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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

Mohamad N. Alkhatib
Lead Border Patrol Agent
Swanton Border Patrol Sector
Office of the Assistant Commissioner
Office of Border Patrol
Bureau of Customs and Border Protection
Department of Homeland Security
Swanton, Vermont
Overtime Pay

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 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.


On March 12, 2009, the U.S. Office of Personnel Management’s (OPM) Merit System Audit and Compliance received a Fair Labor Standards Act (FLSA) claim from the claimant related to his employment in a Lead Border Patrol Agent (LBPA), GS-1896-12, position at the Swanton Border Patrol Station (SBPS) in the Swanton Border Patrol Sector of what is now U.S. Customs and Border Protection (CBP), from December 28, 2003, to March 7, 2007.    We have accepted and decided this claim under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).

In reaching our FLSA decision, we have carefully considered all information furnished by the claimant and CBP, including the agency administrative report (AAR) which we received on July 22, 2009, and additional information we subsequently received from the agency on July 11, 2012, to clarify the record.

Nature of the Claim

The claimant states he was informed his former “peer and partner” with whom he worked had “filed an FLSA claim and received $17,000 in FLSA back pay” and “that LBPAs are currently receiving FLSA [overtime pay].”   The claimant states his “complaint is to challenge the claim that the LBPA position fell under the administrative exemption for FLSA” and he is filing this claim “because I strongly believe that I did qualify to receive FLSA [overtime pay] during my employment with the USBP [U.S. Border Patrol] in Swanton, Vermont.”  He states that since “your office determined that [former co-worker] was qualified to receive FLSA [overtime pay] and was awarded back pay of $17,000, I therefore believe that I am also qualified and should have received FLSA [overtime pay] and back pay.”


Period of the Claim

Section 551.702 of title 5, Code of Federal Regulations (CFR) 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 that determines the period of possible back pay entitlement.  The claimant did not indicate or provide documentation showing he had filed a claim with CBP.  OPM received the claimant’s request on March 12, 2009, and accordingly, the claim period is preserved as of that date.

Applicability of the FLSA 

To determine whether the claimant is owed overtime pay under the FLSA, the normal process is to first determine whether the work performed is exempt or nonexempt from the overtime pay provisions of the FLSA.  Contrary to the claimant’s assertions, OPM did not render a decision on the FLSA exemption status of the claimant’s former co-worker.  The AAR contains a February 23, 2007, memorandum from CBP’s Director, Compensation Programs and Policy Division, to OPM concerning the FLSA claim filed with OPM by the claimant’s former co-worker.  CBP advised that based on its review, it had changed the former co-worker’s exemption status to non-exempt and he would “be awarded back pay accordingly.” The AAR also contains a July 24, 2007, memorandum from the Chief, U.S. Border Patrol, to all Chief Patrol Agents that, “[a]fter studying the conclusions of a review of the Lead Border Patrol Agent position, U.S. Customs and Border Protection’s Office of Human Resources has concluded that the position is designated FLSA non-exempt.”  Accordingly, the co-worker’s claim was resolved by the agency before OPM issued a decision.  However, around the same time, OPM did receive claims from three other similarly situated USBP employees that OPM did adjudicate

Based on careful review of the record in the present claim, we concur with the agency’s determination that the claimant’s work in his LBPA, GS-1896-12, position was FLSA nonexempt.  The claimant is requesting compensation for work performed from December 28, 2003, to March 7, 2007, when the record shows he should have been classified as FLSA nonexempt.  Therefore, the agency 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 statute of limitations.

Willful violation

Under 5 CFR 551.104, “willful violation” is specifically defined as follows:

Willful violation means a violation in circumstances where the agency knew that its conduct was prohibited by the Act or showed reckless disregard of the requirements of the Act.  All of the facts and circumstances surrounding the violation are taken into account in determining whether a violation was willful.

Clearly not all violations of the FLSA are willful as this term is defined in the regulations.  There is no question that CBP erred in the claimant’s exempt status determination and those of other LBPAs.  Based on fact-finding conducted as a result of an earlier LBPA FLSA claim, the CBP’s Compensation and Organizational Effectiveness Division (COED) (then the Compensation Programs and Policy Division) determined the individual’s work was nonexempt and awarded him back pay and interest.  As a result of CBP’s study, the Assistant Commissioner, Human Resources Management, issued a June 25, 2007, memorandum to all LBPAs notifying them that their positions were appropriately nonexempt.  Shortly thereafter, the FLSA designations of affected LBPA positions were changed to nonexempt.  In response to OPM’s request for information in his co-worker’s earlier claim, the COED, in an apparent reversal of the agency’s June 2007 findings, provided an analysis determining the claimant’s work is exempt under the executive and administrative criteria of the FLSA.  However, COED indicated that all LBPA positions would nonetheless remain nonexempt pending OPM’s review of claims from other potentially affected LBPA employees. 

To prove willful violation, there must be evidence that CBP showed reckless disregard of the Act’s requirements.  Instead, we find the agency took proactive steps to correct erroneous FLSA determinations discovered as the result of an earlier FLSA claim.  In keeping with the principle of the presumption of nonexemption, CBP declined to change the exemption status pending OPM’s review of this claim and other LBPA claims filed with OPM.  These actions, combined with the inherent complexity of applying exemption criteria to positions like the LBPAs, causes us to conclude the agency’s actions do not meet the criteria for willful violation as defined in  5 CFR 551.104. 

The claim is time barred

Since OPM did not receive this claim until March 12, 2009, any claim for FLSA overtime pay expired on March 12, 2007 (March 12, 2006, if willful violation had occurred), based on application of the two-year statute of limitations in effect for FLSA claims filed after June 30, 1994.  Therefore, any claim for FLSA overtime pay for work performed during the period of the claim described previously as asserted by the claimant is time barred.[1]

Thus, the claim is barred from our consideration and may not be allowed.  The FLSA does not merely establish administrative guidelines; it specifically prescribes the time within which a claim must be received in order to be considered on its merits.  OPM does not have any authority to disregard the provisions of the FLSA, make exceptions to its provisions, or waive the limitations it imposes.


The claim is denied since it is time barred.

[1] Information provided by the agency shows that CBP, after changing the claimant’s FLSA exemption status to nonexempt, paid the claimant back pay and interest for work performed from May 29, 2005, through March 17, 2007.

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