Office of the General Counsel

Date: November 30, 2000
Matter of: [9 claimants]
File Number: 00-0005

OPM Contact: Melissa Drummond

The law offices of [claimant's representatives] are representing a group of 9 claimants who are requesting overtime compensation. The 9 claimants are present and former employees of the [agency]. For the reasons discussed herein, the claim is granted.

The claim states that, on September 9, 1990 and various dates thereafter, the law offices of [claimant's representative] filed administrative claims with the General Accounting Office (GAO) for overtime compensation on behalf of these nine claimants. In 1996, responsibility for determining pay claims based on entitlement for overtime compensation was transferred from GAO to the U.S. Office of Personnel Management (OPM). OPMs Office of Merit Systems Oversight and Effectiveness has jurisdiction and accepted the claim on May 4, 2000. Required information from the agency was received on August 28, 2000.

The claimants are or were employed as Border Patrol Agents (Intelligence Officers or Anti-Smuggling Coordinators). Until June 1997, they were classified at the GS-12 pay grade and were classified as exempt from the FLSA. Based on an OPM classification appeal decision on August 7, 1996, [agency] reclassified its non-supervisory GS-12 intelligence officer and anti-smuggling coordinator positions to the GS-11 level, effective on June 8, 1997. On reclassification of the claimants positions to the GS-11 level, the positions were determined to be nonexempt under the FLSA pursuant to the decision by the Court of Claims in Philip Leroy Adam v. U.S., 26 Cl. Ct. 782 (July 20, 1992). In the Adam decision, the court held that GS-11 Senior Border Patrol Agents were not exempt under the FLSA because they carry out the ongoing mission and day-to-day functions of the [agency]. (Claimants positions as GS-12 border patrol agents were not before the court at the time of the Adam decision.) Once these positions were reclassified at the GS-11 level, the agents occupying these positions began to receive FLSA overtime pay as non-exempt employees. Nothing about their duties changed when they were reclassified to the GS-11 position.

On July 18, 1997, the nine current and former employees filed a complaint in the U.S. Court of Federal Claims seeking back pay in accordance with the FLSA, 29 U.S.C. 207(a), for overtime work performed during the period that they served in non-supervisory positions, which were classified at the GS-12 pay and were classified as FLSA exempt. That lawsuit was resolved through a negotiated settlement agreement under which the plaintiffs received back pay for the time period that they occupied an intelligence officer position at the GS-12 pay grade. Accordingly the nine employees are not claiming any back pay for any time that they occupied a GS-12 position between July 19, 1995 two years prior to the date that their claims were filed in Court, and June 7, 1997 the date that they began to receive FLSA overtime pay.

However, as indicated earlier, the employees filed claims with GAO. They were filed for the purpose of tolling the applicable statute of limitations set forth at 31 U.S.C. 3702(b). Now that the claimants court claims are resolved and the employees have been paid overtime back pay pursuant to their court claims, they are activating the claims filed with GAO.

In the agency's response, they stated that the claim should be allowed for 6 of the 9 claimants. However, they stipulated that they did not agree with allowing the claims for 3 of the 9 claimants, because their initial claim submissions did not reflect an appropriate GAO date stamp for establishing the tolling date. At OPM's request, [claimant's representative] conducted further research and provided documentation on behalf of these 3 claimants that showed when the claims were originally filed with GAO. Date stamps for the claimants reflect tolling dates between September 1990 and February 1995.

Section 640 of the Treasury Appropriations Act of 1994, amended in 1995, states, in part:

the Comptroller General of the United States shall apply a 6-year statute of limitations to any claim of a Federal employee under the Fair Labor Standards Act of 1938 for claims filed before June 30, 1994. This section shall not apply to any claim where the employee has received compensation for overtime hours worked during the period covered by the claim under any provision of law, including, but not limited to 5 USC 5545(c), or to any claim for compensation for time spent commuting between the employees residence and duty station.

The agency has verified that, while at the GS-12 level, the claimants were authorized and paid Administratively Uncontrollable Overtime (AUO) on an annual basis pursuant to 5 U.S.C. 5545(2). Therefore, the claimants can receive pay for their claim only for 2 years back from the date it was recorded with GAO. The dates that each claimant filed with GAO are listed below:

Claimant GAO Tolling Date

[claimant's names]

We do not find that there was a willful violation on the part of the agency, so the

3-year statute of limitations is not applicable. We concur with the agencys determination that the claimants positions are non-exempt; that is, they are covered by the FLSA. Based on our review, the claimants are due compensation for 2 years back from the GAO tolling date for the difference between the overtime payment they received under title 5 and the overtime payment due under FLSA.

The claimants have requested that their claims be settled on a lump sum basis. Rather than requiring [agency] to compute actual back pay, the claimants have agreed to accept a lump sum amount per period going back two years from the date that their claims were filed at GAO and extending up until July 18, 1995 the date that they began receiving overtime back pay for their court claims. This is similar to another settlement reached with OPM on behalf of [agency] criminal investigators. However, our decision will be made independent of that settlement agreement and will be based on our determination of the application of OPM regulations and guidance.

Although sunsetted, the guidance, found in FPM Letter 551-24 (attachment 1) for computing pay when FLSA overtime is due, is still relevant. Per regulations, the claimants overtime pay must be calculated on a workweek basis. The claim period for each claimant begins 2 years back from the GAO tolling date to July 18, 1995. Therefore, for each workweek in the claim period, the agency is to compute each claimants pay entitlement using the guidance in the FPM Letter. Each claimant is due this amount minus whatever he has already been paid for the week as AUO pursuant to 5 U.S.C. 5545(2).

Five CFR 550.806 and FPM Letter 550-78 (attachment 2), also sunsetted but still relevant, show that each claimant is also owed interest on the back pay discussed above. The agency is to compute that interest as described in the regulation and the FPM Letter.

The agency should pay each claimant the total amount owed him. If any claimant believes that the agency has computed the amount incorrectly, he may file a new claim with this office.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.

Attachments:

FPM Letter 551-24

OPM Letter 550-78