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


01/13/2016

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Date

Introduction

The claimant is an employee of the U.S. Department of Veterans Affairs (VA), Great Lakes Acquisition Center (GLAC), in Milwaukee, Wisconsin.  The claimant asserts her agency has erroneously exempted her position that “has resulted in underpayment for overtime worked during the claim period February 10, 2013 through February 2, 2015.”  As a “remedy,” the claimant further requests us to:

Correct FLSA designation on my employee records to encompass the entire claim period.  Authorize and enforce compensation for underpayment of overtime, including interest.  Review applicability of Non-exempt FLSA designation for unwarranted GS-1102s employed by the Veterans Health Administration [VHA] in context of Agency procedures, policies, processes and restrictions.

Do a complete review/assessment of VHA and GLAC procurement policies and procedures and determine organizational culpability for intentional mis-designation of the FLSA code.  The organization has consistently mandated overtime during 4^th quarter fiscal year and beginning of 1^st quarter of the new fiscal year.

Investigate this organization for a willful violation of improper FLSA designation of its GS-1102 employees.

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.).

Analysis

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.  However, 5 U.S.C. § 7121(a)(1) 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 that the Federal Labor Relations Authority, in Case No. WA-RP-14-0021, issued on March 31, 2015, determined a bargaining unit represented by the American Federation of Government Employees (AFGE) covered the claimant’s position.  This decision subsequently was documented in a Notification of Personnel Action, Standard Form (SF) 50, effective June 28, 2015, which changed the claimant’s bargaining unit status code in Block 37 to 1272, a number reflecting coverage by the aforementioned bargaining unit.  Information in the claim request shows the claimant was aware of the above jurisdictional requirements.  In an August 19, 2015, email to a VA human resources staff member seeking guidance on filing an FLSA claim, the claimant states:

Please advise me if the conclusions near the end of this email are correct regarding the filing of an FLSA Claim [sic].

The AFGE – VA Master Agreement (Article 43) does not specifically exclude FLSA or compensation claims.  Would the negotiated grievance procedure (NGP) be my “exclusive administrative remedy” if the VA/VSC HR informed GS-1102s that they were NOT covered by a bargaining unit during the claim period (per the scenario below)?

Scenario:

• As a GS-1102, I am not covered by a bargaining unit from July 1, 2012 through June 27, 2015 . . . block 37 [Bargaining Unit Status] is blank on all SF50s during that time frame
• My claim period is July 1, 2012 through June 27, 2015
• GS-1102s at the GLAC are informed in late June during an all-hands meeting that we have been included in a bargaining unit
• New document is an SF50 effective 6/28/2015 which “Changes Data Element/s/ in Block/s/ #37

Conclusions:

1.      NGP is NOT my exclusive administrative remedy as I was not part of a bargaining unit until 06/28/2015 – preceding [sic] my claim period

2.      GS-1102s can file FLSA claims directly with OPM (or the Agency)?

The claimant states she sent multiple emails to “the GLAC Human Resources (HR) unit in Independence, OH challenging the FLSA designation of Exempt on GS-1102 records,” and specifically cites an email string ending September 5, 2013, and another ending August 21, 2015.  Section 551.702 of 5 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 either to 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 that establishes the period of the claim and determines the period of possible back pay entitlement.  The claimant’s aforementioned emails (as opposed to a “written claim”) do not meet the filing requirements for preserving the claim period as specified in 5 CFR 551.702(c).

OPM received the claimant’s request on September 8, 2015, and this date is appropriate for preserving the claim and establishing the claim period, which would thus extend from September 8, 2013 (or from September 8, 2012, if willful violation attached to the claim), to September 8, 2015.  The claimant’s attempt to limit the claim period to “February 10, 2013 through February 2, 2015,” thereby avoiding the provisions of 5 U.S.C. § 7121(a)(1), is contrary to the plain language of the aforementioned regulations.[1]  As noted above, OPM cannot assert jurisdiction over the compensation, leave, or FLSA claims of Federal employees who are or were subject to an 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.  The CBA between the VA and AFGE, 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) covering the claimant.  Therefore, FLSA 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.

Although we may not render a decision on this claim, we note the claimant misconstrues the scope of the FLSA claims adjudication process.  There is no provision in the regulations for the filing of a group claim.  Each claimant must file his or her claim individually.  See 5 CFR 551.702(a).  Under 5 CFR 551.704, a representative must be designated in writing to represent a claimant before OPM.  Since the claimant’s request did not contain a written designation to represent anyone else, the actions she requested concerning other VA employees would also be outside the scope of the FLSA claims process.  Further, the FLSA claims process is an adjudicative process.  It does not provide for conducting investigations of organizations or individuals or reviewing agency policies and procedures at the behest of a claimant.

Decision

The claim is denied based on lack of jurisdiction.

 

 

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