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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 Mercer
Criminal Investigator
Boston Group VI
Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE)
U.S. Department of Justice
Boston, Massachusetts
Overtime pay for overtime work scheduled in advance of the administrative work week
Position is FLSA exempt, thus no FLSA overtime pay is due

Robert D. Hendler
Classification and Pay Claims
Program Manager
Merit System Audit 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 U.S. Office of Personnel Management (OPM) administers the Act.  There is no further right of administrative appeal.  This decision is subject to discretionary review only under conditions specified in 5 CFR 551.708 (address provided in 5 CFR 551.710).  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with this decision.  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.


The claimant requests overtime pay under the Fair Labor Standards Act (FLSA) for work he asserts he was assigned by his agency in advance of the administrative work week.  The claimant occupies the position of Criminal Investigator, GS-1811-13, in Boston Group VI, BATFE, U.S. Department of Justice, in Boston, Massachusetts.  We have accepted and decided this claim under section 4(f) of the FLSA of 1938, as amended, codified at section 204(f) of title 29, United States Code (U.S.C).

We received the claim on October 1, 2009, the agency’s administrative report (AAR) on December 8, 2009, and the claimant’s comments on the AAR on February 8, 2010.  In reaching our decision, we have carefully reviewed all information furnished by the claimant and his agency.


The claimant states he and other agents (Criminal Investigators) in Boston Group VI are participating in an ongoing investigation that requires weekend and weekday work outside Massachusetts with travel as well as shifts ranging from 12 to 20 hours a day.  He states:  “We/I have been assigned to work these shifts in advance of the current pay period/administrative week” without receiving overtime compensation.  The claimant provided four dates and the hours he worked on each date.

General Issues

Section 551.702 of title 5, Code of Federal Regulations, provides that all FLSA pay claims filed after June 30, 1994, are subject to a two-year statute of limitations (three years for willful violations).  A claimant must submit a written claim to either the employing agency or to OPM in order to preserve the claim period.  The date the agency or OPM receives the claim is the date which determines the period of possible back pay entitlement.  The claimant’s request was received by OPM on October   1, 2009, and the claim period is preserved as of this date. 

Evaluation of FLSA Coverage

The FLSA regulations currently in effect were issued on September 17, 2007, and effective October 17, 2007.  Since the claim period in the instant case extends back to October 1, 2007, the claim is covered by both the previous regulations (issued in 1997) for the period prior to October 17, 2007, and the current regulations for the period after that date. 

Section 551.202 of title 5, Code of Federal Regulations (CFR), requires an employing agency must designate an employee FLSA exempt only when the agency correctly determines the employee meets the requirements of one or more of the exemption criteria.  In all exemption determinations, the agency must observe the following principles:  Each employee is presumed to be FLSA nonexempt unless the employing agency correctly determines that the employee clearly meets one or more of the exemption criteria.  Exemption criteria must be narrowly construed to apply only to those employees who are clearly within the terms and spirit of the exemption.  The burden of proof rests with the agency that asserts the exemption.  If there is a reasonable doubt as to whether an employee meets the criteria for exemption, the employee should be designated FLSA nonexempt.  The designation of a position’s FLSA status ultimately rests on the duties actually performed by the employee.

The agency determined the claimant’s work is exempt from coverage under the FLSA based on the provisions of 5 CFR 551.213(a); i.e., the claimant, as a criminal investigator receiving availability pay under 5 CFR 550.181(a) as provided for in 29 U.S.C. § 213(a)(16), is exempt from the hours of work and overtime pay provisions of the FLSA.  The wording of 5 CFR 551.213 and 213(a) is the same for both the current and prior version of the regulations as previously discussed in this decision.

In his February 8, 2010, response to the AAR, the claimant asserts the “FLSA applies to ATF Agents even though they receive LEAP,” relying on Federal Air Marshals (FAM) FAM 1 et al., v. U.S., No. 06-233C Fed. Cl. (November 5, 2008), because:  “The Court concluded the LEAP provisions did not exempt law enforcement agents for [sic] the FLSA overtime requirements.  Thus, ATF [BATFE] agents, who receive LEAP under the same statutory provision, are not exempt from the FLSA overtime provisions.”

As noted by the court, 29 U.S.C. §§ 213(a)(16) and (b)(30) statutorily exempt “a criminal investigator who is paid availability pay under section 5545a of title 5 [of the United States Code] ” from the minimum wage and overtime pay provisions of the FLSA.  Unlike the claimant, who occupies a Criminal Investigator, GS-1811-13, position, FAMs are not criminal investigators.  Instead, as discussed by the court, “FAMs are classified as law enforcement officers in the 1801 series (“General Inspection, Investigation and Compliance”).”  Therefore, Federal Air Marshals (FAM) FAM 1 et al., v. U.S., No. 06-233C Fed. Cl. (November 5, 2008), undermines the claimant’s assertion that he, as a criminal investigator, is covered by the overtime pay provisions of the FLSA.

The claimant states:

The purpose of LEAP is to compensate criminal investigators for myriad “unscheduled duty” we are often required to perform to carry out our mission.  “Unscheduled duty” consists of work performed by the agent outside his/her normal 40 hour workweek that is not regularly scheduled.  See OPM Availability Pay Fact Sheet  According to OPM, if an employee is receiving LEAP, that employee is entitled to receive “title 5 overtime pay…for the overtime scheduled in advance of the administrative workweek that is either in excess of 10 hours on a day containing part of the basic 40-hour workweek or on a day that does not include part of the basic 40-hour workweek.”

Thus, by the claimant’s own admission, any entitlement to overtime pay he may have for work scheduled in advance of the workweek flows from the premium pay provisions of title 5, U.S.C., (title 5 overtime pay) and not the FLSA.


The claimant is statutorily exempt from the overtime pay provisions of the FLSA.  Thus, his FLSA overtime pay claim must be denied.

Claims for title 5 overtime pay are subject to the Federal civilian compensation claim provisions of 31 U.S.C. § 3702(a)(2) and 5 CFR part 178.  Section 178.102 describes the procedures for submitting claims as well as the documentation that should accompany a claim.  Paragraph (a)(3) of section 178.102 specifies that this documentation should include a copy of the final written agency denial of the claim.  Therefore, paragraph (a)(3) denotes the claimant’s employing agency should have already reviewed and issued a decision on a claim before a claim is submitted to OPM.  Because the record before us does not show the claimant has submitted a signed, written claim to his agency as required by 31 U.S.C. § 3702(b)(1) and 5 CFR 178.102(a)) or has received a written claim denial from an agency official authorized to issue such a denial, this potential claim for overtime under the premium pay provisions of Title 5 of the United States Code is not yet ripe for OPM’s acceptance and adjudication.


The claimant is properly designated as FLSA exempt and is not entitled to overtime under the provisions of FLSA. 

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