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. Bureau of Customs and Borders Protection
Department of Homeland Security
Linda Kazinetz
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
02/17/2017
Date
Introduction
On December 8, 2016, OPM’s Merit System Accountability and Compliance received a Fair Labor Standards Act (FLSA) claim from an individual who requested confidentiality. The claimant seeks “FLSA compensation with accrued interest from November 26, 2012 to September 6, 2014.” During the claim period, the claimant was employed as a Supervisory Border Patrol Agent (SPBA) (organizationally titled “Field Operations Supervisor” (FOS)), GS-1896-13, at the U.S. Border Patrol (USBP), U.S. Bureau of Customs and Borders Protection (CBP), Department of Homeland Security. We have accepted and decided this claim under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).
Background
The claimant states that “[o]n September 23, 2012,” the USBP replaced his FOS position, “designated by the agency as exempt (not covered) by the overtime provision of the FLSA, [with the] newly created position organizationally titled ‘Watch Commander (WC)’ (GS-1896-14),” which was filled by another employee. He requests OPM to review his exemption status “under the FLSA when [he] served as a Supervisory Border Patrol Agent, GS-1896-13 (organizationally titled ‘Field Operations Supervisor’ [FOS]) from November 26, 2012 to September 6, 2014.” He states that during this time period, he “was no longer a second-line supervisor, FOS, with greater responsibility and accountability of a shift, and [his] supervisory and administrative duties substantially decreased.”
Statute of Limitations
The FLSA claims process in subpart G of part 551 of title 5, CFR, covers the adjudication and settlement of claims for unpaid overtime. Any FLSA claim filed by a Federal employee, not otherwise covered by a negotiated grievance procedure which includes FLSA matters, on or after June 30, 1994, is subject to a two-year statute of limitations (three years for willful violations) contained in the Portal-to-Portal Act of 1947, as amended (section 255(a) of title 29, U.S.C.). In order to preserve the claim period, a claimant or claimant’s designated representative must submit a written claim either to the agency employing the claimant during the claim period or to OPM. The date the agency or OPM receives the claim is the date that determines the period of possible entitlement to back pay. The claimant is responsible for proving when the claim was received by the agency or OPM (5 CFR 551.702(c)).
Evaluation
OPM received the claim on December 8, 2016. There is no documentation in the record of the claimant filing a claim at an earlier date with the employing agency, nor does he assert that he did so. The claimant requests FLSA back pay and accrued interest “from November 26, 2012 to September 6, 2014.” However, the date the agency or OPM receives the claim is the date that determines the period of possible entitlement to back pay. See 5 CFR 551.702(c). Thus, the claimant preserved his claim on December 8, 2016, and, consequently, the claim period is December 8, 2014, to December 8, 2016. Therefore, the claim is time barred and must be denied. The Portal-to-Portal Act 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 authority to disregard the provisions of the Act, make exceptions to its provisions, or waive the limitations it imposes.
Decision
The claim is denied since it is time barred.