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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

Harold B. Gay
Criminal Investigator
GS-1811-12
U.S. Customs Service
Position should be nonexempt, thus due FLSA overtime pay
Nonexempt; potentially due FLSA overtime pay
F-1811-12-21

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 (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 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 April 10, 1992, and subsequently with OPM on September 13, 1999, challenging his exemption status under the FLSA when he was employed as a Criminal Investigator, GS-1811-12, 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 April 10, 1990, to the pay period ending September 4, 1993, 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/Army National Guard “from approximately September 20, 1990 to June 16, 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 August 2, 1985 to April 7, 1990,[1] less Mr. Gay’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, 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.

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). 

Based on careful review of the record, we concur with the agency’s determination.  The claimant is requesting compensation for work performed from November 24, 1985, to April 7, 1990, less his active duty military service time.[2]  Therefore, USCS would have been required to compensate the claimant under the overtime 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 (November 24, 1985, to April 7, 1990) is covered.

B & L states in its claim request to OPM that the claimant occupied a Tax Examiner, GS-592-5, position with USCS from January 4, 1987, to January 2, 1988.  However, in a March 24, 2017, email to OPM, B & L states the claimant “has always been an 1811.”  The agency was unable to provide any Standard Form (SF) 50s documenting the claimant’s employment with USCS.  At OPM’s request to provide SF-50s relevant to the claim period, the claimant submitted an SF-50 showing his transfer to the Criminal Investigator, GS-1811-12, position with USCS effective November 24, 1985.  No subsequent SF-50s were provided to show he continued occupying the position until the April 7, 1990, end of the claim period.  However, in his consent form to be represented by B & L, signed on March 9, 1992, the claimant indicates he occupied a GS-12 “special agent” position with USCS from 1986 to 1991. 

Since neither the agency nor the claimant was able to provide us with SF-50s to verify his USCS employment throughout the entire claim period, we obtained his retirement records from OPM’s Retirement Operations Center in Boyers, Pennsylvania.  His completed SF-2801, Application for Immediate Retirement (Civil Service Retirement System), states he had been continuously employed with USCS from November 24, 1985, to December 8, 1990.  Moreover, the accompanying retirement records supplementing his application list his service history including action types and effective dates.  The retirement records identify his November 24, 1985, transfer to the USCS position, in addition to subsequent pay adjustments, realignments, and reassignments until he was placed on leave without pay status on September 20, 1990, when he served in the military during the Gulf War.  The retirement records document no actions such as changes to lower grades during the period of time he would have occupied the GS-5 tax examiner position.  Furthermore, the retirement records show he was receiving “25% prem pay” (i.e., administratively uncontrollable overtime (AUO)) for the entire claim period.  Although the grant of AUO is not restricted to criminal investigators, it is unlikely that a GS-5 tax examiner position would meet the requirements for approval of AUO pay involving substantial amounts of irregular, unscheduled overtime work which cannot be controlled administratively.  Absent an assertion to the contrary, we must conclude the claimant occupied a GS-12 criminal investigator position from November 24, 1985, to April 7, 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 improperly designated as FLSA exempt, i.e., from November 24, 1985, to April 7, 1990.  Since both his active duty military service time and his previous FLSA settlement were for time periods subsequent to April 7, 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).  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.[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 with USCS from November 24, 1985, to April 7, 1990.

[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 September 20, 1990, to June 16, 1991.

[3] The agency’s overtime and interest calculations must account for the claimant’s prior receipt of AUO, documented as “premium pay” on his SF-50 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/.

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