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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

Joel J. Warne
N/A
Bureau of Consular Affairs
U.S. Department of State
Tucson, Arizona
Overtime Pay
Denied; Lack of jurisdiction
F-0967-11-01

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

02/27/2013


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 5 CFR 551.710).  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.

Introduction

On November 30, 2012, the U.S. Office of Personnel Management’s (OPM) Merit System Audit and Compliance received a Fair Labor Standards Act (FLSA) claim from Mr. Joel J. Warne (identified by the claimant as a “Federal Labor Standards Act Violation”) for FLSA overtime worked on November 5, 2012.  The claimant states:  

On November 5…I showed up for work at 6:45 AM.  I reported my arrival to supervisors, requesting official union time and began working.  I did not receive any notification of the fact that my schedule was changed until 7:16 (Exhibit B) and an explanation from the director at 7:50 (Exhibit C).  I worked from 6:45 AM until 3:30, at which point I was told to stay until 4:45.  I was ultimately permitted to leave on the basis that I have union-related work to do from home.  I said I would, and did, work from home until 4:45.

The work day on that day went from 6:45 AM until 4:15 AM [sic] with a 45-minute unpaid lunch.  I would like to be compensated for that time with pay, preferably at the overtime rate, and would like to receive a commitment from the Department that they will not refrain from providing information to employees with regard to schedules that could result in their having to work longer than permitted under law without compensation.

We have accepted and decided this claim under Section 4(f) of the FLSA of 1938, as amended (29 United States Code (U.S.C.) § 204(f)).

In reaching our FLSA decision, we have carefully considered all information of record, including that furnished by the claimant.

Jurisdiction

As stated in 5 CFR 551.101, the FLSA:

provides minimum wage standards for both wages and overtime entitlements, and administrative procedures by which covered worktime must be compensated.  Included in the Act are provisions related to child labor, equal pay, and portal-to-portal activities.

Under the provisions of 29 U.S.C. § 204(f), OPM has established an administrative claims process.  This claims process does not cover, as the claimant appears to believe, correcting the behavior of agency officials.  Therefore, OPM does not consider such requests within the context of the claims adjudication function it performs under 29 U.S.C. § 204(f).  OPM’s FLSA claims adjudication authority is limited to reviewing exemption status, minimum wage, and overtime pay claims and child labor complaints as provided for in 5 CFR 551.701(a). 

OPM’s adjudication authority, under the provisions of 29 U.S.C. § 204(f), is an administrative remedy, not a judicial remedy.  See 5 CFR part 551, subpart GSection 7121(a)(1) of title 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 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 states in his claim request that he is a “senior steward” for his union and that the CBA “covers FLSA claims but does not restrict complaints to the grievance procedure (Exhibit E).”  In that regard, he provided a copy of Article 29, Premium Pay, from the 2009 CBA between Passport Services, U.S. Department of State, and the National Federation of Federal Employees-Local 1998, covering the claimant and in effect during the period of the claim.  However, the claimant fails to reference the CBA’s NGP (Article 20), which is controlling for purposes of applying Mudge.  Since the NGP does not specifically exclude FLSA overtime pay issues covering the claimant, the claimant’s FLSA 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.

Decision

The claim is denied based on lack of jurisdiction.

 

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