring overtime if they were prohibited from doing so unless approved beforehand.  However, because the claimant’s acting supervisor and acting District Ranger assert they were unaware the work was being performed, and there is no evidence they were aware, we cannot conclude that either had the 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 describes the duties performed during the hours in question as opening the gates as needed for the duration of the fire and turning the lights to his site off at 10:00 p.m. and back on at 6:00 a.m. for three days.  In addition, he states that if he needed to open the gates after he had closed them, he would have to get up to do so.  He also added that because he feared for his safety he “slept in his personal truck all three nights,” as opposed to in the government-provided trailer.  Further, he did not keep a contemporaneous record wherein he recorded the hours and times worked and did not provide the amount of time spent on specific tasks performed during the overtime hours claimed (e.g., when he got up to open the gates for vehicles to enter during the night).  Moreover, during our interviews, he was not able to reconstruct how he arrived at the total of 19 hours of overtime, thus the amount of hours of overtime worked during the period in question is not considered reliable.  The claimant acknowledges having slept in his personal vehicle, but has not established whether he worked intermittently throughout the night.  Therefore, it is not possible to infer how much time he may have actually worked (i.e., a few minutes or hours) or to establish that he worked in excess of what is documented in his time and attendance records for the days in question.

Findings

There is no corroborating evidence the claimant worked before or after his tour of duty during the first week of the King fire.  There is insufficient evidence to determine if the acting supervisor or acting District Ranger during the claim period knew of him working before or after duty hours.  Also, as discussed previously, the claimant did not keep a contemporaneous record such as a list or notes of the work he performed during the overtime hours claimed; thus, no reconstruction can be made to determine whether the number of hours claimed is reasonable.  Therefore, we conclude that we cannot determine if or when work may have been performed before or after his scheduled tour of duty.   

Decision

The claimant has failed to show he performed overtime work under the FLSA in excess of 40 hours a week for which he was not paid.  The claimant did not provide evidence to show that he either told or informed his supervisor in writing he was working overtime, thus it cannot be established that his supervisor was aware he may have been working overtime.  Further, the claimant has not produced evidence to accurately show the amount and extent of overtime hours that may have been performed as a matter of reasonable inference.  Therefore, the claimant has not provided evidence of the liability of the agency and his right to payment for work performed in excess of 40 hours per week, and his claim is denied. 

 

 

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