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Pay & Leave Claim Decisions

Washington D.C

U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code

Jason J. Bakos
Supervisory Border Patrol Agent GS-1896-13
U.S. Border Patrol
Bureau of Customs and Border Protection
Department of Homeland Security
Spokane, WA
Exemption status
Denied; time barred
F-1896-13-05

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

05/08/2017


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 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 April 24, 2017, the U.S. Office of Personnel Management’s Merit System Accountability and Compliance received a Fair Labor Standards Act (FLSA) claim from Mr. Jason J. Bakos.  The claimant seeks to “appeal the decision regarding [his] FLSA Exemption status of exempt” for the period July 8, 2013, to October 20, 2013.  During the claim period, the claimant was employed as a Supervisory Border Patrol Agent (organizationally titled “Field Operations Supervisor” (FOS)), GS-1896-13, at the U.S. Border Patrol, Bureau of Customs and Border Protection (CBP), Department of Homeland Security, in Spokane, Washington.  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

As a result of OPM’s issuance of a previous decision, the CBP sent all employees who were assigned to position description number (PD#) S1027A “a questionnaire survey to complete to determine” if their “FLSA status was correctly coded as exempt based on the duties […] actually performed while assigned to” the PD.  As one of the individuals formerly assigned to the PD, the claimant completed the survey.  However, in a letter dated March 22, 2017, the agency informed the claimant that the results of the survey determined that his FLSA exemption status would remain exempt for the specified time period (July 8, 2013, to October 20, 2013).  The agency informed the claimant that if he wished to challenge this determination, he could file a claim with OPM. 

The claimant occupied the position of a second-line FOS and was designated FLSA exempt from July 8, 2013, to October 20, 2013.  He states that “during the time period specified […] [he] did perform the same duties [he] had before in PD# S1027A but in an extremely limited capacity.”  He further states that “many of the responsibilities that had previously [been] taken care of by the FOS (i.e. scheduling) had been delegated down to first line supervisors.” 

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, U.S.C.).  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 April 24, 2017.  There is no documentation in the record of the claimant filing a claim at an earlier date with the employing agency.  The claimant requests FLSA back pay for the time period from July 8, 2013, to October 20, 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 April 24, 2017, and, consequently, the claim period is April 24, 2015, to April 24, 2017.  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. 

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