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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

Estate of Wadie D. Crawford
Criminal Investigator
Drug Enforcement Administration
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 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.


On December 4, 2012, the U.S. Office of Personnel Management (OPM) received a letter dated December 4, 2012, from the Law Offices of Bernstein & Lipsett, P.C. (B & L), the duly appointed representative of the claimant’s estate, 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 28, 1994, 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-9, 11, and 12 levels with the Drug Enforcement Administration (DEA).  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 March 7, 1992, to the pay period ending October 29, 1994, subject to the two-year statute of limitations for FLSA claims under 29 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 Air Force Reserve in connection with Operation Desert Shield/Storm and, citing the provisions of 31 U.S.C. § 3702(b)(2), asserts: “The Estate of Mr. Crawford is entitled to retroactive back pay and interest…for the period he was employed by Customs and DEA prior to the commencement of the Gulf War on August 2, 1990, in addition to the period he was employed by DEA after the commencement of the Gulf War, up to the date he recovered under previous FLSA settlements.  This period includes August 4, 1985 to February 22, 1992,[1] less Mr. Crawford’s active duty service time, for which his estate 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, United States Code (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. 


Applicability of the FLSA

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 DEA regarding this FLSA claim.  By letter submitted on May 27, 2016, DEA advised OPM based on their fact-finding that the claimant:

…was classified as exempt from the Fair Labor Standards Act (FLSA) during the period of his claim with the Drug Enforcement Administration (DEA) from July 2, 1989 through February 2, 1992[2].  Upon his entry on duty with the Drug Enforcement Administration, he was assigned to the Miami Field Division – Office of the SAC.  The classification at the time was based on 5CFR 551.207 for the Professional Exemption ….


At this grade (GS-11), investigators typically “work under the general administrative and technical supervision of the Group Supervisor who makes initial assignments or gives authorization for assignments initiated by the agent; renders instructions on case development and expects the agent to use initiative and resourcefulness in developing and following leads without periodic supervisory guidance.[”]

During the period of SA Crawford’s claim the Special Agent position was classified as exempt from FLSA at all grade levels.

Based on the 5 CFR 551.206 and 551.207, the Administrative and Professional exemption criteria do not apply to the traditional non-supervisory criminal investigator whose primary duties do not consist of the performance of office, or non-manual work directly related to the management or general business operations of the organization.  General criminal investigator work follows “well-established techniques and procedures which may have been catalogued and described in manuals or other sources.”  The criminal investigators rely on techniques and skills acquired through specialized training or experience.  Even though they may exercise some independent judgment in the performance of their duties, this judgment is exercised within closely prescribed limits.

Based on our review, we conclude that the administrative or professional exemption criteria should not have been applied to criminal investigators at the GS-7 through GS-13 grade levels and should have been treated as FLSA non-exempt.      

Based on careful review of the record, we concur with the agency’s determination.  The claimant’s estate is requesting compensation for work he performed from July 2, 1989, to February 22, 1992, when he was employed with DEA, less his active duty military service time.[3]  Therefore, DEA 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., covering claims that accrued 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 applicable to this decision (July 2, 1989, to February 22, 1992) is covered. 


The claimant’s work is FLSA nonexempt (i.e., covered by FLSA overtime provisions), and his estate is entitled to compensation for all overtime hours worked at the FLSA overtime rate for the period of the claim he worked for DEA and was designated as FLSA exempt; i.e., from July 2, 1989, to February 22, 1992, less his active duty military service time.  Since his previous FLSA settlement was for a time period subsequent to February 22, 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’s estate 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 other sources of information available, including witnesses, before a determination is made as to whether the estate, on the claimant’s behalf, 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’s estate believes to be incorrectly computed, his estate may file a new FLSA claim with this office. 

[1] The claimant was employed with DEA from July 2, 1989, to February 22, 1992.

[2]  The agency identified erroneous dates as the claim period.  The claim period is July 2, 1989, when the claimant began his employment with DEA, to February 22, 1992.

[3] The claimant’s Certificate of Release or Discharge from Active Duty, DD Form 214, submitted by the claimant’s representative, states in Block 18, “Remarks,” that he “served 01 Feb 91 to 21 Apr 91 in Operation Desert Shield/Storm.”  However, Block 12, “Record of Service,” which would show the total active duty time for the period, is cut off.  In the absence of another copy, the agency should rely on the claimant’s payroll records for the claim period to determine when he was in a pay status for purposes of any potential back pay owed under the FLSA.

[4]The agency’s overtime and interest calculations must account for the claimant’s prior receipt of administratively uncontrollable overtime, documented as 25 percent “premium” on his Standard Form 50s documenting his employment during the claim period, using the principles contained within 29 U.S.C. 207(k), 5 C.F.R. 551.501(a)(1) and (5), and 5 C.F.R. 551.541(a).  OPM’s Fact Sheet on the topic can be found here:

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