Washington DC

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

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Linda Kazinetz
Classification Appeals & FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance

03/16/2017

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Date

On June 4, 2012, the U.S. Office of Personnel Management (OPM) received a letter dated June 4, 2012, from the Law Offices of Bernstein & Lipsett, P.C. (B & L), the claimant’s duly appointed representative, concerning a Fair Labor Standards Act (FLSA) claim they had initially filed on the claimant's behalf with the General Accounting Office (GAO), now the U.S. Government Accountability Office, on October 21, 1994, and subsequently with OPM on or about September 9, 1999, challenging his exemption status under the FLSA when he was employed as a Criminal Investigator, GS-1811, at the GS-11 and GS-12 grade levels with the Department of the Navy.  The claimant was a plaintiff in a lawsuit filed in the U.S. Court of Federal Claims at approximately the same time the administrative claim was filed with GAO.  Based on information provided by B & L, the claimant was awarded back pay under a settlement agreement for the pay period ending October 21, 1992, to the pay period ending October 29, 1994, subject to the two-year statute of limitations for FLSA claims under 29 United States Code (U.S.C.) 255(a).

B & L has requested OPM adjudicate the administrative claim filed with OPM and asserts that, because the claimant served in the military during the Gulf War, the statute of limitations applicable to this claim is the five-year statute of limitations under 31 U.S.C. 3702(b)(2) rather than the two-year statute of limitations (three years for willful violations) applicable to FLSA administrative claims filed under the Barring Act.  See 73 Comp. Gen 157 (May 23, 1994); 31 U.S.C. 3702(b); 29 U.S.C. 255(a).  B & L states the claimant was called to active duty with the United States Marine Corps Reserve “from approximately March 11, 1991, to June 14, 1991” in connection with Operation Desert Shield/Storm and, citing the provisions of 31 U.S.C. 3702(b)(2), asserts:  “[H]e is entitled to retroactive back pay and interest … for the period he was employed prior to the commencement of the Gulf War on August 2, 1990, in addition to the period he was employed by Commerce[1] after the commencement of the Gulf War, up to the date he recovered under previous FLSA settlements.  This period includes August 2, 1985 to October 17, 1992, less Mr. Noone’s active duty military service time, for which he does not seek recovery.”

Background

We previously accepted and decided six similar claims under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, U.S.C., which we denied as time barred.  Subsequently, claimant’s representative brought suit under the Administrative Procedure Act (5 U.S.C. 551 et seq., and 701 et seq.) in the United States District Court for the District of Columbia, alleging that OPM wrongfully applied a two-year statute of limitations in denying their administrative claims for unpaid FLSA overtime pay.  Armstrong v. Archuleta, 77 F.Supp.3d 9 (December 30, 2014).  In relevant part, the court stated in its opinion: 

All Plaintiffs are deemed to have timely filed their claims as of the date of their filings with the Claims Court. As a result, Plaintiffs . . . can recover for the entire claim period under the five-year statute of limitations—that is, for all claims that accrued within five years before the Gulf War commenced on August 2, 1990—minus monies paid under their DOJ Settlements.

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 [T]he case is remanded to OPM to adjudicate and process damages in accordance with FLSA and other applicable laws, and Plaintiffs’ respective employing agencies are directed to compensate them in accordance with OPM’s determinations.

Consistent with the holding in the Armstrong case, we will apply the five-year statute of limitations and corrective methodology (subtracting monies already received under prior settlements or judgments) to the claims of similarly-situated claimants we find to be FLSA non-exempt and potentially due FLSA overtime pay. 

Analysis

Under the provisions of 5 CFR 551.706, OPM determines the facts necessary to adjudicate a claim.  Applying the court’s mandate to determine whether the claimant is owed overtime pay under the FLSA, we must first determine whether the work performed during the claim period is exempt or nonexempt from the overtime pay provisions of the FLSA.  On October 1, 2015, in response to the aforementioned court decision, OPM requested an agency administrative report from the Naval Criminal Investigative Service (NCIS)[2] regarding this FLSA claim.  By letter dated May 6, 2016, NCIS advised OPM based on their fact-finding that:

The implementing regulations in force at the time provide that exemption criteria shall be narrowly construed and that the burden of proof rests with the agency that asserts the exemption. 5 C.F.R. § 551.202 (1984). The implementing regulations set forth four exemptions: 1) the executive exemption, which applies to managers; 2) the administrative exemption, which is applicable to “advisors, assistants or specialists in a management or general business function or supporting service;” 3) the professional exemption, which applies primarily to teachers and certain designated classes of professions; and 4) the foreign exception [sic], applicable to employees permanently stationed outside of the United States and its territories. 29 C.F.R. §§ 551.205-551.208.

SA [Special Agent] Noone, to the Agency’s best knowledge, was at all times during the applicable period, a line investigator, performing the basic production work of the Agency, namely, criminal and counterintelligence investigations and operations.  There is no indication that he was ever a manager or supervisor.  He was most likely on a standardized Position Description with a full performance level at the GS-12 level.  Since there is no indication that he was a manager, the executive exemption would most likely not apply.  Similarly, there is no indication that he was an “advisor, assistant or representative of management, or a specialist in a management or general business function or supporting service.”  In addition, there is no indication that his duties consisted of work that “significantly affects the formulation or execution of management policies or programs.”  Thus, the administrative exemption set forth in 29 C.F.R. § 551.205 appears inapplicable. Federal Personnel Manual Letter No. 551-1, Attachment 2 does not define the 1811 job series as a professional occupation.  Thus, the professional exemption does not appear to apply. The foreign exemption does not appear to apply as is it is highly unlikely that SA Noone was permanently stationed outside the United States and its territories.

Based on the foregoing and based on the little we know about (SA) Noone’s employment at NCIS due to a lack of records,[3] we conclude that SA Noone should most likely have been treated as nonexempt during the applicable time period.  

Based on careful review of the record, we concur with the agency’s determination.  The claimant is requesting compensation for work performed from August 2, 1985, to January 3, 1987, when he was employed by Navy, less his active duty military service time.[4]  Therefore, Navy would have been required to compensate the claimant under the overtime pay provisions of Subpart E of Part 551 of 5 CFR for work he performed within the claim period for Navy; i.e., within five years prior to the commencement of the Gulf War on August 2, 1990, and subject to deduction for any monies paid under the claimant’s DOJ settlement agreement.  In this case, the entire claim period (August 2, 1985, to January 3, 1987) is covered. 

The claimant’s Standard Form (SF) 50s documenting his employment with Navy indicate he was an exempt employee during the claim period, i.e., August 2, 1985, to January 3, 1987.

Decision

The claimant’s work is FLSA nonexempt (i.e., covered by FLSA overtime provisions), and he is entitled to compensation for all overtime hours worked at the FLSA overtime rate for the period of the claim he worked for Navy, i.e., August 2, 1985, to January 3, 1987.  Since both his military service time and his previous FLSA settlement occurred subsequent to January 3, 1987, they are not germane to the overtime pay calculations for the period of the claim covered by this decision.  The agency must follow the compliance requirements on page ii of this decision.

The claimant must submit evidence showing the amount and extent of overtime that was performed as provided for in 5 CFR 551.706(a) as informed by the agency payroll records submitted to OPM and the claimant on September 16, 2016.  The agency will have the opportunity to review this evidence using any other sources of information available, including witnesses, before a determination is made as to whether the claimant is entitled to any back pay under the FLSA and any interest as required under 5 CFR part 550, subpart H.[5]  Any petition for attorney’s fees and expenses must be submitted to the agency out of which this claim arose.  Should the claimant be determined to be entitled to back pay which the claimant believes to be incorrectly computed, the claimant may file a new FLSA claim with this office. 

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