Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
Linda Kazinetz
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/14/2017
Date
As provided in section 551.708 of title 5, Code of Federal Regulations (
The agency is to review whether the claimant has worked overtime in accordance with instructions in the “Decision” section of this decision, and if the claimant is determined to be entitled to back pay, the agency must pay the claimant the amount owed him. If the claimant believes the agency has incorrectly computed the amount owed him, he may file a new FLSA claim with this office.
Introduction
On June 4, 2012, the U.S. Office of Personnel Management (OPM) received a letter dated June 4, 2012, from the Law Offices of Bernstein & Lipsett, P.C. (B & L), the claimant’s duly appointed representative, concerning a Fair Labor Standards Act (FLSA) claim they had initially filed on the claimant's behalf with the General Accounting Office (GAO), now the U.S. Government Accountability Office, by letter dated October 2, 1992, and subsequently with OPM on or about September 9, 1999, challenging his exemption status under the FLSA when he was employed “as a GS-1811 criminal investigator”[1] with the Drug Enforcement Administration (DEA). The claimant was a plaintiff in a lawsuit filed in the U.S. Court of Federal Claims at approximately the same time the administrative claim was filed with GAO. Based on information provided by B & L, the claimant was awarded back pay under settlement agreements for the pay period ending October 6, 1990, to the pay period ending November 30, 1991; for the pay period ending December 14, 1991, to the pay period ending January 8, 1992; and for the pay period ending January 11, 1992, to the pay period ending October 29, 1994, subject to the two-year statute of limitations for FLSA claims under 29 U.S.C. § 255(a).
B & L has requested OPM adjudicate the administrative claim filed with OPM and asserts that, because the claimant served in the military during the Gulf War, the statute of limitations applicable to this claim is the five-year statute of limitations under 31 U.S.C. § 3702(b)(2) rather than the two-year statute of limitations (three years for willful violations) applicable to FLSA administrative claims filed under the Barring Act. See 73 Comp. Gen 157 (May 23, 1994); 31 U.S.C. 3702(b); 29 U.S.C. § 255(a). B & L states the claimant was called to active duty with the United States Marine Corps Reserve “from approximately February 3, 1991 to May 26, 1991” in connection with Operation Desert Shield/Storm and, citing the provisions of 31 U.S.C. § 3702(b)(2), asserts: “[H]e is entitled to retroactive back pay and interest… for the period he was employed prior to the commencement of the Gulf War on August 2, 1990, up to the date he recovered under previous FLSA settlements. This period includes January 9, 1989 to September 22, 1990.”
Background
We previously accepted and decided six similar claims under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.), which we denied as time barred. Subsequently, claimant’s representative brought suit under the Administrative Procedure Act (5 U.S.C. § 551 et seq., and 701 et seq.) in the United States District Court for the District of Columbia, alleging that OPM wrongfully applied a two-year statute of limitations in denying their administrative claims for unpaid FLSA overtime pay. Armstrong v. Archuleta, 77 F.Supp.3d 9 (December 30, 2014). In relevant part, the court stated in its opinion:
All Plaintiffs are deemed to have timely filed their claims as of the date of their filings with the Claims Court. As a result, Plaintiffs . . . can recover for the entire claim period under the five-year statute of limitations- that is, for all claims that accrued within five years before the Gulf War commenced on August 2, 1990- minus monies paid under their DOJ Settlements.
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[T]he case is remanded to OPM to adjudicate and process damages in accordance with FLSA and other applicable laws, and Plaintiffs' respective employing agencies are directed to compensate them in accordance with OPM's determinations.
Consistent with the holding in the Armstrong case, we will apply the five-year statute of limitations and corrective methodology (subtracting monies already received under prior settlements or judgments) to the claims of similarly-situated claimants we find to be FLSA non-exempt and potentially due FLSA overtime pay.
Analysis
Under the provisions of 5
…was classified as non-exempt for the period July 9, 1989 through January 27, 1990, and was assigned to the Diversion Group in the Miami Field Division. When he was promoted on January 28, 1990 to GS-9, his status changed to exempt form [sic] FLSA. The classification at the time was based on 5CFR 551.207 for the Professional Exemption ….
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At grades GS 9-11, investigators typically “work under the general administrative and technical supervision of the Group Supervisor who makes initial assignments or gives authorization for assignments initiated by the agent; renders instructions on case development and expects the agent to use initiative and resourcefulness in developing and following leads without periodic supervisory guidance.
During the period of SA [Special Agent] Gallucio’s [sic] claim, the Investigator position was classified as exempt from FLSA at grade GS-9 and above.
Based on our review, we conclude that the administrative or professional exemption criteria should not have been applied to Investigator Gallucio [sic] and he should have been treated as FLSA non-exempt.
Based on careful review of the record, we concur with the agency’s determination. The claimant is requesting compensation for work performed from January 9, 1989, to September 22, 1990, less his active duty military service time.[2] Therefore, DEA would have been potentially required to compensate the claimant under the overtime pay provisions of Subpart E of Part 551 of 5 CFR for work performed within the claim period; i.e., within five years before the commencement of the Gulf War on August 2, 1990, and subject to deduction for any monies paid under the claimant’s DOJ settlement agreements. In this case, the entire claim period (January 9, 1989, to September 22, 1990) is covered.
Although the agency states the claimant “was classified as non-exempt for the period July 9, 1989 through January 27, 1990,” the SF-50s documenting his employment with DEA show he was designated nonexempt from the FLSA from January 9, 1989, to January 28, 1990, when he was promoted to GS-9 and his status changed to exempt. Absent an assertion by the claimant that he was not paid at the FLSA overtime rate during the period of time he was designated as nonexempt, we must conclude he was properly compensated under the FLSA during this period, i.e., January 9, 1989, to January 27, 1990.
Decision
The claimant’s work is FLSA nonexempt (i.e., covered by FLSA overtime provisions), and he is entitled to compensation for all overtime hours worked at the FLSA overtime rate for the period of the claim he was designated as exempt, i.e., from January 28, 1990, to September 22, 1990. Since both his military service time and his previous FLSA settlements were for time periods subsequent to September 22, 1990, they are not germane to the overtime pay calculations for the period of the claim covered by this decision. The agency must follow the compliance requirements on page ii of this decision.
The claimant must submit evidence showing the amount and extent of overtime that was performed as provided for in 5 CFR 551.706(a) as informed by the agency payroll records submitted to OPM and the claimant on September 16, 2016. The agency will have the opportunity to review this evidence using any other sources of information available, including witnesses, before a determination is made as to whether the claimant is entitled to any back pay under the FLSA and any interest as required under 5 CFR part 550, subpart H. Any petition for attorney’s fees and expenses must be submitted to the agency out of which this claim arose. Should the claimant be determined to be entitled to back pay which the claimant believes to be incorrectly computed, the claimant may file a new FLSA claim with this office.
[1] Contrary to the claimant’s assertion, documentation included in the record, including the Standard Form (SF) 50s documenting his employment with DEA during the claim period, show he was employed as an Investigator, GS-1810, at the GS-7 and GS-9 levels from January 9, 1989, to September 5, 1990, after which he was converted to a Criminal Investigator, GS-1811-9.
[2] The claimant’s Certificate of Release or Discharge from Active Duty, DD Form 214, included with his claim shows he was in an active duty status from February 3, 1991, to May 26, 1991.