Washington, DC
U.S. Office of Personnel Management
Leave Claim Decision
Under section 3702 of title 31, United States Code
U.S. Department of Veterans Affairs
Seattle, Washington
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
02/19/2021
Date
The claimant is employed with the Veterans Benefits Administration (VBA), U.S. Department of Veterans Affairs (VA) in Seattle, Washington. She seeks the restoration of annual leave hours for the 2018 leave year. The U.S. Office of Personnel Management (OPM) received the claim request on February 8, 2019, and the agency administrative report (AAR) on February 28, 2020. For the reasons discussed herein, the claim is denied.
During the claim period (i.e., June 4, 2018 through August 17, 2018), the claimant worked as a Supervisory Veterans Service Representative within VBA’s Disability Rating Activity Site (DRAS), in Seattle, WA. The agency conducted an internal investigation of the hours worked by DRAS managers during the claim period to ensure each had worked a full eight hours each day. The agency leased a parking facility for DRAS employees during the claim period, which was equipped with a parking card system that recorded the dates and times of vehicles entering and exiting the parking gates. The claimant states the agency deducted annual leave hours from her when the parking card system indicated she had worked fewer than eight hours. On January 16, 2019, the claimant formally requested the restoration of the annual leave deducted from her. On January 31, 2019, the agency denied the claimant’s request.
The claimant asserts that: 1) it was improper of the agency to require her to take annual leave when she worked partial days due to her exempt status under the Fair Labor Standards Act (FLSA); 2) the agency inaccurately tracked her hours by deducting time on days she worked less than eight hours but not crediting her time on days when she worked more than eight hours; 3) the agency showed disparate treatment by only tracking the work hours of the DRAS management team of which she is a member; and, 4) the agency is tracking the hours of FLSA exempt and non-exempt employees the same. For these reasons, the claimant believes the annual leave deducted from her earned leave during the claim period should be restored to her.
In its denial of the claimant’s request to have her leave restored, the VBA explains that VA policies and guidelines require all employees, FLSA exempt and non-exempt, to be on duty for the full period of their tour of duty and that leave deducted to account for the full period of an employee’s tour cannot be restored:
“…VA Handbook 5011 states that, ‘All employees are expected to be on duty during the full period of their tours of duty unless absent on approved leave; to observe the opening and closing hours established for the tour of duty; and to adhere to established luncheon periods.’ Thus, all VA employees are required to be on duty, and working during all the hours of their tours of duty, unless employees are on approved leave or taking lunch breaks. Leave used to account for the full period of a tour of duty cannot be restored. Doing so would be a violation of [the] expectation that all employees are required to be on duty during the full period of their tours of duty, unless on approved leave or on a lunch break.”
The agency denied the claimant’s request for the restoration of leave because the claimant failed to provide the documentation required under VA policy (VA Handbook 5011, Part III, Chapter 2, Section 3(g)) for the restoration of annual leave in excess of the maximum annual leave accumulation. The VA policy cited outlines the requirements for the restoration of forfeited annual leave under section 5 U.S.C. § 6304 and implementing regulations in title 5, Code of Federal Regulations, part 630.
Forfeited annual leave can be restored under the limited circumstances set out in 5 U.S.C. § 6304, which states in pertinent part:
(d)(1) Annual leave which is lost by operation of this section because of-
(A) administrative error when the error causes a loss of annual leave otherwise accruable…;
(B) exigencies of the public business when the annual leave was scheduled in advance; or
(C) sickness of the employee when the annual leave was scheduled in advance;
shall be restored to the employee.
As an initial matter, the claimant’s attempt to bring her claim under the FLSA is misplaced. Under 29 U.S.C. § 204(f) and regulations promulgated in 5 CFR part 551 subpart G, OPM adjudicates FLSA claims brought by Federal civilian employees seeking to challenge their FLSA exemption status, to dispute FLSA pay decisions made by their employing agency regarding minimum wages or overtime pay under the FLSA, or to file claims arising under the FLSA child labor provisions. 5 CFR 551.701(a). OPM’s FLSA claims adjudication authority does not extend to adjudicating claims regarding alleged disparate treatment amongst employees, improper charging of annual leave, or leave restoration. The claimant has not alleged any claim disputing her FLSA exemption status or the payment of FLSA minimum wages or overtime pay, nor has she stated a claim involving the FLSA child labor provisions. Therefore, OPM is not adjudicating this claim as an FLSA claim.[1]
Under 31 U.S.C. § 3702 and regulations promulgated in 5 CFR part 178 subpart A, OPM has authority to adjudicate and settle Federal civilian employee claims for compensation and leave. Therefore, the claims regarding the alleged improper charging of annual leave and for annual leave restoration are properly before us. However, OPM’s authority under 31 U.S.C. § 3702 does not extend to settling disputes over the alleged improper tracking of work hours or disparate treatment amongst groups of employees. Since the claims regarding charging of annual leave and annual leave restoration are the only claims properly before us, this decision is limited to the adjudication of those claims.
Regarding the claim that the agency improperly charged the claimant for annual leave, the claim is denied. Pursuant to 5 CFR 178.105, the burden is upon the claimant to establish the liability of the agency. OPM will accept the facts asserted by the agency, absent clear and convincing evidence to the contrary. After careful consideration of the claimant’s assertions and submissions, we find the information provided by the claimant does not establish she performed work for a full eight hours per scheduled workday during the claim period for which she alleges she was improperly charged annual leave. Thus, she has not shown that the agency acted improperly by charging her annual leave during the claim period. Therefore, the claim for improper charging of annual leave is denied.
The claim for restoration of annual leave is also denied. The claimant has not alleged that she forfeited annual leave at the end of the 2018 leave year, that she qualified for restoration of annual leave, or that she followed the necessary procedures to have any forfeited annual leave restored. See generally 5 U.S.C. § 6304(d); 5 CFR 630.305-311. Rather, she alleges that annual leave hours were improperly deducted from her earned leave. That claim is denied for the reasons stated supra. The information provided by the claimant does not establish that she qualifies for leave restoration under 5 U.S.C. § 6304 and the implementing regulations. Therefore, the claimant has failed to state a claim for restoration of annual leave, and the claim for leave restoration is denied.
This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.
[1] While OPM is not adjudicating this claim as an FLSA claim for the reasons stated, we note that the claimant appears to assert that her FLSA exemption status affects her employing agency’s ability to charge annual leave. While FLSA exemption status affects inter alia applicability of the FLSA overtime pay provisions, it does not affect the accrual, use, or restoration of annual leave.