Washington, DC

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

Compensation Claim Decision
Under section 3702 of title 31, 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


09/30/2013

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Date

Introduction

The claimant is employed in a Supervisory Forestry Technician (Smokejumper), GS-462-12, position in the Fire Operations Branch, Division of Fire and Aviation, Alaska Fire Service (AFS), of the Alaska State Office, Bureau of Land Management (BLM), U.S. Department of the Interior (DOI), in Fairbanks, Alaska.  The employee filed a claim with his agency which was received on June 3, 2008.  The agency transferred the claim to the Office of Personnel Management (OPM) by letter dated June 12, 2008.  He asks that his claim be considered under the “Fair Labor Standards Act [FLSA] and/or Back Pay Claim Act” for underpayment of overtime pay earned between June 3, 2002, and September 30, 2003.  It appears the claimant is referring to the Back Pay Act of 1966 (Back Pay Act), codified at section 5596 of title 5, United States Code (U.S.C.).

This claim was one of many filed with the claimant’s agency regarding a miscalculation of overtime pay for FLSA nonexempt employees who received a non-foreign Cost of Living Allowance (COLA).  The agency stated in its February 18, 2009, administrative report to OPM  it has issued the back pay that was allowable under the FLSA for the two-year period from April 4, 2004, through April 4, 2006.  However, the claimant is requesting corrected pay for 1188.5 hours of overtime worked during 2002 and 2003.

During the claim period, the claimant occupied the following positions:

06/03/2002 to 04/19/2003       Supervisory Forestry Technician (Smokejumper), GS-462-10

04/20/2003 to 03/15/2008       Supervisory Forestry Technician (Smokejumper), GS-462-11

We considered the work performed by the claimant in the above positions, as described by the position description of record, and whether the work performed was exempt or nonexempt from FLSA provisions.  The agency determined the work performed by the claimant while occupying the above positions was exempt from FLSA provisions.  The claimant did not contest these determinations during the claim adjudication process and, based on careful review of the record, we concur. 

Applicability of the Back Pay Act (BPA)

In his May 31, 2008, letter to the agency, the claimant asks that his claim be considered under the FLSA and/or the BPA.  The BPA provides for a six-year statute of limitations as the maximum period allowed with respect to amounts payable under its provisions.  See 5 U.S.C.§ 5596(b)(4).  However, for back pay claims dealing with payments under the FLSA, an agency must apply the two-year statute of limitations, or three-year statute of limitations for willful violations, prescribed in 29 U.S.C. § 255a.  See also 5 CFR 550.804(e)(3).  Because this claim deals exclusively with the calculation of overtime pay under the FLSA as discussed below, it may only be considered under the provisions of the FLSA including its coverage criteria and application of its two- or three-year statute of limitations.

Applicability of the FLSA

OPM settles Federal civilian employee compensation and leave claims under the provisions of 31 U.S.C. § 3702(a)(2) and 5 CFR part 178, and FLSA claims under the provisions of 29 U.S.C. § 204(f) and 5 CFR part 551, subpart G.

Under 5 CFR 591.239(a), COLA is included in total remuneration for computing an FLSA nonexempt employee’s hourly regular rate of pay and in the employee’s straight time rate of pay when the employee is entitled to overtime pay under the FLSA.  Further, 5 CFR 591.239(b) makes clear that COLA is not to be included “as part of an employee’s rate of basic pay for purposes of computing entitlements for overtime pay, retirement, life insurance, or any other additional pay, COLA, or post differential under title 5, United States Code.”  Thus, 5 CFR 591.239(a) applies exclusively for the purpose of calculating overtime pay for employees covered by the overtime pay provisions of the FLSA; i.e., employees who are nonexempt under the FLSA.

The claimant is requesting compensation for work performed in 2002 and 2003, when the record shows he was classified as FLSA exempt.  Therefore, the agency was not required to compensate the claimant under the provisions of 5 CFR 591.239(a) during the claim period.

Decision

During the claim period, the claimant was classified as FLSA exempt and thus was not eligible for the inclusion of COLA in his overtime pay calculation.  Therefore, the claimant has failed to assert a claim for which compensation may be due and his claim is accordingly denied.

Further, the regulations governing the filing of an administrative claim under the FLSA (5 CFR 551.702(c)) state in pertinent part:  "If a claim for back pay is established, the claimant will be entitled to pay for a period of up to 2 years (three years for a willful violation) back from the date the claim was received." (Emphasis added.)

The claim period is June 3, 2002, to September 30, 2003.  The record shows the claimant preserved his claim with his agency on June 3, 2008, when his claim dated May 31, 2008, was received.  As such, any potential back pay entitlement if the claimant had been FLSA nonexempt would have ended two years prior to that date (three years for willful violation) in connection with the filing of this claim.  Therefore, the claim would have been time barred prior to June 3, 2006 (or June 3, 2005, in the event of a finding of willful violation). 

As provided in 5 CFR 551.708, this decision is binding on all administrative, certifying, payroll, disbursing, and accounting officials of agencies for which OPM administers the FLSA.  There is no further right of administrative appeal.  This decision is subject to discretionary review only under conditions specified in 5 CFR 551.708.

Those aspects of this decision reviewed under the authority of 31 U.S.C. § 3702(a)(2) and 5 CFR part 178 regarding the Back Pay Act and COLA are not subject to further administrative review.  Nothing in this settlement limits the employee’s right to bring an action in an appropriate United States court.

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