Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
Resource Management Directorate
Joint Special Operations Command
Fort Bragg, North Carolina
Damon B. Ford
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
12/06/2022
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
The claimant was formerly employed as a Budget Analyst, GS-0560-12, with the Comptroller Branch, Resource Management Directorate, Joint Special Operations Command, in Fort Bragg, North Carolina. The claimant retired from Federal civilian employment on April 1, 2020.
On April 11, 2019, the claimant’s position description (PD) number DN208131 was audited by the claimant’s Civilian Personnel Advisory Center (CPAC) using an automated FLSA audit tool. The audit was directed by HQ, Civilian Human Resources Agency, South-Central Region. A memorandum dated April 16, 2019, Subject: Correction of [FLSA] Status, from her servicing CPAC explains that as a result of an audit of the FLSA codes in the personnel system, the agency determined the claimant was erroneously coded as FLSA exempt and that the data element change, to correct her FLSA status from exempt to nonexempt had been processed. The record shows (SF 50) the agency corrected the claimant’s FLSA status to nonexempt effective January 6, 2019. Based on the memorandum noted above, the agency established her FLSA overtime pay entitlement back to April 2, 2017, the beginning of the pay period two years prior to her PD audit date. The agency also determined she was entitled to back pay for the difference between FLSA and title 5 overtime pay for the overtime she worked from April 2, 2017, through April 27, 2019. In a May 30, 2022, email to OPM, the claimant stated (1) she received back pay in two lump sum payments as shown on her leave and earnings statements for pay periods ending November 9, 2019, and February 15, 2020, respectively, and (2) clarified that she seeks additional FLSA overtime pay from 2012 to 2015, and from 2016 to September 2017. The record shows and the claimant confirmed she was properly compensated for any FLSA overtime pay due from April 27, 2019, until the date of her retirement on April 1, 2020.
In reaching our FLSA decision, we carefully considered all information furnished by the claimant and agency, including the agency administrative report we received on March 9, 2022, and additional information we subsequently requested and 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
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., Budget Analyst, GS-0560-12, PD number DN208131. The agency concluded the work was nonexempt from the provisions of the FLSA and based on a review of the PD we concur.
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. In a May 30, 2022, email to OPM the claimant confirmed she did not file a claim with her agency. OPM received her claim on July 19, 2021, and this date is appropriate for preserving the claim period.
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 to determine if it should be extended to three years based on whether 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 regulation. There is no question that the claimant’s former employing agency originally erred in its designation of the FLSA exemption status of the claimant’s former position. However, error alone does not reach the level of willful violation as defined in the regulation. 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 agency reacted when it discovered that it had erroneously exempted the claimant from the overtime pay provisions of the FLSA. The record shows when the agency determined the GS-12 budget analyst work was erroneously exempted from the FLSA, it took corrective action to change the FLSA exemption determination for the claimant and compensated her with back pay for the difference between FLSA and title 5 overtime pay for any overtime worked. Because the record shows the agency took corrective action for the claimant after auditing the FLSA exemption status of her former GS-12 budget analyst position, its actions cannot be construed as a willful violation of the FLSA.
For the reasons stated above, we find the agency acted in good faith after auditing the exemption determination of the claimant’s former position, and then took action to resolve the matter after discovering it had erroneously exempted her from the FLSA overtime pay provisions. 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 July 19, 2021, it is subject to a two-year statute of limitations commencing on July 19, 2019, and any time prior to that date falls outside the claim period.
The claim is time barred
The claimant requests FLSA overtime pay from 2012 through 2015, and 2016 to September 2017. The record shows the claimant preserved her claim with OPM on July 19, 2021, thus the claim commences on July 19, 2019. However, on April 1, 2020, she retired from Federal civilian employment, and the record shows was fully paid any FLSA overtime pay due from July 19, 2019, to her retirement date. Therefore, the period prior to July 19, 2019, is time barred.
Decision
The claim is time barred and must be denied.