Washington, DC

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

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Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


05/07/2015

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Date

Introduction

On October 17, 2013, the U.S. Office of Personnel Management’s (OPM) Merit System Accountability and Compliance received a Fair Labor Standards Act (FLSA) claim dated September 24, 2013, from Ms. Leba M. McMillan.  The claimant is currently employed in a Security Specialist (Personnel), GG‑080-12, position in the Adjudications Division, Consolidated Adjudications Facility (CAF), Department of Defense (DoD), at Fort George G. Meade, Maryland.  CAF was established on May 3, 2012, by consolidating the personnel security functions and resources of the individual DoD components into a single organization.  The claimant was transferred from her corresponding position at DA to CAF effective December 16, 2012. 

Information provided by the claimant includes a memorandum dated September 10, 2013, stating CAF’s servicing human resources office had determined her position was erroneously coded as FLSA exempt, advised her that CAF employees who believed they received inaccurate overtime payment based on this determination could file a claim either with the organization employing them during the claim period before their reassignment to CAF (i.e., DA) or with OPM, and that any such claim must be filed within two years of receipt of the memorandum.  The claimant's FLSA status was corrected to FLSA nonexempt by CAF on August 16, 2013, retroactive to September 16, 2012.  In a May 14, 2014, email to OPM, CAF’s servicing human resources office certified it had made the claimant whole from the beginning of her employment with CAF forward.

The claimant requests "the remainder of [her] retroactive earnings from 15 January 2011 to 16 December 2012 at the FLSA "Nonexempt" rate as a nonsupervisory GG-11 and GG-12 positions [sic], plus interest based on [her] payroll records for overtime worked during this period."  In connection with this request, she provided copies of her Leave and Earnings Statements showing overtime worked for the pay periods ending September 8, September 22, and November 17, 2012. 

In reaching our FLSA decision, we have carefully considered all information furnished by the claimant and DA, including the agency administrative report (AAR) which we received on April 11, 2014, and additional information we received subsequently to clarify the record from CAF.  We have accepted and decided this claim under section 4(f) of the FLSA of 1938, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).

Analysis

Period of the Claim

Section 551.702 of 5 CFR provides that all FLSA 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 she had filed a claim with DA.  OPM received the claimant’s request on October 17, 2013, and this date is appropriate for preserving the claim period.

Applicability of the FLSA

To determine whether the claimant is owed overtime pay under the FLSA, we must first determine whether the work performed is exempt or nonexempt from the overtime pay provisions of the FLSA.  The agency included in the AAR its report of findings concluding that the claimant’s work at DA in the GG-080-12 position (PD# ST92136) she occupied from January 15, 2012, to December 15, 2012, was nonexempt from the provisions of the FLSA. Based on careful review of the record, we concur with the agency’s determination.  The claimant is requesting compensation for work performed from September 2012 to November 2012, when the record shows she was properly classified as FLSA nonexempt.  Therefore, DA 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.

The claim falls within the statute of limitations

The claimant’s request concerns overtime pay from August 2012 to November 2012.  The record shows the claimant preserved her claim with OPM on October 17, 2013.  Therefore, the claimant is eligible for back pay two years prior to that date; i.e., October 17, 2011, and her entire claim falls within the two-year statute of limitations.1

Decision

The record shows CAF made the claimant whole and that the claimant has received appropriate FLSA overtime pay from December 16, 2012, forward.  Therefore, the claimant is due FLSA overtime back pay and interest from DA for the period October 17, 2011, to December 15, 2012.

DA must reconstruct the claimant’s pay records for the period of the claim and compute back pay for FLSA overtime pay owed and any interest on the back pay, as required under 5 CFR 550.805 and 550.806, respectively.  If the claimant believes the agency incorrectly computed the amount, she may file a new FLSA claim with this office.

 

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