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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Robert D. Hendler
Classification and Pay Claims
Program Manager
Merit System Audit and Compliance


08/27/2012

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Date

As provided in section 551.708 of title 5, Code of Federal Regulations (CFR), this decision is binding on all administrative, certifying, payroll, disbursing, and accounting officials of agencies for which the U.S. Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA).  The agency should identify all similarly situated current and, to the extent possible, former employees, and ensure that they are treated in a manner consistent with this decision.  There is no right of further administrative appeal.  This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708.  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.

Introduction

On June 1, 2011, the U.S. Office of Personnel Management (OPM) received a Fair Labor Standards Act (FLSA) claim from John L. Surette.  The claimant believes he should be compensated for 68 hours of “homework or pre-assignments” for a Safety and Occupational Health Course he attended from August 2, 2006 through November 17, 2006.  We have accepted and decided his claim under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).

In reaching our FLSA decision, we have carefully considered all material of record, including information furnished by the claimant and his agency such as a copy of the agency’s administrative report (AAR) received on July 20, 2011, and additional information from the claimant received on December 1, 2011. 

Background

The claimant was employed in a Safety and Occupational Health Specialist, GS-018-9, position during the period of the claim.  He resigned from Federal employment on December 29, 2006.  The claimant does not question his agency’s determination that he was FLSA nonexempt during the period of the claim and, therefore, covered by the overtime pay provisions of the FLSA.  Based on careful review of the record, we concur the claimant was FLSA nonexempt during the period of the claim.

Claim Period

The FLSA claims process in subpart G of part 551 of title 5, Code of Federal Regulations (CFR), concerns the adjudication and settlement of claims for unpaid overtime.  Any FLSA claim filed by a Federal employee 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 255a of title 29, United States Code).  In order to preserve the claim period, a claimant or a 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)).

The claimant states:

I asked orally and in writing for overtime compensation due according to law from the 335^th and was denied. I was offered compensatory time in lieu of overtime by the 335^th.  The offer of compensatory time was not honored by the 335^th.  Filed with Fort McCoy and with DFAS [Defense Finance and Accounting Service].  I did not receive an answer from any agency until my Congressman was notified.

The claimant failed to provide a copy of the claims he asserts he filed with 335^th Theater Signal Command a component of the Department of the Army (Army) in 2006.  However, the record contains a January 29, 2007, letter from the DFAS Denver Center, Colorado, re-examining the claimant’s Military Pay Account, advising the claimant:  “We cannot assist you about overtime.  You need to contact your home unit about pay your [sic] due for overtime.”  The record also includes a copy of the claimant’s December 10, 2007, letter to the same DFAS office stating:  “I was not paid for mandatory overtime required for the Fort Rucker CP-12 class.  I was a distinguished honor graduate and was not compensated or recognized by my unit.”

DFAS transferred the claimant’s request to Army on or around March 29, 2011.  The record before OPM does not show the claimant preserved his claim with the Army prior to that date.  DFAS is not a component of Army and as such, filing a claim for overtime with DFAS did not preserve his claim with Army.  As such, the record shows the claimant preserved this claim with his agency on or about March 29, 2011, when his claim was received by Army.  Therefore, any entitlement to FLSA overtime on this claim would be time barred due to the running of the two-year statute of limitations in effect during the period of the claim and may not be allowed.  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 any authority to disregard the provisions of the Act, make exceptions to its provisions, or waive the limitations it imposes.

Notwithstanding our determination that the claim is time barred because the record does not show it was preserved with his employing agency before March 29, 2011, we will nonetheless address the merits of his claim.

Evaluation of Claimed Compensable Activity

The claimant states he had to attend and successfully pass the previously described Safety and Occupational Health Course held at Fort Rucker, Alabama, to be promoted to career status:

The position of Command Safety Manager required attendance and successful completion of the CP [Career Program] 12 course.  I am therefore entitled to overtime pay for the school directed and required overtime preparation for the CP-12 course.  This preparatory time was not study time but directed in class preparatory time.[1]

The claimant also states he attended and successfully passed the Safety and Occupational Health Course.  The claimant also states he graduated first in the class as a distinguished honor graduate and was an outstanding employee.  He states students were required to complete class homework or pre-assignments and the requirement was over and above the normal studying that goes into such an endeavor.  He asserts overtime is not precluded from being paid to students and he is entitled to overtime pay for the school-directed and required preparation for the course. 

The claimant bases his entitlement to overtime pay on 5 CFR 551.423(b).  He states his training was required by the agency and his performance or continued retention in his GS-9 position would have been adversely affected by non-enrollment in such training. 

In response to the claimant’s rationale, the agency states the 68 hours of homework or pre-assignments were not training as described in 5 CFR 551.423, but rather were developmental and grade-enhancing training, and the claimant is not entitled to overtime for the hours performing homework or pre-assignments.  The agency states:

In the instant case, the claimant was appointed to a GS-09 trainee to GS-11 position on June 11, 2006 and was approved to attend developmental training soon after his appointment in order to meet the goal of subsequent promotion at [sic] the full-performance target level. The claimant was not directed to attend the training because he was experiencing unacceptable performance issues; it was simply developmental,career enhancing training.

Regulations governing  time spent in training or attending lectures, meetings or conferences for employees covered under the FLSA are found in 5 CFR 551.423, which states:

(a) Time spent in training, whether or not it is under the purview of part 410 of this chapter, shall be administered as follows:

(1) Time spent in training during regular working hours shall be considered hours of work.

(2) Time spent in training outside regular working hours shall be considered hours of work if:

(i) The employee is directed to participate in the training by his or her employing agency; and

(ii) The purpose of the training is to improve the employee's performance of the duties and responsibilities of his or her current position.

(3) Time spent in apprenticeship or other entry level training, or internship or other career related work study training, or training under the Veterans Recruitment Act (5 CFR part 307) outside regular working hours shall not be considered hours of work, provided no productive work is performed during such periods, except as provided by Sec. 410.402(b) of this chapter and paragraphs (f) and (g) of Sec. 551.401.

(4) Time spent by an employee performing work for the agency during a period of training shall be considered hours of work.

(b) The following phrases contained in paragraph (a) of this section, are further clarified:

(1) Directed to participate means that the training is required by the agency and the employee's performance or continued retention in his or her current position will be adversely affected by non-enrollment in such training.  The fact that an agency pays for all or part of the expenses of training does not create an entitlement to overtime hours of work unless participation in the training is directed by the agency.

(2) Training "to improve the employee's performance * * * of his or her current position'' is distinguished from upward mobility training or developmental training to provide an employee the knowledge or skills needed for a subsequent position in the same career field.

(c) Time spent by an employee within an agency's allowance of preparatory time for attendance at training shall be considered hours of work if such preparatory time is:

(1) During an employee's regular working hours; or

(2) Outside the employee's regular working hours, and the purpose of the training meets the requirements of paragraph (a)(2) of this section.

(d) Time spent attending a lecture, meeting, or conference shall be considered hours of work if attendance is:

(1) During an employee's regular working hours; or

(2) Outside an employee's regular working hours, and

(i) The employee is directed by an agency to attend such an event; or

(ii) The employee performs work for the benefit of the agency during such attendance.

The claimant also cites the U.S. Department of Labor’s (DoL) FLSA regulations pertaining to time spent in training; i.e., 29 CFR 785.27-785.32.  OPM’s administration of the FLSA must comply with the terms of the FLSA, but the law does not require OPM’s regulations to mirror DoL’s FLSA regulations.  OPM’s administration of the FLSA must be consistent with DOL’s administration of the FLSA only to the extent practicable and only to the extent that this consistency is required to maintain compliance with the terms of the FLSA. 

Case law indicates that due to the peculiar nature of the statutory framework surrounding Federal employment, it is reasonable for OPM’s regulations to vary from Labor Department standard.  See e.g., Billings v. United States, 322 F.3d 1328 (Fed. Cir. 2003).  As such, the law does not require OPM’s regulations be perfectly consistent with DOL’s FLSA regulations.  OPM regulations are controlling for covered Federal employees as Congress gave OPM independent authority to regulate FLSA for covered Federal employees.  While there is legislative history indicating that OPM should administer the FLSA “in such a manner as to assure consistency” with DOL regulations and policies, there is no such requirement in the FLSA itself.  While OPM attempts to be consistent with DOL’s FLSA regulations, generally OPM utilizes FLSA guidance from DOL for instructive purposes only.

Although not directly applicable to Federal employees such as the claimant, we note DoL’s Wage and Hour Advisory Memorandum No. FLSA2009-15, dated January 15, 2009, indicates when an employer requires the employees to attend and pass the training program and the purpose of the training is to help the employees become more proficient in their jobs, homework is compensable hours worked.  Similarly, 5 CFR 551.423(a)(2) states that time spent in training outside of regular working hours can be considered hours of work if the employee is directed to participate by the agency and if the purpose of the training is to improve the employee’s performance in his or her current position.

We find DOL Memo No. FLSA2009-15 instructive.  Although the claimant states his training was required by the agency and his continued retention in his GS-9 position would have been adversely affected by his non-enrollment in such training, he has provided no documentation to support this assertion.  Any improvement in the claimant’s skills in performing the work of his GS-9 position must be construed as incidental to the developmental purpose of the training at issue in this claim.[2]

Decision

Since the purpose of the training was developmental and career enhancing, the claimant is not entitled to overtime for the time spent on homework and pre-assignments at issue in this claim.

 [2]  See http://www.asaie.army.mil/Public/ESOH/Safety/CP12/index.html which states:  “The goal of the Army Safety and Occupational Health Career Program (CP-12) is to develop a professional group of Department of the Army civilians…”

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