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 and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


07/17/2017

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Date

Introduction 

On May 9, 2012, the U.S. Office of Personnel Management (OPM) received a letter dated May 9, 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, by letter dated October 2, 1992, and subsequently with OPM on January 5, 2000, challenging his exemption status under the FLSA when he was employed as a Criminal Investigator, GS-1811, at the GS-9 through GS-13 levels with the Department of Defense, Office of the Inspector General (DoD OIG).  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 August 11, 1990, to the pay period ending October 29, 1994, subject to the two-year statute of limitations for FLSA claims under 29 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 Army/Army Reserve “from approximately February 11, 1991 to May 26, 1991” in connection with Operation Desert Shield/Storm and, citing the provisions of 31 U.S.C. § 3702(b)(2), asserts: “[He] is entitled to retroactive back pay and interest under the FLSA and the Back Pay Act for the period he was employed prior to the commencement of the Gulf War on August 2, 1990, up to the date he recovered under previous FLSA settlements. This period includes September 3, 1985 to July 28, 1990,[1] less Mr. Grothaus’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, United States Code (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 November 3, 2016, in response to the aforementioned court decision, OPM requested an agency administrative report (AAR) from the DoD OIG regarding this FLSA claim.  By letter submitted on July 6, 2017, the DOD OIG advised OPM based on their fact-finding that the claimant:

…was employed with the Department of Defense Office of Inspector General (DoD OIG), he performed duties of a Criminal Investigator. Mr. Grothaus was employed by the DoD OIG effective August 31, 1986 as a GS-1811-09 through June 16, 1990 as a GS-1811-13.  At the beginning of his employment, Mr. Grothaus was a GS-1811-09, over the course of his employment with the DoD OIG he was promoted three times, reaching the full performance level of GS-1811-13, February 26, 1989…

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A review was completed, of the position descriptions to which Mr. Grothaus was assigned; along with a review of the pertinent portions of 5 Code of Federal Regulations (CFR) part 551 in effect at the time of his employment with the DoD OIG. A determination that the Criminal Investigator positions Mr. Grothaus held, did not meet the exemption definitions found in 5 CFR 551.203, 551.204 and 551.205 in affect [sic] during his employment.

Based on careful review of the record, we concur with the agency’s determination.  The claimant is requesting compensation for work performed from September 3, 1985, to June 16, 1990, less his active duty military service time.[2]  Therefore, DoD OIG would have been required to compensate the claimant under the overtime pay provisions of Subpart E of Part 551 of 5 CFR for work performed within the claim period; i.e., five years before 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 (September 3, 1985, to June 16, 1990) is covered. 

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; i.e., from September 3, 1985, to June 16, 1990.  Since his previous FLSA settlement and military service time were for time periods subsequent to June 16, 1990, 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). 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.[3]  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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