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


11/14/2013

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Date

Introduction

On February 16, 2012, the U.S. Office of Personnel Management’s (OPM) Merit System Audit and Compliance, now Merit System Accountability and Compliance (MSAC), received a claim from Ms. Ruth A. Veit, who is employed as a county employee of the U.S. Department of Agriculture’s (USDA) Farm Service Agency (FSA).  The claim was initially submitted to OPM’s Office of the General Counsel (OGC) and forwarded to MSAC, the appropriate office within OPM authorized to adjudicate compensation claims under 31 U.S.C. § 3702.  Claimant seeks "compensation for 4203.50 hours worked up and above my normal duty hours….”.  In our April 12, 2012, letter to the claimant, we declined to accept the claim since she provided no evidence to show she had filed a signed, written claim with an FSA office authorized to issue an agency-level decision or that she had received such a decision which, under 5 CFR 178.102(a), is required before OPM will accept and docket a compensation claim.

On February 5, 2013, we received a second claim request, stating she had filed such a claim and received “denial letters from the State FSA Committee and FSA Acting Deputy Administrator for Field Operations.”  The claimant did not provide a copy of her August 15, 2012, claim request to her agency referred to in both denial letters.  However, the November 8, 2012, State FSA Committee letter states it is the “decision regarding your FLSA (Fair Labor Standards Act) complaint.”  The January 14, 2013, letter from the FSA Acting Deputy Administrator for Field Operations states it is “a review of the…Committee’s denial of your August 15, 2012, FLSA claim for compensation for 4203.50 hours.”  Given the lack of clarity as to which statutory basis claimant asserts as the basis for her claim, we have accepted and decided this claim under Section 4(f) of the FLSA of 1938, as amended (29 U.S.C. § 204(f)), and 31 U.S.C.§ 3702(a). In reaching our decision, we have carefully considered all information of record.

Jurisdiction

Under the provisions of 29 U.S.C. § 204(f), OPM is authorized to administer the FLSA “with respect to any individual employed by the United States (other than an individual employed in the Library of Congress, United States Postal Service, Postal Regulatory Commission, or the Tennessee Valley Authority).”  OPM has established an administrative claims process under

29 U.S.C. § 204(f) for adjudicating exemption status, minimum wage, and overtime pay claims and child labor complaints as provided for in 5 CFR 551.701(a).  See 5 CFR part 551, subpart G.

In determining who is an “individual employed by the United States” for purposes of 29 U.S.C.§ 204(f), 29 U.S.C. § 203 states:

(e)(1) Except as provided in paragraphs (2), (3), and (4), the term ‘‘employee’’ means any individual employed by an employer.

(2) In the case of an individual employed by a public agency, such term means—

(A) any individual employed by the Government of the United States—

  (i) as a civilian in the military departments (as defined in section 102 of title 5),

  (ii) in any executive agency (as defined in section 105 of such title),

  (iii) in any unit of the judicial branch of the Government which has positions in the competitive service,

  (iv) in a nonappropriated fund instrumentality under the jurisdiction of the Armed Forces,

  (v) in the Library of Congress, or

  (vi) the Government Printing Office;

(B) any individual employed by the United States Postal Service or the Postal Regulatory Commission.

Claimant is not an “employee” under the FLSA definition of “employee”, as she does not meet the definition under 29 U.S.C. § 203(e) (i.e., she is not an employee in an executive agency under 5 U.S.C. § 105).  An employee of an agency under 5 U.S.C. § 105, must meet the definition of “employee” under 5 U.S.C. § 2105.  In relevant part, section 2105(a)(1) reads:

(a)    For the purpose of this title, “employee”, except as otherwise provided by this section or when specifically modified, means an officer and an individual who is—

(1) appointed in the civil service by one of the following acting in an official capacity—

(A) the President;

(B) a Member or Members of Congress, or the Congress;

(C) a member of a uniformed service;

(D) an individual who is an employee under this section;

(E) the head of a Government controlled corporation; or

(F) an adjutant general designated by the Secretary concerned under section 709 (c) of title 32;

The claimant is an FSA County Office employee hired under the authorities found in section 7.1 of title 7, Code of Federal Regulations (CFR), et seq.  She was appointed to her position by an elected county committee (CC) and serves at the pleasure of the CC.  The CC itself is an elected body authorized by 7 CFR 7.11 and is composed entirely of elected officials who are not permitted to be USDA employees during their term of office pursuant to 7 CFR 7.18.  Accordingly, the claimant does not satisfy 5 U.S.C. § 2105(a)(1) because the members of the CC are not employees under 5 U.S.C. § 2105(a)(1)(D) and therefore, the claimant cannot be a Federal employee under 5 U.S.C. § 2105(a)(1) as a matter of law.  Hedman v. Department of Agriculture, 915 F.2d 1552,1554 (Fed.Cir.1990); see also Hamlet v. United States, 63 F. 3d 1097 (Fed. Cir. 1995).

Section 3702(a)(2) of title 31, United States Code (U.S.C.), limits OPM's claims adjudication authority to “claims involving Federal civilian employees' compensation and leave.”  Title 31 does not define “Federal civilian employee” in association with the claims adjudication authority it grants to OPM in § 3702(a)(2).  However, as discussed previously, the claimant is not a Federal employee under 5 U.S.C. § 2105(a)(1) as a matter of law.  Further, county positions are not included in the definition of “civil service” under 5 U.S.C. § 2101:  (1) the “civil service” consists of all appointive positions in the executive, judicial and legislative branches of the Government of the United States, except positions in the uniformed service.”  As county positions are not appointive positions in the executive branch of the Federal government, county employees are not employees as defined in U.S.C. § 2105, and Congress has not taken any action to define county employees as “Federal civilian employees” under 31 U.S.C. § 3702(a)(2).  We find the claimant, as a county employee, is not a “Federal civilian employee” for purposes of 31 U.S.C. § 3702(a)(2).  Accordingly, OPM does not have the authority to consider this claim under29 U.S.C. 204(f) or 31 U.S.C. § 3702(a)(2).

Decision

The claim is denied based on lack of subject-matter jurisdiction.

 

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