Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
U.S. Bureau of Customs and Borders Protection
Department of Homeland Security
Presido, Texas
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
11/21/2016
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 U.S. Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA). There is no right of further administrative appeal. The agency should identify all similarly situated current and, to the extent possible, former employees, and ensure that they are treated in a manner consistent with this decision as provided in 5 CFR 551.708. 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 the decision.
Introduction
On September 19, 2016, OPM’s Merit System Accountability and Compliance received a Fair Labor Standards Act (FLSA) claim from Mr. Raymond E. Molaison, Jr. The claimant seeks “FLSA back pay... for the period to include September 25, 2011 until January 13, 2013.” During the claim period, the claimant was employed as a Supervisory Border Patrol Agent (SPBA) (organizationally titled “Field Operations Supervisor” (FOS)), GS-1896-13, at the U.S. Border Patrol, U.S. Bureau of Customs and Borders Protection (CBP), Department of Homeland Security, in Presidio, Texas. 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.).
Background
From June 21, 2009, to January 13, 2013, the claimant occupied the position of a second-line FOS, and was exempt from receiving overtime under the FLSA. He states that “[o]n September 25, 2011, the U.S. Border [Patrol] reclassified the SBPA position, effectively promoting the first [level] supervisors to GS-1896-13...and allowing them to maintain their FLSA Non-Exempt status,” while those who already occupied the FOS positions maintained their status as exempt employees “even though the duties and responsibilities as an [sic] FOS were virtually identical to the SBPA position.”
Statute of Limitations
The FLSA claims process in subpart G of part 551 of title 5, Code of Federal Regulations (CFR), covers the adjudication and settlement of claims for unpaid overtime. Any FLSA claim filed by a Federal employee, not otherwise covered by a negotiated grievance procedure which includes FLSA matters, on or after June 30, 1994, is subject to a two-year statute of limitations (three years for willful violations) contained in the Portal-to-Portal Act of 1947, as amended (section 255a of title 29, United States Code). In order to preserve the claim period, a claimant or claimant’s designated representative must submit a written claim either to the agency employing the claimant during the claim period or to OPM. The date the agency or OPM receives the claim is the date that determines the period of possible entitlement to back pay. The claimant is responsible for proving when the claim was received by the agency or OPM (5 CFR 551.702(c)).
Evaluation
OPM received the claim on September 19, 2016. There is no documentation in the record of the claimant filing a claim at an earlier date with the employing agency. In fact, the claimant states that he contacted the "Director of CBP HRM... regarding how and where [he] might file a claim for back FLSA pay” after he learned of a fellow SBPA’s FLSA claim with OPM on September 3, 2016. He further states that “while [he] realize[s] that there is a statute of limitations regarding FLSA claims, [he] believes [his] claim has been preserved due to the fact that [he] learned of [the other] claim on September 3, 2016.” The claimant requests FLSA back pay “for the period to include September 25, 2011, until January 13, 2013.” However, the date the agency or OPM receives the claim is the date that determines the period of possible entitlement to back pay. See 5 CFR 551.702(c). Thus, the claimant preserved his claim on September 19, 2016, and, consequently, the claim period is September 19, 2014, to September 19, 2016. Therefore, the claim is time barred and must be denied. The Portal-to-Portal Act 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 authority to disregard the provisions of the Act, make exceptions to its provisions, or waive the limitations it imposes.
Decision
The claim is denied since it is time barred.