Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
Armament Command
Department of the Army
Anniston, Alabama
Damon B. Ford
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
04/14/2021
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 action in the appropriate Federal court if dissatisfied with the decision.
Introduction
On September 30, 2020, OPM received an FLSA claim dated September 21, 2020, from the claimant. She currently occupies a Supervisory Management Analyst, GS-0343-13, position assigned to the U.S. Army Tank-Automotive and Armament Command, Department of the Army (DA), in Anniston, Alabama.
The record shows the claimant, prior to accepting the promotion to her current position, occupied a Management Analyst, GS-0343-12, position (position description (PD) number 399209) assigned to the same organization from January 25, 2015, to September 30, 2018. When she occupied the GS-12 management analyst position, the agency had determined the work performed was exempt from the overtime pay provisions of the FLSA. However, on December 20, 2019, the servicing civilian personnel advisory center (CPAC) notified the claimant via email that because DA had conducted an FLSA review of the GS-12 management analyst position and determined the work performed to instead be nonexempt from the FLSA, the current employee encumbering the position (over which the claimant now serves as supervisor) would be entitled to back pay for the difference between FLSA and title 5 overtime pay for any overtime worked. In a February 24, 2020, email to the CPAC, the claimant asked whether she would be similarly entitled to FLSA overtime for the period from December 20, 2017, to September 29, 2018, when she occupied the GS-12 management analyst position. In an April 17, 2020, email, the CPAC official explains:
Your name was removed from the fact tool by the region due to the sequence being vacated on 30-Sep-2018 when you were promoted. [DA] directed this to expedite the FLSA cleanup. However, your with in the five month window to complete a FLSA appeal before your 2 years expire. I have attached instruction on how to conduct an FLSA appeal…
In reaching our FLSA decision, we carefully considered all information furnished by the claimant and agency, including the agency administrative report we received on January 26, 2021, and additional information we subsequently received to clarify the record. 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.
Analysis
Period of the claim
Section 551.702 of 5 CFR provides that all FLSA pay claims filed on or after June 30, 1994, are subject to a two-year statute of limitations (three years for willful violations). OPM does not have any authority to disregard the provisions of the FLSA, make exceptions to its provisions, or waive the limitations it imposes. 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 filed a claim with her employing agency. In a February 2, 2021, email to OPM, the CPAC confirmed the claimant did not file a claim with her agency. OPM received her request on September 30, 2020, 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. As part of the administrative report to OPM, the agency provided its rationale for the FLSA designation of the claimant’s former position, i.e., the Management Analyst, GS-0343-12, position assigned to PD number 399209. The agency concluded the work was nonexempt from the provisions of the FLSA and based on careful review of the position we concur with the agency’s determination. The claimant is requesting compensation for overtime work performed from December 20, 2017, to September 29, 2018, when the record shows she was performing work properly classified as FLSA nonexempt. Therefore, her agency 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.
Willful violation
The FLSA regulations governing time limits and preserving the claim period in relation to the filing of an administrative claim (5 CFR 551.702(c)) also state in pertinent part: “If a claim for back pay (emphasis added) is established, the claimant will be entitled to pay for a period of up to 2 years (3 years for a willful violation) back from the date the claim was received.”
Thus, the next issue in establishing the claim period is if it should be extended to three years based on if the agency’s actions met the willful violation criteria.
“Willful violation” is defined under 5 CFR 551.104 as follows:
Willful violation means a violation in circumstances where the agency knew that its conduct was prohibited by the Act or showed reckless disregard of the requirements of the Act. All of the facts and circumstances surrounding the violation are taken into account in determining whether a violation was willful.
Clearly, not all violations of the FLSA are willful as this term is defined in the regulations. There is no question that the employing agency erred in the exemption status of the claimant’s former position. However, error alone does not reach the level of willful violation as defined in the regulations. A finding of willful violation requires that either the agency knew its conduct was prohibited or showed reckless disregard of the requirements of the FLSA. The regulation further instructs that the full circumstances surrounding the violation must be taken into account.
It is instructive to consider how the employing agency reacted when it initially discovered that it had erroneously exempted employees from the overtime pay provisions of the FLSA. The record shows it was the agency’s decision to review the FLSA exemption status of the GS-12 management analyst position as a result of an exemption determination decision issued by OPM on another position. When it subsequently determined the GS-12 management analyst work was erroneously exempted from the FLSA, the DA took corrective action to change the FLSA exemption determination for the current incumbent of the position and compensate the employee with back pay for the difference between FLSA and title 5 overtime pay for any overtime worked. The agency also advised the claimant that she still fell within a five-month window to complete an FLSA claim and provided information to her on how to file an agency claim for FLSA overtime backpay. Because the record shows it was the agency’s decision to conduct an audit of the FLSA exemption status of the GS-12 management analyst position and take corrective action for the current incumbent of the position, and notified the claimant of her right to file a claim, their actions cannot be construed as a willful violation of the FLSA.
Based on all of the above, we find the agency erred in not properly determining the FLSA exemption status of the claimant’s former position. However, technical error alone does not rise to the level of willful violation. We find the agency acted in good faith by initiating a full and adequate exemption determination review once their attention was focused on the issue, and then took action to resolve the matter after discovering it had erroneously exempted employees from the FLSA. In doing so, the agency did not recklessly disregard the requirements of the FLSA. Therefore, we find the agency’s actions do not meet the criteria for willful violation as defined in 5 CFR 551.104. Consequently, because we received the claim on September 30, 2020, it is subject to a two-year statute of limitations commencing on September 30, 2018, and any time prior to that date falls outside the claim period.
The claim is time barred
The claimant’s request concerns overtime pay from December 20, 2017, to September 29, 2018. The record shows the claimant preserved her claim with OPM on September 30, 2020. Since we find the agency did not willfully violate the FLSA, the claimant is eligible for back pay two years prior to that date, i.e., September 30, 2018, and the period prior to that date is consequently time barred.
Decision
The claim is time barred and must be denied.