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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

Steven S. Marks
Revenue Officer
GS-1169-7/9
Criminal Investigator
GS-1811-7/9/11
Internal Revenue Service
U.S. Department of the Treasury
Positions should be nonexempt, thus due FLSA overtime pay
Nonexempt; potentially due FLSA overtime pay
F-1811-11-11

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

08/16/2017


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.

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 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 November 4, 1994, and subsequently with OPM on or about September 9, 1999, challenging his exemption status under the FLSA when he was employed as a Revenue Officer, GS-1169, at the GS-7 and GS-9 levels, and a Criminal Investigator, GS-1811, at the GS-7, 9, and 11 levels with the Internal Revenue Service (IRS), Department of the Treasury.  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 October 17, 1992, to the pay period ending October 31, 1992, 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 Army “from approximately February 20, 1991 to May 31, 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 period he was employed by IRS after the commencement of the Gulf War, up to the date he recovered under previous FLSA settlements.  This period includes September 14, 1986 to October 3, 1992, less Mr. Marks’s active duty military service time, for which he does not seek recovery.”

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, 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.

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 nonexempt 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 he performed is exempt or nonexempt from the overtime pay provisions of the FLSA.  On October 6, 2015, in response to the aforementioned court decision, OPM requested an agency administrative report (AAR) from IRS regarding this FLSA claim.  By letter dated June 14, 2017, the agency described the claimant’s employment history, in part, as follows:

Steven S. Marks served as a Revenue Officer (1169 Series) during the following periods:

  • September 14, 1986, through September 26, 1987, Grade 7
  • September 27, 1987, through January 2, 1988,  Grade 9

In addition, he served as a Criminal Investigator Special Agent (1811 series) during the following periods:

  • January 3, 1988, through January 14, 1989, Grade 7
  • January 15, 1989, through January 27, 1990, Grade 9
  • January 28, 1990, through October 3, 1992, Grade 11

B & L describes the claimant’s employment history otherwise, stating he occupied GS-1169 revenue officer positions at the GS-7 level from September 14, 1986, to August 26, 1987; GS-9 level from August 27, 1987, to September 12, 1987; GS-7 level from September 13, 1987, to September 26, 1987; and GS-9 level from September 27, 1987, to January 2, 1988.  B & L states he occupied GS-1811 criminal investigator positions at the GS-7 level on January 3, 1988; GS-9 level from January 3, 1988, to August 26, 1988; GS-7 level from August 27, 1988, to January 14, 1989; GS-9 level from January 15, 1989, to January 12, 1990; GS-11 level on January 13, 1990; GS-9 level from January 14, 1990, to January 27, 1990; and the GS-11 level from January 28, 1990, to October 3, 1992.  Since the claimant’s Standard Form (SF) 50s documenting his employment history with IRS confirm the agency’s description of his employment history, we conclude the agency’s report of his employment history is accurate.

The claimant was designated FLSA exempt when he occupied the Revenue Officer, GS-1169-9, position from September 27, 1987, to January 2, 1988, and when he occupied the Criminal Investigator, GS-1811-11, position from March 8, 1990, to October 3, 1992.  The claimant’s SF-50 documenting his January 28, 1990, promotion to Criminal Investigator, GS-11, shows the position was designated FLSA nonexempt at the time.  However, an SF-50 dated March 8, 1990, shows a change in data element for the GS-11 position from FLSA nonexempt to exempt.  The agency advised OPM in its June 14, 2017, letter that:

Upon review of all available information, Mr. Marks was improperly coded as FLSA exempt during his time as a Revenue Officers [sic] at the Grade 09 as well as Criminal Investigators at the Grade 07, 09, and 11.  It appears from his personnel records that he was improperly coded from 9/27/1987 to 1/3/1988 and again from 3/8/1990 to 10/3/1992.  He was properly coded during the remainder of the claim period.

Based on careful review of the record, we concur with the agency’s determination.  The claimant is requesting compensation, less his active duty military service time,[1] for work performed from September 14, 1986, to October 3, 1992.  Therefore, IRS would have been required to compensate the claimant under the overtime provisions of subpart E of part 551 of 5 CFR for this 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 (September 14, 1986, to October 3, 1992) is covered.

The agency states in its June 14, 2017, letter to OPM and our review of his SF-50s shows he was designated nonexempt from the FLSA as a Revenue Officer, GS-1169-7, from September 14, 1986, to September 26, 1987; as a Criminal Investigator, GS-1811-7/9 from January 3, 1988, to January 27, 1990; and as a Criminal Investigator, GS-1811-11 from January 28, 1990, to March 7, 1990.  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 these periods, i.e., from September 14, 1986, to September 26, 1987; from January 3, 1988, to January 27, 1990; and from January 28, 1990, to March 7, 1990.

Decision

The claimant’s work is nonexempt (i.e., covered by the overtime pay provisions of the FLSA), 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 September 27, 1987, to January 2, 1988, and from March 8, 1990, to October 3, 1992, less his active duty military service time from February 20, 1991, to May 31, 1991.  Since his previous FLSA settlement was for a time period subsequent to October 3, 1992, it is 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.[2]  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’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 20, 1991, to May 31, 1991.  The agency provided documents from his official personnel folder, including orders to report to active duty for training on February 4, 1991, and an SF-50 identifying a return to duty effective June 2, 1991.  Because the DD Form 214 is the official military record for the period of his active duty, for purposes of this claim we must assume that document is accurate and accept it as the definitive record of his military duty during this claim period.

[2]The agency’s overtime and interest calculations must account for the claimant’s prior receipt of administratively uncontrollable overtime, as reported by the agency, 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/.

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