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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

Larry E. Hunter
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-1811-12-22

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

06/05/2017


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 March 15, 1995, 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-1811-12, 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.

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 August 22, 1990 to November 19, 1990” 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.  This period includes August 2, 1985 to May 9, 1987, less Mr. Hunter’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 August 2, 1985, to May 9, 1987, 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.  In this case, the entire claim period (August 2, 1985, to May 9, 1987) is covered.

B & L stated in its claim request to OPM that the claimant occupied a Criminal Investigator, GS-1811-12, position with USCS from August 2, 1985, to January 3, 1987, and a Mail and File Clerk, GS-305-3, position with USCS from January 4, 1987, to May 9, 1987.  The agency was unable to provide any Standard Form (SF) 50s documenting the claimant’s employment with USCS.[2]  At OPM’s request to provide SF-50s relevant to the claim period, the claimant submitted an SF-50 for the within-grade increase (WGI) of his GS-12 criminal investigator position effective May 11, 1986.  The SF-50 also shows the position was designated exempt from the FLSA at that time.  No other SF-50s were provided to show he occupied the GS-12 criminal investigator position prior or subsequent to the May 11, 1986, pay action.  His completed SF-2801, Application for Immediate Retirement (Civil Service Retirement System), which we obtained from OPM’s Retirement Operations Center-Boyers, states he had been continuously employed with USCS from March 27, 1978, to October 3, 1999.  His retirement records listing his service history, including action types and effective dates, show his May 11, 1986, WGI action.  Prior to the WGI action, the records show he had been promoted (presumably to the GS-12 criminal investigator position) on May 16, 1982, and occupied that position until he was promoted again on May 10, 1987.  The retirement records document no actions such as a change to lower grade during the period of time he would have occupied a GS-3 mail and file clerk position.  Absent an assertion to the contrary, we must conclude the claimant occupied the GS-12 criminal investigator position from August 2, 1985, to May 9, 1987.[3]

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 August 2, 1985, to May 9, 1987.  Since his active duty military service time was for a time period subsequent to May 9, 1987, 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).  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] The claimant’s “Reserve Orders and Pay Voucher” included with his claim shows he was called to report for temporary active duty from August 22, 1990, to November 19, 1990.

[2] The National Personnel Records Center could not locate the claimant’s archived Official Personnel Folder. 

[3] By email dated May 16, 2017, B & L stated that “Mr. Hunter’s claim is for the period August 2, 1985 through May 9, 1987” and advised that he “was promoted to a GM-13 supervisor position on March 10, 1987 and we are not pursuing a claim for his GM-13 supervisor time.”  We conclude B & L intended to state the claimant was promoted to a GM-13 supervisory position on May 10, 1987 (the documented promotion date in his retirement records), since the stated date would fall within rather than outside the claim period being requested.

[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-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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