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 Veterans Affairs
Hagerstown, Maryland
Damon B. Ford
Acting Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
08/27/2021
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.
Introduction
On July 16, 2021, OPM’s Merit System Accountability and Compliance received a Fair Labor Standards Act (FLSA) claim from Mr. Darren J. Petite who is employed as a Decision Review Officer, GS-0930-13, with the Veterans Benefits Administration, U.S. Department of Veterans Affairs (VA), in Hagerstown, Maryland. He does not question his agency’s determination that he is FLSA nonexempt during the period of the claim and, therefore, covered by the overtime pay provisions of the FLSA. The claimant states that agency management “unlawfully stipulated that “ALL” GS employees are subject to a pay limitation.” He asserts that as a result of the pay limitation, his requests from May 8, 2021, to June 12, 2021, to work a total of 105 hours in overtime were denied. However, he asserts that since he is FLSA nonexempt, the restriction on pay does not apply to his position, and his overtime requests should have been approved but were not. He believes he is owed overtime pay under the FLSA in the amount of $9,660.24, which he estimates as the amount due to him for the 105 hours of overtime he should have been approved to work. 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.).
Jurisdiction
OPM settles Federal civilian employee FLSA claims under the provisions of section 204(f) of title 29 U.S.C., and 5 CFR part 551, subpart G. 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 compensation, leave, or 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 178.101(b) and 5 CFR 551.703(a).
The record shows the claimant occupies a bargaining unit position (Standard Form 50, block 37). 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, does not specifically exclude FLSA issues from the NGP (Article 43). Therefore, this claim must be construed as covered by the NGP the claimant was subject to during the claim period, and OPM has no jurisdiction to adjudicate this claim.
Although we may not render a decision on this claim, we note the claimant is requesting compensation for the amount of overtime he would have worked if his requests to work overtime had been approved. Under 5 CFR 551.701(a), an employee may file an FLSA claim for overtime pay for work actually performed under the Act. Relevant to this situation is the definition provided by 5 CFR 551.104 of “hours of work” as time spent by an employee performing an activity for the benefit of an agency and under the control or direction of the agency. In this case, because he does not assert he actually performed work for which he has not been paid, the claimant does not have a right to payment for work not performed. Since there can be no liability on the part of the Government or a right to payment under these circumstances, the claim must also be denied for failure to state a claim upon which relief may be granted.
Decision
The claim is denied based on lack of jurisdiction and for failure to state a claim on which relief may be granted.