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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

John F. Hein
Criminal Investigator
GS-1811-12/13
U.S. Customs Service
Position should be nonexempt, thus due FLSA overtime pay
Nonexempt; potentially due FLSA overtime pay
F-1811-13-22

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

06/07/2017


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 17, 1990, and subsequently with OPM on October 21, 1999, challenging his exemption status under the FLSA when he was employed as a Criminal Investigator, GS-1811, at the GS-12 and 13 levels with the Office of the Special Agent-in-Charge (SAC), Office of Enforcement, U.S. Customs Service (USCS), now integrated into the Department of Homeland Security (DHS), in Miami, Florida.  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 23, 1988, to the pay period ending June 1, 1991, 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 Air Force Reserve “from approximately October 21, 1990, to November 2, 1990”[1] 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 9, 1988, less Mr. Hein’s active duty military service time, for which he does not seek recovery.”[2]

In reaching our FLSA claim decision, we have carefully reviewed all information furnished by the claimant’s representative and the agency, including information obtained from a telephonic interview with the claimant, who retired from Federal civilian service on November 3, 2001.  We also interviewed by telephone a former supervisor (now retired) who supervised the claimant during part of the claim period. 

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 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.  Additionally, 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 and have not separately addressed the GS-12 work in this decision.  The claimant is requesting compensation, less his active duty military service time, for work performed while he was a Criminal Investigator, GS-1811-12, with USCS from March 30, 1986, to January 30, 1988.[3]  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, in addition to the period he was employed by USCS after the commencement of the Gulf War.  In this case, because the period listed above falls outside the time covered by the claimant’s DOJ settlement agreement, it is fully covered. 

The claimant is also requesting compensation for work performed while he was a Criminal Investigator, GS-1811-13, from January 31, 1988, to April 9, 1988.  The agency references a standard GS-13 position description (PD) (#T046034) to which the claimant was assigned at the time of this claim to describe the work of GS-13 criminal investigators.  The agency states that these Senior Special Agents were expected to take on a leadership role in coordinating and directing investigations, providing training, and advising and representing USCS management on “critical law enforcement programs involving highly important functions that influence accomplishment of objectives of the entire Customs Service” as described in the PD.  The agency states that “[i]f the Senior Special Agents’ position description is accurate, they could potentially qualify as exempt administrative employees.”  However, the agency indicates that “[a]lthough the duties described above would likely qualify as exempt work, the GS-1811-13 position description also includes a number of non-exempt duties.”  The agency notes these non-exempt duties include conducting “highly complex and sensitive criminal investigations.”  Given their assessment of the PD and the need to clarify the actual duties performed by GS-13 Senior Special Agent claimants, the agency defers to OPM to resolve their exemption status. 

Evaluation

Period of the claim

While we have not specifically adjudicated the claimant’s GS-12 criminal investigator work with USCS, the overall claim period and our analysis relevant to this FLSA decision covers both that period and the time he worked as a GS-13 criminal investigator covering March 30, 1986, to April 9, 1988. 

Position information 

During the claim period covering January 31, 1988, to April 9, 1988, the claimant was assigned as a Criminal Investigator, GS-1811-13, with the Office of the SAC, in Miami, Florida.  At that time, he was detailed to work with the Florida Joint Task Group (FJTG) headed by the U.S. Drug Enforcement Administration (DEA) located in Dade County, Florida, to investigate the smuggling of illegal substances by criminal organizations into the U.S. through several local airports including the Miami International Airport and Tamiami Airport which is a terminal for small planes.  The FJTG office was divided into several work groups comprised of both DEA and USCS criminal investigators who reported to their respective agency group supervisors in the office.  During this detail the claimant worked in both the passenger and cargo groups.  He initiated and conducted criminal investigations dealing with the smuggling of illegal drugs on airline passengers, in their luggage, or in airplane cargo into the U.S. from foreign countries (e.g., Columbia, Venezuela, Bolivia, Panama, and Jamaica).  Most cases were initiated from information provided by USCS inspectors working at the airports who alerted the claimant of suspicious passenger behavior, baggage, or cargo.  Occasionally, the claimant was also provided with information directly from DEA offices in the foreign countries regarding suspected drug smugglers traveling to the U.S. 

In cases involving suspected drug smuggling by passengers, the claimant interviewed suspects to determine their point-of-origin, where drugs were to be delivered (e.g., particular hotels or houses), and tried to gather information identifying the narcotics smuggling and distribution organization.  When passengers were willing to cooperate with the claimant in pursuing the investigation, he set up a “controlled delivery” allowing passengers to complete their delivery of smuggled narcotics to the appointed destination.  The individual was kept under surveillance to gather more information on the drug organization and expand the investigation.  If passengers were unwilling to cooperate, the claimant presented them with seized evidence found either on their person or in luggage and arrested them for narcotics smuggling under title 21, United States Code.  Suspects were arraigned by an Assistant U.S. Attorney for the Southern District of Florida before a U.S. Magistrate and, depending on their plea, held for trial or sentencing.  In cases of narcotics smuggled in airline cargo (e.g., 55 gallon barrels of fruit, boxes of fresh flowers), the claimant participated with other investigators in a “controlled delivery” including surveillance of the pick-up and delivery of cargo, and gathered information through various records to identity conspirators, suspects, and criminal organizations in order to develop the investigation. 

In performing criminal investigations, the claimant’s work involved interviewing witnesses and suspects, conducting lawful searches and seizures of smuggled narcotics, securing and serving court-issued search warrants and subpoenas, carrying out surveillance and wire-tapping, and arresting alleged violators.  He developed suspect profiles, inspected records and documents, and gathered evidence to demonstrate to the local Assistant U.S. Attorney that the elements of a crime had been committed.  He was sometimes called upon to testify at the trial of suspects in a U.S. Court regarding the gathering of evidence, explain the type of illegal substance, and describe the chronology and elements of his investigation.  Knowledge required by the position included that of the laws, statutes, and regulations on which USCS enforcement authorities were based, and specific case law regarding seizures, civil rights, and preservation of evidence.  The claimant worked under the general direction and policy guidance of his group manager at the FJTG.  The claimant independently investigated his cases and provided periodic status reports to his supervisor on case progress, and submitted comprehensive Reports of Investigation (ROI) to him at the conclusion of each case.  These narrative reports tracked the entire investigation and contained multiple exhibits and attachments supporting factual determinations that a crime had been committed.

Evaluation of FLSA Coverage  

Under the provisions of 5 CFR 551.706, OPM determines the facts necessary to adjudicate a claim.  To determine whether the claimant is owed overtime pay under the FLSA for the periods in which he served as a GS-13 criminal investigator, we must first determine whether the work performed during the claim period is exempt or nonexempt from the overtime pay provisions of the FLSA.  Sections 551.201 and 551.202 of title 5, CFR, require an employing agency to designate an employee FLSA exempt only when the agency correctly determines that the employee meets one or more of the exemption criteria.  In all exemption determinations, the agency must observe the following principles:  (a) Each employee is presumed to be FLSA nonexempt. (b) Exemption criteria must be narrowly construed to apply only to those employees who are clearly within the terms and spirit of the exemption. (c) The burden of proof rests with the agency that asserts the exemption. (d) If there is a reasonable doubt as to whether an employee meets the criteria for exemption, the employee should be designated FLSA nonexempt. (e) The designation of a position’s FLSA status ultimately rests on the duties actually performed by the employee. 

Because the claim period covers two months in 1988, we must apply the FLSA regulations of 5 CFR Part 551 (1984) in effect during the period of the claim.  However, in response to a court decision, OPM amended these regulations in 1988 by eliminating the presumption that employees in positions classified at GS-11 and above were exempt from the overtime pay provisions of the FLSA, and changed the criteria for determining whether a Federal employee was an executive under the FLSA.  See 53 Fed. Reg. 1739-01 (January 22, 1988).  The claimant believes his position should have been designated as non-exempt from the overtime pay provisions of the FLSA and thus not covered by the executive, administrative, or professional exemptions as detailed in 5 CFR 551.204, 5 CFR 551.205, and 5 CFR 551.206 of those regulations. 

The agency indicates that due to the age of the claim, it could provide only limited information regarding the claimant’s employment with USCS during the claim period.  In its October 28, 2016, letter to OPM, the agency conceded that based on comparison to the administrative exemption criteria in effect during the claim period, the claimant’s GS-12 criminal investigator position should be designated as FLSA non-exempt.  However, the agency made no final determination on whether the claimant’s GS-13 criminal investigator position met the administrative exemption criteria.  Based on careful review of the record and the claimant’s assigned duties and responsibilities during the claim period, we conclude the claimant’s position did not meet the professional or executive exemption criteria, and the claimant does not disagree.  Therefore, we have evaluated his position as a GS-13 criminal investigator solely against the administrative exemption criteria.  

Administrative Exemption Criteria

The regulation under 5 CFR 551.205 describes the administrative exemption criteria as follows: 

An administrative employee is an advisor, assistant, or representative of management, or a specialist in a management or general business function or supporting service, who meets all of the following criteria: 

(a)The employee’s primary duty consists of work that:  (1) significantly affects the formulation or execution of management policies or programs; or (2) involves general management or business functions or supporting services of substantial importance to the organization serviced; or (3) involves substantial participation in the executive or administrative functions of a management official.

(b) The employee performs office or other predominantly non-manual work which is:  (1) intellectual and varied in nature; or (2) of a specialized or technical nature that requires considerable special training, experience, and knowledge. 

(c) The employee must frequently exercise discretion and independent judgment, under only general supervision, in performing the normal day-to-day work. 

Although no longer in effect, the definitions of terms used in the FLSA exemption criteria as contained in the Attachment to Federal Personnel Manual (FPM) Letter 551-7, dated July 1, 1975, provide useful guidance in applying in particular the administrative exemption criteria in 5 CFR 551.205 discussed above.  The meaning of terms relevant to the criteria follows.

(a) Primary duty.  As a general rule, the primary duty is that which constitutes the major part (over 50%) of the employee’s work. 

(b) Formulation or execution of management policies or programs.  Management policies and programs range from broad national goals that are expressed in statutes or Executive Orders to specific objectives of a small field office.  Employees may actually make policy decisions or participate indirectly, through developing proposals that are acted on by others.  Employees who significantly affect the execution of management policies or programs typically are those whose work involves obtaining compliance with such policies by other individuals or organizations, within or outside of the Federal Government, or making significant determinations in furtherance of the operation of programs and accomplishment of program objectives.  Administrative employees engaged in formulation or execution of management policies or programs typically perform one or more phases of program management (i.e., planning, developing, promoting, coordinating, controlling, or evaluating operating programs of the employing organization or of other organizations subject to regulation or other controls).  Some of these employees are classified in occupations that reflect these functions (e.g., program analyst) but many are classified in subject matter occupations. 

(c) General management, business, or supporting services.  This element brings into the administrative category a wide variety of specialists who provide general management, business, or other supporting services as distinguished from production functions.  Administrative employees in this category provide support to line managers by:  (1) providing expert advice in specialized subject matter fields, such as that provided by management consultants or systems analysts; (2) assuming facets of the overall management function, such as safety management, personnel management, or budgeting and financial management; (3) representing management in such business functions as negotiating and administering contracts, determining acceptability of goods or services, or authorizing payments; or (4) providing supporting services, such as automated data processing, communications, or procurement and distribution of supplies.  To warrant exemption, each employee’s work must involve substantial discretion on matters of enough importance that the employee’s actions and decisions have a noticeable impact on the effectiveness of the organization advised, represented, or serviced. 

(d) Participation in the functions of a management official.  This element includes those employees (variously identified as secretaries, administrative or executive assistants, aids, etc.) who participate in portions of the managerial or administrative functions of a supervisor whose scope of responsibility precludes personally attending to all aspects of the work.  To support exemption, such assistants must be delegated and exercise substantial authority to act for the supervisor in the absence of specific instructions or procedures.  Typically these employees do not have technical knowledge of the substantive work under the supervisor’s jurisdiction.  Their primary knowledge is of administrative procedures, organizational relationships, and the policies, plans, interests and views of the supervisor.

(e) Work of an intellectual nature.  Work requiring general intellectual abilities, such as perceptiveness, analytical reasoning, perspective, and judgment applied to a variety of subject matter fields, or work involving mental processes which involve substantial judgment based on considering, selecting, adapting, and applying principles to numerous variables.  The employee cannot rely on standardized application of established procedures or precedents, but must recognize and evaluate the effect of a continual variety of conditions or requirements in selecting, adapting, or innovating techniques and procedures, interpreting findings, and selecting and recommending the “best” alternative from among a broad range of possible actions. 

(f) Work of a specialized or technical nature.  Work which requires substantial specialized knowledge of a complex subject matter and of the principles, techniques, practices, and procedures associated with that subject matter field. This knowledge characteristically is acquired through considerable on-the-job training and experience in the specialized subject matter field, as distinguished from professional knowledge characteristically acquired through specialized academic education. 

(g) Discretion and independent judgment.  The exercise of discretion and independent judgment involves:  (1) comparing and evaluating possible courses of conduct, and (2) interpreting results or implications, and independently taking action or making a decision after considering the various possibilities.  However, firm commitments or final decisions are not necessary to support exemption.  The “decisions” made as a result of the exercise of independent judgment may consist of recommendations for action rather than the actual taking of action.  The fact that an employee’s decisions are subject to review, and that on occasion the decisions are revised or reversed after review, does not mean that the employee is not exercising discretion and independent judgment of the level required for exemption. 

The FPM letter lists three elements involved in the evaluation of discretion and independent judgment:  (1) The work must involve sufficient variables as to regularly require discretion and judgment in determining the approaches and techniques to be used, and in evaluating results.  This precludes exempting employees who perform work primarily requiring skill and applying standardized techniques or knowledge of established procedures, precedents, or other guidelines which specifically govern the employee’s action.  (2) The employee must have authority to make such considerations during the course of assignment.  This precludes exempting trainees who are in a line of work which requires discretion but who have not been given authority to decide discretionary matters independently.  (3) The decisions made independently must be significant.  Although this term is not so restrictive as to include only the kinds of decisions made by employees who formulate policies or exercise broad commitment authority, it does not extend to the kinds of decisions that affect only the procedural details of the employee’s own work, or to such matters as deciding whether a situation does or does not conform to clearly applicable criteria. 

The claimant’s work in doing criminal investigations did not meet paragraph (a) of the administrative exemption criteria.  His primary duty was not to serve as an advisor, assistant, or representative of agency management, or as a specialist in a management or general business function or supporting service.  As a criminal investigator, the claimant spent all of his time investigating criminal violations of various laws governing the smuggling of illegal drugs and substances into the U.S.  

The claimant did not meet the requirements of paragraph (a)(1) of the administrative exemption criteria.  Contrary to the agency’s assertion that GS-13 Special Agents advised management officials on “critical law enforcement programs involving highly important functions that influence accomplishment of objectives of the entire Customs Service,” we found the claimant’s primary duties did not significantly affect the formulation or execution of management policies or programs.  As a field office employee assigned to the Miami SAC and FJTG offices performing the line investigative work of the Office of Enforcement, USCS, he did not make policy decisions or participate indirectly through developing proposals that were acted on by others.  In addition, unlike administrative employees he did not perform any phases of program management such as planning, controlling, or evaluating operating programs. 

The claimant did not meet the requirements of paragraph (a)(2) of the administrative exemption criteria.  The claimant’s primary duties did not involve general management or business functions or supporting services of substantial importance to the organization serviced.  Rather, the claimant performed the line law enforcement work of the USCS.  His tasks did not include providing general management, business, or other supporting services to line managers.  He was not involved in systems analysis or general management support functions, e.g., safety management, personnel management, or budgeting and financial management.  The claimant did not represent agency management in negotiating and administering contracts for goods or services, and did not provide support services, e.g., automated data processing, communications, procurement and distribution of supplies. 

The claimant did not meet the requirements of paragraph (a)(3) of the administrative exemption criteria.  His assignments did not involve substantial participation in the executive or administrative functions of a management official.  He did not act as a secretary or administrative assistant participating in portions of the managerial or administrative functions of a supervisor, with no requirement for technical knowledge of the substantive work under the supervisor’s jurisdiction.  Unlike such employees, the claimant independently performed the line work of the USCS’s Office of Enforcement in a field office requiring technical knowledge of substantive law enforcement and criminal investigative work relating to drug smuggling.  

Under paragraph (b)(1) of the administrative exemption criteria, the claimant performed office non-manual work which was intellectual and varied in nature.  In carrying out a variety of criminal investigations concerning violations of numerous laws and regulations administered by the USCS, the claimant applied perceptiveness, analytical reasoning, and judgment based on considering, selecting, adapting, and applying criminal investigative principles to numerous variables.  In doing so, he determined the best approach to each case and investigative techniques needed to substantiate it.  These included interviews of subjects and witnesses, and reviews of passenger travel and phone records, cargo manifests, and business and bank records, to develop and gather the most supportable evidence for presentation to an Assistant U.S. Attorney in order to identify the violation and assess the scope of the illegal activity.  While as a law enforcement agent he was required to abide by specific laws and USCS and DEA procedures governing the methods and collection of evidence and circumstances supporting seizures and arrests, in developing criminal cases he considered the effect of alternative investigative methods, adapting techniques and procedures as appropriate to the nature and extent of the violation.  

Under paragraph (b)(2) of the administrative exemption criteria, the claimant’s work as a senior criminal investigator was highly specialized and technical in nature, requiring considerable special training, experience, and knowledge.  He possessed and regularly applied specialized knowledge of the complex subject-matter field of Federal criminal investigation, including the laws, principles, techniques, practices, and investigative procedures associated with that field.  This knowledge was acquired through regular and extensive formal USCS in-service training, considerable on-the-job training and experience with the Office of Enforcement, training seminars presented by the DEA, and attendance at training while employed at previous agencies, i.e., the Internal Revenue Service, Department of Treasury. 

Under paragraph (c) of the administrative exemption criteria, the claimant frequently exercised discretion and independent judgment in performing investigations covering Dade County, under only general supervision in carrying out his normal day-to-day work.  In doing so, he developed and expanded investigations, comparing and evaluating possible courses of action and necessary investigative techniques to efficiently utilize resources and achieve the goals of each investigation in proving that the elements of a crime had been committed.  He interpreted results gathered from investigative lead information (e.g., suspects, witnesses, phone, travel, cargo shipment, bank, and business records) and made decisions on subsequent investigative steps after considering the various possibilities.  Since many of his cases involved numerous variables in terms of the investigative procedures needed because of the scope and complexity of the violation, he regularly applied discretion and judgment in determining approaches, techniques, and in evaluating results.  As a GS-13 criminal investigator, the claimant had full authority to make such determinations during the course of investigations, consulting with his group supervisor only on the status of cases or need for additional resources.  His investigative decisions were more significant than just making decisions on procedural details, or deciding whether a situation conformed to clearly applicable criteria.  Although he had to follow specific legal requirements for gathering and admitting evidence, requesting search warrants and subpoenas, and worked closely with the Assistant U.S. Attorney in preparing evidence for prosecution, he independently made decisions on significant matters affecting case development.  This included identifying the most effective investigative techniques and processes to build a thorough and comprehensive investigation supportable before a Federal court. 

Although the claimant’s position met paragraphs (b) and (c) of the administrative exemption criteria, it failed to meet all of the required exemption criteria because it did not meet paragraph (a) of the criteria.  Therefore, we conclude the claimant did not meet the administrative exemption. 

Decision on FLSA Coverage

The claimant’s work was 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 March 30, 1986, to April 9, 1988.  Since both the claimant’s active duty military service and his previous FLSA settlement were for time periods subsequent to April 9, 1988, 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 other 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] These dates are verified in the claimant’s Certificate of Release or Discharge from Active Duty (DD 214) contained in the record. 

[2] The claimant was employed with USCS from March 30, 1986, to April 9, 1988.

[3] These dates were verified in our review of the claimant’s retirement records referenced below.  The claimant’s employment history provided by B & L in the original claim indicates he was employed as a Data Transcriber, GS-356-2, from January 4, 1987, to January 2, 1988.  However, in a March 2, 2016, email to OPM the representative corrected the record indicating the claimant was a GS-12 criminal investigator during that period, and attached a copy of a Notification of Personnel Action (SF-50) and an Annual Performance Plan and Appraisal Form 188 to document his position at the time.  In addition, based on our review of the claimant’s retirement records, which we obtained from OPM’s Retirement Operations Center-Boyers, we found no evidence he had a significant loss in pay from a GS-12 to GS-2 during that period.  Moreover, the claimant stated he never served in such a position.  Therefore, we conclude the information in the original claim was in error.

[4] The agency’s overtime and interest calculations must account for the claimant’s prior receipt of administratively uncontrollable overtime documented as “AUO” on his SF- 50 during the claim period, using the principles contained with 29 U.S.C 207(k), 5 CFR 551.501(a)(1) and (5), and 5 CFR 551.541(a).  See OPM’s Fact Sheet on the topic at 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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