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
05/11/2017
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 plus interest as provided in 5 CFR 550.806. 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 May 9, 2012, the U.S. Office of Personnel Management (OPM) received a letter dated May 9, 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, on March 10, 1992, and subsequently with OPM on or about September 9, 1999, challenging his exemption status under the FLSA when he was employed as a Criminal Investigator, GS-1811, at the GS-7 and GS-9 levels with the U.S. Customs Service (USCS), now integrated into the Department of Homeland Security (DHS). 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 a settlement agreement for the pay period ending March 10, 1990,[1] to the pay period ending April 21, 1990; for the pay period ending May 5, 1990, to the pay period ending May 4, 1991; and for the pay period ending May 18, 1991, to the pay period ending October 29, 1994, subject to the two-year statute of limitations for FLSA claims under 29 United States Code (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 Coast Guard Reserve “from approximately February 3, 1991 to February 15, 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 May 19, 1986 to February 24, 1990, less Mr. Pharis’s active duty military service time, for which he does not seek recovery.”2
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, 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 CFR 551.706, OPM determines the facts necessary to adjudicate a claim. Applying the court’s mandate to determine whether the claimant is owed overtime pay under the FLSA, we must first determine whether the work performed during the claim period is exempt or nonexempt from the overtime pay provisions of the FLSA. On September 29, 2015, in response to the aforementioned court decision, OPM requested an agency administrative report (AAR) from DHS regarding this FLSA claim. By letter dated October 28, 2016, DHS advised OPM that during the claim period, GS-1811 criminal investigators (“special agents”) were designated FLSA nonexempt at the GS-5 and GS-7 grade levels, and FLSA exempt at the GS-9 and above levels. DHS described the major duties and responsibilities of special agents at the GS-9, 11, and 12 grade levels as including initiating, planning, and conducting criminal and civil investigations; preparing detailed written investigative reports concerning case development and disposition; and planning, conducting, and coordinating in-depth criminal and civil investigations. However, the agency advised OPM based on their fact-finding that:
… DHS believes that the GS-9, GS-11, and GS-12 criminal investigators should be considered non-exempt. At these grade levels, an investigator does not serve as an “advisor, assistant, or representative of management, or a specialist in a management or general business function or supporting service.” 5 C.F.R. § 551.205(a) (1984). Nor do they “[s]ignificantly affect[] the formulation or execution of management policies or programs.” Id. at § 551.205(a)(1). Further, the degree of supervision exercised over the Agents – at least at the GS-9 level – suggests that an Agent was not expected to “exercise discretion and independent judgment, under only general supervision.” 5 C.F.R. § 551.205(c).
Based on careful review of the record, we concur with the agency’s determination. The claimant is requesting compensation for work performed from May 10, 1987, to February 24, 1990, when he was employed by USCS, less his active duty military service time.[2] Therefore, USCS would have been 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 (May 10, 1987, to February 24, 1990) is covered.
However, the Standard Form (SF) 50s documenting the claimant’s employment with the USCS show he was designated nonexempt from the FLSA when he was employed at the GS-7 level from May 10, 1987, to May 21, 1988, when he was promoted to GS-9 and his status changed to exempt.[3] Absent an assertion by the claimant that he was not paid at the FLSA overtime rate during the period he was designated as nonexempt, we must conclude he was properly compensated under the FLSA during this period, i.e., May 10, 1987, to May 21, 1988.
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 improperly designated as FLSA exempt, i.e., from May 22, 1988, to February 24, 1990. Since both his active duty military service time and his previous FLSA settlements were for time periods subsequent to February 24, 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. The agency will have the opportunity to review this evidence using any 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.[4] 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] B & L indicated in its claim request to OPM that the claimant was awarded back pay for the pay period ending March 24, 1990. However, in an April 25, 2017, email to OPM, B & L stated he was awarded back pay commencing the pay period ending March 10, 1990, not March 24, 1990.
2 The claimant was employed with USCS from May 10, 1987, to February 24, 1990.
[2] The claimant’s “Reserve Orders and Pay Voucher” included with his claim shows he was in an active duty status from February 3, 1991, to February 15, 1991.
[3] The effective date on the SF-50 documenting the claimant’s promotion to the GS-9 position is not legible. However, the claimant identifies the effective date as May 22, 1988, and the agency does not disagree.
[4] The agency’s overtime and interest calculations must account for the claimant’s prior receipt of administratively uncontrollable overtime, documented as “premium pay” on his SF-50s covering the claim period, using the principles contained within 29 U.S.C. 207(k), 5 CFR 551.501(a)(1) and (5), and 5 CFR 551.541(a). OPM’s Fact Sheet on the topic can be found here: https://www.opm.gov/policy-data-oversight/pay-leave/pay-administration/fact-sheets/guidance-on-applying-flsa-overtime-provisions-to-law-enforcement-employees-receiving-administratively-uncontrollable-overtime-pay/.