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. Department of Homeland Security
Oakland, CA
Kimberly A. Steide, DPA
Principal Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance
02/12/2025
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 action in the appropriate Federal court if dissatisfied with the decision.
Introduction
On September 27, 2022, OPM received a claim for overtime pay under the FLSA. The claimant is currently employed as an Emergency Management Specialist, GS-0089-12, with the Federal Emergency Management Agency (FEMA), U.S. Department of Homeland Security. The claimant requests a total of $18,694.91 for 1,088 overtime hours he allegedly worked between 2020 to 2021 as an Emergency Management Specialist, GS-0089-12. 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.).
On August 20, 2021, FEMA entered into a settlement agreement with the American Federation of Government Employees (AFGE), Local 4060. In it, the Union states that the initial grievance against the agency was filed “on behalf of past, present, and future bargaining unit employees at the [FEMA] represented by the Union, alleging violations of the [FLSA], Title 5 of the [U.S.C.], and other applicable laws, rules, and regulations.” Despite being a member of the AFGE bargaining unit, the claimant asserts that he refused to accept compensation from the settlement agreement, because he believes the agency “willfully and knowingly” violated the FLSA. He states that, although the agency was notified that there were discrepancies in many of AFGE employees’ exemption status designations, his first overtime occurrence was a year after the agency’s notification. During this time, the claimant’s position was improperly designated as exempt, and he was not paid the FLSA overtime pay rate of time and a half.
Evaluation
OPM settles Federal civilian employee FLSA claims under the provisions of section 204(f) of title 29, U.S.C., and 5 CFR part 551, subpart G. Section 7121(a)(1) of 5 U.S.C. 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 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) and 5 CFR 551.703(a).
The record shows the claimant occupied a bargaining unit position during the claim period (Standard Form 50, block 37). The CBA between FEMA and the AFGE, dated December 5, 2016 (updated October 24, 2017), covering the claimant and in effect during the period of the claim, does not specifically exclude FLSA issues. Therefore, this claim must be construed as covered by the CBA the claimant was subject to during the claim period, and OPM has no jurisdiction to adjudicate this claim.
Willful Violation
The claimant states that the agency “willfully and knowingly” violated the FLSA. However, the question of willfulness is moot because OPM has no jurisdiction over the claim.
Decision on FLSA Coverage
The claim is denied based on lack of jurisdiction.