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In This Section

Pay & Leave Claim Decisions

Washington D.C

U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code

Michael H. Gellick
Criminal Investigator GS-1811-5/7/9
U.S. Customs Service
Position should be nonexempt, thus due FLSA overtime pay
Failure to state a claim on which relief may be granted
F-1811-09-08

Linda Kazinetz
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance

05/01/2017


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 Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA).  The agency should identify all similarly situated current and, to the extent possible, former employees, ensure that they are treated in a manner consistent with this decision, and inform them in writing of their right to file an FLSA claim with the agency or OPM.  There is no further right of administrative appeal.  This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708 (address provided in section 551.710).  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with this decision.

Introduction

On December 20, 2011, the U.S. Office of Personnel Management (OPM) received a letter dated December 20, 2011, 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 April 17, 1990, 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-5, 7, and 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 June 18, 1988, to the pay period ending June 17, 1989; for the pay period ending July 1, 1989, to the pay period ending June 30, 1990; for the pay period ending July 14, 1990, to the pay period ending August 22, 1992; and for the pay period ending September 5, 1992, 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 Marine Corps Reserve “from approximately February 1, 1991 to March 29, 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 June 4, 1988, less Mr. Gellick’s active duty military service time, for which he does not seek recovery.

Background

We previously accepted and decided this claim under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, U.S.C.  Our November 2, 2012, denial found the claim, for the period May 19, 1986, to June 4, 1988, was time barred.  Subsequently, the 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.

***************

[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.

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 19, 1986, to June 4, 1988, when he was employed by USCS, less his active duty military service time.[1]  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 agreement.  In this case, the entire claim period (May 19, 1986, to June 4, 1988) is covered.

However, the Standard Form (SF) 50s documenting the claimant’s employment with USCS show he was designated nonexempt from the FLSA at the GS-5 level from May 19, 1986, to May 23, 1987, and at the GS-7 level from May 24, 1987, to June 5, 1988, when he was promoted to GS-9 and his status changed to exempt.  By email dated December 15, 2016, the claimant’s representative advised they “will not be pursuing” the claim for his GS-5 and GS-7 positions designated as nonexempt.  Further, although the claim request states the claimant was promoted to GS-9 on May 31, 1988, the SF-50 promotion action on record shows an effective date of June 5, 1988.  Since the claimant’s promotion to GS-9 occurred after the end of the claim period, i.e., June 4, 1988, he was thus designated nonexempt for the entire claim period covered by this decision. 

Decision 

The claim is denied for failure to state a claim on which relief may be granted.



[1] 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 1, 1991, to March 29, 1991.

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