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


05/02/2016

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Date

Introduction

On January 13, 2014, the U.S. Office of Personnel Management’s (OPM) Office of General Counsel (OGC) received a “grievance and request for back pay” dated January 3, 2014, from claimant Joyce E. Heaton.  The grievance was subsequently transferred to OPM’s Merit System Accountability and Compliance (MSAC).[1]  Thereafter, MSAC issued correspondence dated February 18, 2014, to the claimant explaining its role in the FLSA claims adjudication process and how a claimant could properly file an FLSA claim under OPM regulations.               

On April 22, 2014, MSAC received an FLSA claim dated April 10, 2014, from the claimant who contends that her agency violated the FLSA, 29 U.S.C. 201 et seq., by failing to pay proper overtime.  We have accepted and decided this claim under section 4(f) of the FLSA as amended and OPM’s implementing regulations under 5 CFR part 551, subpart G.

Position information

The claimant was formerly employed as a Farm Loan Officer (Agricultural Loan Specialist) at the Farm Service Agency (FSA), U.S. Department of Agriculture (USDA).  She was duty stationed in Sioux County, Iowa, from February 15, 1998, through February 5, 2005, in Osceola County from February 6, 2005, through January 14, 2012, and to the Guthrie County Office from January 15, 2012, until her retirement date of July 31, 2013.  Her primary duties included making, servicing, and supervising loans and providing technical advice, guidance, and credit counseling to loan applicants and borrowers.  The claimant’s agency determined that her position of Farm Loan Officer (Agricultural Loan Specialist) was nonexempt from the overtime provisions of the FLSA and we concur.    

Nature of Claim

The claimant asserts that while employed as a loan officer she worked, and logged, approximately 2,900 hours of overtime for which she received no overtime pay.  She claims that it was essential for her to work extra hours because of the large volume of loan applications and inequitable distribution of staffing.  She further states that she worked the overtime hours in order to meet “regulatory guidelines and timeframes.”[2]  To support her assertions, the claimant submitted numerous sheets of paper and work calendars containing hand-written entries of overtime hours she asserts she worked from January 10, 1999, through January 13, 2012.  She contends that she “worked the hours and deserve[s] to be paid for them.

General Issues

Claim Period

Federal regulations provide that all FLSA claims filed after June 30, 1994, are subject to a two-year statute of limitations (three years for willful violations).  See 5 CFR 551.702.  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. 

On November 1, 2013, the claimant submitted an agency grievance via email to the Iowa FSA stating: “With this email I am filing a grievance against the USDA-FSA for compensation of hours worked but not paid from January 1999 through January 2012.”  On November 21, 2013, Administrative Officer, Dennis Olson, responded to the claimant’s email stating: “the administrative grievance process is not applicable for former employees,” and referred her directly to OPM for filing an FLSA claim.  As stated, OPM’s OGC then received the claim on January 13, 2014.    

The claimant’s November 1, 2013, email grievance to the Iowa FSA failed to establish an FLSA claim made under appropriate agency procedures, as required by 5 CFR 551.705(b), for the following reasons.  First, under Part 5 in the FFAS Handbook 15-PM, Employee Relations and Services, FLSA claims are not covered under the administrative grievance system.  Specifically, subpart D - Subject Matter Not Covered, states: “The Administrative Grievance System does not apply to…matters appealable to…OPM.”  As FLSA claims may be filed with OPM under 5 CFR 551.705, FLSA claims appear to be excluded by the agency grievance procedure.  Additionally, OPM has long held, and its decisions have plainly stated, that preserving the claim period by submitting a written claim, as provided under 5 CFR 551.702(c), is not satisfied by submitting an email.[3] 

Furthermore, Part 10, paragraph 294, of the FFAS Handbook 32-PM, Pay Administration, states: “Federal employees may file an FLSA complaint to their agency under an FLSA pay claim addressed to the servicing personnel office.”  While the Handbook does not address the filing of an FLSA claim by a former employee, this too suggests the claimant failed to establish an FLSA claim made under appropriate agency procedures, as required by 5 CFR 551.705(b).  However, once the agency made the claimant aware of the existence of Handbook 32-PM in its November 21, 2013, response to the claimant’s November 1, 2013, email and suggested that the claimant file her FLSA claim directly with OPM, the claimant, of her own volition, chose to then file her FLSA claim with OPM.[4]  Therefore, we find the claimant’s January 13, 2014, submission preserved the claim period with OPM and determines the period of possible back pay entitlement.    

Willful Violation      

The FLSA requires the payment of one and one-half times an employee's regular rate of pay for overtime hours worked in excess of forty hours per week.  The FLSA provides that a legal action for unpaid overtime compensation must be brought within two years, "except that a cause of action arising out of a willful violation may be commenced within three years after the action accrues."  If an employer's conduct is found to be a willful violation, meaning that the employer knew or suspected that its actions might violate the FLSA, this adds one year to the two-year statutory limitation period for filing suit and potentially renders an employer liable for an additional year of back pay.

In the present case, if a willful violation were determined to have occurred, any entitlement to back pay for FLSA overtime would have expired on January 13, 2011, and the period of the claim prior to that date is time barred.  On the other hand, a finding that a willful violation has not occurred means any entitlement to back pay for FLSA overtime would have expired on January 13, 2012, and the period of the claim prior to that date is time barred.  

In this case, the claimant has not claimed willful violation on the part of the agency, nor has any evidence been presented to establish willful violation of the FLSA occurred.  Therefore, any entitlement to back pay for FLSA overtime expired on January 13, 2012, under the two-year statutory limitation period and the period of the claim prior to that date is time barred.  As stated, the last day the claimant asserts she worked overtime is January 13, 2012.  Therefore, the only day relevant for claim period purposes is January 13, 2012.    

Evaluation of the Claim

As a preliminary matter, although we have accepted and decided this claim under section 4(f) of the FLSA, as amended, we note the claimant states in her claim:    

I am not asking for overtime pay for these hours.  I am requesting compensation at my regular hourly rate in effect for the hours worked.  I am aware the handbook states that the time limit on “overtime compensation” is two years.  I am not requesting overtime, I am requesting straight time.     

With respect to the claimant’s request above, both the FLSA and the Federal Employees Pay Act (FEPA) of 1945, as amended, provide frameworks for calculating overtime pay for Federal employees.  See 29 U.S.C. § 201, et seq; 5 U.S.C. § 5542(a).  However, claims for payment of overtime pay are subject to different statutory limitation periods.  Unlike the FLSA, the statutory limitation for claims brought under FEPA is six years. 

It would therefore appear that the claimant is attempting to avoid the FLSA statutory limitation by presenting her overtime claim under title 5 U.S.C., relying on the overtime rates found in section 5542.[5]  However, in 1990, Congress amended FEPA through the Federal Employees Pay Comparability Act of 1990, Pub. L. No. 101-509, § 210, 104 Stat. 1389 (FEPCA).  Among other changes, FEPA was amended to add subsection (c) to 5 U.S.C. § 5542:

(c) Subsection (a) [FEPA overtime pay] shall not apply to an employee who is subject to the overtime pay provisions of section 7 of the Fair Labor Standards Act of 1938…

The plain meaning here is that, for the period of time in which overtime is worked, if the employee is entitled to FLSA overtime, the employee is not entitled to FEPA overtime.  During the period for which the claimant seeks overtime pay, there is no question that she would be entitled to have her pay calculated under the FLSA, and section 5542(c) bars recovery for any individual who is covered by the FLSA.  Accordingly, we have adjudicated this claim under the FLSA.              

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 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.

In reaching our FLSA decision, we have carefully considered all information furnished by the claimant and her agency, including information obtained from separate telephone interviews with persons working at the Iowa FSA during the claimant’s employment with that office, including the following:   

• John Vote – Claimant’s first-line supervisor

• Paul Frederiksen – FSA Farm Loan Specialist

Leanne Van Kley – Program Technician

Work performed before and after scheduled duty hours

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

• she performed work, whether requested or not, before or after her scheduled duty hours

• her supervisor knew or had reason to believe the work was being performed; and

• her supervisor had the opportunity to prevent the work from being performed.

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

The claimant asserts she performed work in excess of her scheduled tour of duty, including reviewing and processing loan applications, servicing loans, and restructuring loans.  She asserts that in order to meet regulatory guidelines, timeframes, and workload demands it was essential for her to work after her scheduled tour of duty.  She states her supervisor was aware that she was working overtime because at times he was there with her. 

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

On January 13, 2012, the one day covered by the claim period, the claimant was assigned to the Iowa Farm Loan Program in Osceola County.  The following interviews are included as part of the record:         

Leanne Van Kley

This interview was conducted on February 2, 2016.  Van Kley’s job was to carry out office activities and functions pertaining to the farm loan program.  She said she was “kind of like [the claimant’s] assistant.”  She was listed by the claimant as someone who could confirm that overtime hours were worked.            

According to Van Kley, the claimant was not required to notify management of when she began or ended her day.  She stated that the claimant did occasionally work after her scheduled hours, but she could not specify what time period and what hours.  Van Kley stated that the claimant worked a compressed schedule usually consisting of one 8-hour day and eight 9-hour days, with every other Monday off, for each pay period.  She stated that the claimant stayed at the office late many nights and that she believed the claimant also worked weekends because things were often completed when she came back in the office on Monday.  Van Kley stated that the office workload was growing and she and the claimant were the only two employees to complete it.  She could not say she personally observed or remembered the claimant working on January 13, 2012.       

Paul Frederiksen

This interview was conducted on Tuesday February 2, 2016.  Frederiksen was a Loan Specialist at the FSA office in Shelby County during the claim period.  He had delegated loan approval authority to approve loans at a higher amount than the claimant.  If a loan was above the claimant’s approval authority, she would route it to Frederiksen for approval.  He was listed by the claimant as someone who could confirm that overtime hours were worked.        

Frederiksen began the interview by stating that he and the claimant were not duty stationed in the same place.  His office was in Shelby County which is about 150 miles south of Osceola.  He also stated he did not know whether or not the claimant was required to notify management of when she began or ended her day.                  

Frederiksen confirmed that the claimant was working a compressed work schedule and acknowledged that she most likely was working after her scheduled tour of duty.  He stated that he occasionally received emails from the claimant which were sent after normal duty hours.  He said that he “always felt like [the claimant] put in the hours to get the job done.”  However, he also stated that he was not aware if she was receiving overtime pay for those hours.  He could not say he personally observed or remembered the claimant working on January 13, 2012.                                       

John Vote

This interview was conducted on Friday January 9, 2016.  Vote was a Farm Loan Manager and the claimant’s immediate supervisor during the claim period.  He was, however, duty stationed in Sioux County.  Vote stated he would visit the Osceola office “maybe a few times a week.”  He was listed by the claimant as someone who could confirm that overtime hours were worked.        

During the interview, when asked if he had known the claimant was working outside her normal tour of duty or if the claimant ever informed him personally, by telephone or email, that she was working additional hours to complete her assignments, Vote stated “[the claimant] probably did work extra hours….however, she never complained that she was working overtime and not being paid for it.”  He then noted several days when Ms. Heaton claimed and received overtime pay, compensatory time, or credit hours.  He could not say he personally observed or remembered the claimant working on January 13, 2012.     

Findings

All three individuals interviewed recognized that the claimant more likely than not worked after hours many days.  However none could say with certainty they knew she worked overtime on January 13, 2012.  None of the individuals interviewed attested to personally observing the claimant working on January 13, 2012.    

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

When interviewed, the claimant’s supervisor stated the claimant never complained that she was working overtime and not being paid for it.  The claimant worked relatively independently at a different duty station, therefore the supervisor had infrequent contact with her.  The supervisor stated he did not recall the claimant or any other staff member mentioning that the claimant was working outside her tour of duty to complete work and not being compensated for it.  The supervisor stated he had no reason to believe the claimant worked outside her scheduled duty hours on January 13, 2012. 

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 appears to be reason to believe that the supervisor should have been aware of the claimant working outside her scheduled duty hours, however as he mentioned the claimant documented and received overtime pay, compensatory time, or credit hours for many extra hours of work.  There is insufficient evidence to conclude the claimant’s supervisor knew or had reason to believe the claimant was performing FLSA overtime work after her scheduled duty hours specifically on January 13, 2012. 

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

The FLSA defines “hours worked” as all hours which the employer “suffers or permits” the employee 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 that 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 supervisor knew or had reason to believe that work was being performed before or after the claimant’s regular duty hours on January 13, 2012.  The claimant never directly informed the supervisor she was working after her scheduled tour of duty, and there is no independent corroborating evidence the supervisor did in fact know this occurred. 

Findings

It was the supervisor’s responsibility to ensure his subordinates were not incurring overtime if they were specifically prohibited from doing so unless approved beforehand.  However, because the claimant’s supervisor asserts he was unaware work was performed on January 13, 2012, we cannot conclude that he had the opportunity to prevent the claimant from doing so on that date due to lack of evidence. 

 2.  Has the claimant produced enough evidence to show the amount and extent of work performed as a matter of reasonable inference?

The amount of evidence submitted to substantiate this claim is inadequate.  For example, the claimant submitted a personal daily calendar listing two hours as the number of overtime hours performed on January 13, 2012.  However, we do not find this calendar to be persuasive.  The informal calendar, which merely lists “2 OT” in the daily square, fails to document the actual time when the work was performed and the specific work the claimant purportedly performed. 

Additionally, while the claimant submitted several screen-shots of her FSA email account to substantiate that she was working after hours, the only email shown sent on January 13, 2012, was sent at 9:15a.m., which is during normal business hours.             

Therefore, on the record presented, the claimant has not met her burden of proof.  The claimant’s evidence, while perhaps indicative of some overtime work occurring while she was employed at the FSA, fails to demonstrate overtime work performed on January 13, 2012. 

Findings

There is no corroborating evidence the claimant worked after her tour of duty on January 13, 2012.  There is no evidence her supervisor knew of her working after duty hours during the claim period.  Also, as discussed previously, the claimant’s calendar of overtime hours cannot be relied on to determine if work may have been performed after her scheduled duty hours or the extent of any such work. 

Decision

Given the above analysis, the claimant has failed to show she performed overtime work under the FLSA in excess of 40 hours a week for which she was not paid during the claim period, and is therefore owed no compensation under the overtime pay provisions of the FLSA.  Since the claimant has not provided evidence of the liability of the agency and her right to payment for work performed in excess of 40 hours per week, her claim is denied.   
 

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