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In This Section

Pay & Leave Claim Decisions

Washington, DC

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

John J. McGuire
Criminal Investigator
Department of the Navy
Position should be nonexempt, thus due FLSA overtime pay
Nonexempt; potentially due FLSA overtime pay

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



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.

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.


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, on September 8, 1992, and subsequently with OPM on October 20, 1999, challenging his exemption status under the FLSA when he was employed as a Criminal Investigator, GS-1811, at the GS-7 through GS-11 grade levels with the Department of the Navy.  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 September 8, 1990, 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 January 9, 1991 to May 12, 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, in addition to the time he was employed by NCIS [Naval Criminal Investigative Service][1] after the commencement of the Gulf War, up to the date he recovered under previous FLSA settlements.  This period includes August 3, 1987 to August 25, 1990, less Mr. McGuire’s active duty military service time, for which he does not seek recovery.”


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.


[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. 


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 October 1, 2015, in response to the aforementioned court decision, OPM requested an agency administrative report from NCIS regarding this FLSA claim.  By letter dated May 6, 2016, NCIS advised OPM based on their fact-finding that:

The implementing regulations in force at the time provide that exemption criteria shall be narrowly construed and that the burden of proof rests with the agency that asserts the exemption. 5 C.F.R. § 551.202 (1984). The implementing regulations set forth four exemptions: 1) the executive exemption, which applies to managers; 2) the administrative exemption, which is applicable to “advisors, assistants or specialists in a management or general business function or supporting service;” 3) the professional exemption, which applies primarily to teachers and certain designated classes of professions; and 4) the foreign exception [sic], applicable to employees permanently stationed outside of the United States and its territories. 29 C.F.R. §§ 551.205-551.208 (1984).

SA [Special Agent] McGuire, to the Agency’s best knowledge, was at all times during the applicable period, a line investigator, performing the basic production work of the Agency, namely, criminal and counterintelligence investigations and operations. He was not a manager, so the executive exemption would not apply. He was not an “advisor, assistant or representative of management, or a specialist in a management or general business function or supporting service.” In addition, his primary duties did not consist of work that “significantly affects the formulation or execution of management policies or programs.” Thus, the administrative exemption set forth in 29 C.F.R. § 551.205 is inapplicable. Federal Personnel Manual Letter No. 551-1, Attachment 2 does not define the 1811 job series as a professional occupation. Thus, the professional exemption does not apply. The foreign exemption does not apply as SA McGuire’s duty station was in the Philadelphia NISRA during the applicable time period.

Based on the foregoing, we conclude that SA McGuire should have been treated as nonexempt during the applicable time period.

Based on careful review of the record, we concur with the agency’s determination.  The claimant is requesting compensation for work performed from August 3, 1987, to August 25, 1990, less his active duty military service time.[2]  Therefore, Navy 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 agreement.  In this case, the entire claim period (August 3, 1987, to August 25, 1990) is covered.

The claimant’s Standard Form (SF) 50s documenting his employment with Navy indicate he was a nonexempt employee from his appointment on August 3, 1987, until October 25, 1987, when he was reassigned to a different position description (PD) and the agency states “[t]he reassignment SF-50 indicates that SA McGuire is an exempt employee.”  The copy of the appointment SF-50 provided by the agency supports this conclusion.  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 that he was properly compensated under the FLSA during this period, i.e., August 3, 1987, to October 24, 1987. 


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 FLSA exempt, i.e., October 25, 1987, to August 25, 1990.  Since both his active duty military service time and his previous FLSA settlement were for time periods subsequent to August 25, 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.[3]  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] The claimant was employed by the Naval Investigative Service (NIS), which was the predecessor agency of the current Naval Criminal Investigative Service (NCIS).

[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 January 9, 1991, to May 12, 1991.

[3] The agency’s overtime and interest calculations must account for the claimant’s prior receipt of administratively uncontrollable overtime, documented as 25 percent 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 at

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