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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

Joseph J. Schultz
Flight Program Team
Laboratory Services Group
William J. Hughes Technical Center Office
Senior Vice President, Nexgen & Operations Planning
Chief Operating Officer
Federal Aviation Administration (FAA)
Atlantic City, New Jersey
Position should be nonexempt
Denied; Lack of jurisdiction

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 Fair Labor Standards Act (FLSA).  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.  There is no right of further administrative appeal.  This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708.  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.


On February 16, 2011, 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 who seeks to have his exemption status changed from exempt to nonexempt.  He states that when he entered the position on August 16, 2009, it was classified as nonexempt, but that it was changed to exempt on May 9, 2010, without explanation:

Upon inquiring of management of the change, I was directed to our local group Human Resources Office.  I questioned the change and was informed that the status was changed to Exempt because of my pay grade without reference to regulation or rule.  No written explanation was given.  HR would only respond to management, which forwarded the verbal response to me.

We have accepted and decided his 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 additional documentation we received from his agency on June 7, 2011.


OPM has authority to adjudicate FLSA claims for Federal employees under the provisions of section 204(f) of title 29, United States Code (U.S.C.).  OPM’s adjudication authority is an administrative remedy, not a judicial remedy.  See 5 CFR part 551 subpart GSection 7121(a)(1) of title 5, United States Code, directs that except as provided elsewhere in the statute, the grievance procedures in a negotiated collective bargaining agreement (CBA) shall be the exclusive administrative remedy for resolving matters that fall within the coverage of the CBA.  The Court of Appeals for the Federal Circuit has found the plain language of 5 U.S.C. 7121(a)(1) to be clear, and as such, limits the administrative resolution of a Federal employee’s grievance to the negotiated procedures set forth in the CBA.  Mudge v. United States, 308 F.3d 1220, 1228 (Fed. Cir. 2002).  Further, the Federal Circuit also found that all matters not specifically excluded from the grievance process by the CBA fall within the coverage of the CBA.  Id. at 1231.  As such, OPM cannot assert jurisdiction over FLSA claims of Federal employees who are or were subject to a negotiated grievance procedure (NGP) under a CBA between the employee’s agency and labor union for any time during the claim period, unless the matter is or was specifically excluded from the CBA’s NGP. See 5 CFR 551.703(a).

The claimant states:  “I am not a member of the union though my SF50 [sic] states Bargaining Unit Status as “1075” in block 37, but I am not sure how this effects [sic] the determination of exemption status.”  Union membership is not germane to determining claims settlement jurisdiction.  What is germane in determining jurisdiction is that the claimant occupied a bargaining unit position covered by a CBA during the period of the claim. The CBA between FAA’s National Aviation Facilities Experimental Center, now the William J. Hughes Technical Center, and the National Federation of Federal Employees, Local 1340, covering the claimant and in effect during the period of the claim does not specifically exclude FLSA overtime pay issues from the NGP (Article 30) covering the claimant.  Therefore, the claimant’s FLSA claim must be construed as covered by the NGP the claimant was subject to during the claim period and OPM has no jurisdiction to adjudicate this claim.


The claim is denied based on lack of jurisdiction.

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