Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
Department of Veterans Affairs
Waco, Texas
Damon B. Ford
Acting Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
01/12/2021
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. 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 an action in an appropriate Federal court if dissatisfied with the decision.
Introduction
On September 10, 2020, OPM received an Emergency Paid Sick Leave Act (EPSLA) paid sick leave claim from a Psychology Technician, GS-0181-07, employed with the Veterans Health Administration, Department of Veterans Affairs (VA) in Waco, Texas. The claimant seeks EPSLA paid sick leave for 53.30 hours of leave taken from July 30, 2020 to August 7, 2020. Section 5105 of the Families First Coronavirus Response Act provides that employers (such as Federal agencies) who violate the EPSLA paid sick leave provisions shall be considered to have failed to pay minimum wages in violation of the FLSA (29 U.S.C. 206). Therefore, we have accepted and decided this claim under 29 U.S.C. 204(f). After carefully reviewing all of the information of record provided by the claimant, the claim for EPSLA paid sick leave is denied for lack of jurisdiction as further discussed below.
Nature of the claim
The claimant asserts that on July 30, 2020, she was seen by Employee Health and sent home by a nurse practitioner due to having Coronavirus Disease 2019 (COVID-19)-like symptoms and was advised to follow-up with her primary care physician. The claimant was tested for COVID-19 and on July 31, 2020, she received test results showing negative for COVID-19. Despite the negative test results, the claimant states she was advised by Employee Health and her doctor to quarantine until her symptoms improved. In a letter dated August 7, 2020, the claimant’s doctor stated the claimant was “free of symptoms & may resume work duties on 8/10/20.” Information provided by the claimant with her claim to OPM does not make clear whether she filed an EPSLA paid sick leave claim with her employing agency’s office having authority to review the claim, or if a claim is currently pending with her agency. We note that under 5 CFR 551.703(b), a claimant may file a claim with the agency employing the claimant during the claim period or OPM, but not both simultaneously. Nevertheless, we may render a decision on this claim based on lack of jurisdiction.
Jurisdiction
Section 7121(a)(1) of 5 U.S.C. provides that, except as provided in other provisions of that section which are not relevant here, 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 the compensation, leave, or 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 178.101(b), 551.703.
Documentation obtained by OPM shows the claimant occupies a bargaining unit position (i.e., Standard Form 50, block 37). The Master Agreement between the VA and the American Federation of Government Employees covering the claimant and in effect during the period of the claim, does not specifically exclude leave or FLSA issues from the NGP (Article 43). Therefore, this 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.
Decision
The claim is denied based on lack of jurisdiction.