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. Army Garrison Fort Bragg
U.S. Army Installation Management Command
Fort Bragg, North Carolina
Damon B. Ford
Acting Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
12/05/2019
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 May 21, 2019, the OPM received an FLSA claim, dated April 2, 2019, from the claimant, who is employed as a Paralegal Specialist, GS-950-11, with the U.S. Army Installation Management Command.
Initially, the agency provided information showing that it had been made aware on April 13, 2018, that the claimant’s position was coded incorrectly as FLSA exempt. A letter, dated January 31, 2019, Subject: Correction of [FLSA] Status, from his servicing civilian personnel advisory center (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 his FLSA status from exempt to nonexempt, had been processed. The claimant’s FLSA status was corrected to FLSA nonexempt by the agency on February 10, 2019, retroactive to April 3, 2016. The agency also determined he was entitled to back pay for the difference between FLSA and title 5 overtime pay for the overtime he worked commencing on April 3, 2016.
The claimant filed an FLSA claim with his agency, received on February 13, 2019, requesting additional back pay for overtime he asserts working during the period beginning on May 1, 2000. On March 21, 2019, the agency denied the claimant’s request based on the statute of limitations governing FLSA claims required by 5 CFR 551.702. In his claim request to OPM, the claimant requests an “exception to the statute due to the fact that the overtime hours were worked in good faith,” and in addition that OPM “make the appropriate arrangements for an audit of the entire period 2000 – 2018 to ensure proper pay is calculated and dispersed to [him].”
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.
Background
Following our request for clarifying information, the agency determined that it had initially conducted an audit of FLSA exemption codes and became aware of the claimant’s erroneously coded FLSA exemption status on August 29, 2016, and not April 13, 2018, as initially reported by the agency to OPM. The agency further explains in its August 22, 2019, email to OPM:
The audit in 2016 was conducted by the CPAC under the direction of the South Central Region. The CPAC found Mr. Spearman’s FLSA was incorrectly coded FLSA exempt on 29-Aug-2016 and provided this information to the South Central Region via email/spreadsheet as directed shortly thereafter. Unfortunately the corrective action for Mr. Spearman fell through cracks and was not completed during the 2016 audit. The following year the Army developed an automated FLSA audit tool which was implemented in September 2017. On 13-April-2018 the Fort Bragg CPAC rediscovered Mr. Spearman’s incorrect FLSA status in the automated tool and processed accordingly.
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 2-year statute of limitations (3 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 seeks an exception from the time limits established by 5 CFR 551.702. However, the FLSA does not merely establish administrative guidelines; it specifically prescribes the time within which a claim must be received in order to be considered on its merits. OPM does not have any authority to disregard the provisions of the FLSA, make exceptions to its provisions, or waive the limitations it imposes. Therefore, we will not address the claimant’s exception-related requests any further in this decision.
The claimant filed a claim with his agency on February 13, 2019, and this date is appropriate for preserving the claim period.
Willful violation
The regulations governing 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.”
“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.
The agency explains in its August 22, 2019, email to OPM:
“…it is the Agency’s official response that a willful violation occurred. We will submit a payroll remedy ticket and ask our processing center to expedite this action. Mr. Spearman’s claim was received by the Agency on 13-February-2019 so the corrective action will go back 3 years to 13-February-2016.”
We accept the agency’s determination that a willful violation occurred. The record shows the claim he filed with his agency was received on February 13, 2019, and it is subject to a 3-year statute of limitations commencing on February 13, 2016, and any time prior to that date falls outside the claim period.
Time barring a claim
As noted in 5 CFR 551.702, when willful violation is determined an employee is entitled to up to 3 years of back pay from the date the claim was received. The record shows the claimant preserved his claim with his agency on February 13, 2019. Since we adopted the agency’s conclusion that it willfully violated the FLSA, the claimant is entitled to back pay for a period up to 3 years prior to that date, i.e., February 13, 2016, and the period of the claim prior to that date is consequently time barred.
Request for OPM payroll audit
The claimant requests that OPM make arrangements to audit his pay records and ensure he was properly paid from 2000 to 2018. However, the FLSA claims jurisdiction of OPM is limited to consideration of statutory and regulatory merits of the individual FLSA claims before us. It does not extend to conducting investigations or audits of payroll records at the request of individual claimants.
Decision
The claimant is due FLSA overtime back pay and interest from the agency for the 3-year period beginning on February 13, 2016. The record shows he received some of the monies owed to him in May 2019, but the agency is currently in the process of calculating the remaining amount due to him. If the claimant, after receiving the complete payment for FLSA overtime back pay and interest due to him, believes the agency incorrectly computed the amount, he may file a new FLSA claim with this office. The period of the claim prior to February 13, 2016, is time barred and must be denied.