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. Department of Agriculture
Athens, Georgia
Damon B. Ford
Acting Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
10/27/2020
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). 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 (address provided in section 551.710). The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.
Introduction
On February 18, 2020, OPM received an FLSA claim from [claimant]. The claimant is employed as a Biological Science Laboratory Technician, GS-0404-08, with the Agricultural Research Service (ARS), U.S. Department of Agriculture (USDA), in Athens, Georgia. The claimant requests two hours of overtime pay under the FLSA. She believes her agency violated the FLSA when she was compensated for two hours of work performed during overtime hours with credit time instead of overtime pay under the FLSA. We received the agency administrative report (AAR) on May 15, 2020, and additional information from the employing agency at our request on July 24, 2020. 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.).
In reaching our decision, we reviewed all information of record provided by the claimant and her employing agency.
General Issues
The claimant makes many statements relating to her agency and its handling of her timesheet regarding her claim for overtime pay, and she seeks to press charges against identified agency officials for “timesheet violations and fraud.” She also requests payment of attorney fees, a change in supervisor, criminal prosecution of identified agency officials to include jail time, and financial compensation for issues she considers violations of the FLSA, such as her agency refusing to pay overtime, falsifying and changing her timesheet, and for removing her supervisor as certifier of her timesheet. However, under the provisions of 29 U.S.C. § 204(f), OPM has established an administrative claims process and the claims process does not cover the aforementioned matters. OPM’s FLSA claims adjudication authority is limited to reviewing exemption status determinations, minimum wage, and overtime pay claims and child labor complaints as provided for in 5 CFR 551.701(a). Therefore, OPM does not consider such requests within the context of the claims adjudication function it performs under 29 U.S.C. section 204(f).
In adjudicating this claim our responsibility is to make our own independent decision about how much FLSA overtime pay the claimant is owed, if any. We must make that decision by analyzing the facts in the case against criteria in Federal laws, rules, and regulations. Therefore, we have considered the claimant’s statements only insofar as they are relevant to making that analysis.
Nature of the claim
The agency has designated the claimant’s position as nonexempt (i.e., covered by the overtime provisions of the FLSA). The record shows the claimant is assigned to a Monday through Friday workweek, 80-hour biweekly tour of duty (TOD) under a flexible work schedule (FWS): Maxiflex. [1] The claimant alleges entitlement to overtime pay for 1.30 hours and .30 minutes of work performed during overtime hours on January 8, 2020, and January 10, 2020, respectively. Included with her claim is a copy of the timesheet she submitted to her agency’s web-based time and attendance system (WebTA) showing she coded the time as overtime time hours on her timesheet using Transaction Code 21 for “Unsched. Over 40 Overtime.” The timesheet totals show 42 hours of work time for week one and 40 hours of work time (including leave taken) for week two of the pay period, for a total of 82 hours of work time for the biweekly period.
In an email dated January 16, 2020, with Subject: “overtime work this pay period,” the claimant made her first-level supervisor aware of the two hours of overtime worked and explained that as she had been required to work with her colleague to learn a new technique in test development, she adhered to her colleague’s work schedule and worked unscheduled overtime. In an email dated January 21, 2020, the claimant’s first-level supervisor responded to the claimant’s January 16, 2020 email, approving two hours of credit time for the unscheduled overtime. In addition, in an email dated January 21, 2020, with Subject: “Re: T&As due ASAP,” from the claimant’s second-level supervisor to the claimant, he explained the reason for approving credit time as opposed to overtime stating, “it is SEPRL [Southeast Poultry Research Lab] policy that overtime must be management directed and approved by the supervisor and RL [Research Leader] prior to the work taking place. The overtime hours you are requesting in the previous pay period were not approved by [claimant’s supervisor] or myself. [Claimant’s supervisor] has approved you to earn credit time for the hours worked with [claimant’s colleague].”
Nevertheless, the claimant states that on January 22, 2020, she validated and affirmed her timesheet in WebTA claiming the two hours were worked as overtime under the FLSA. However, in an email dated January 22, 2020, with Subject: “Re: Timesheet certification,” from the claimant’s second-level supervisor to the claimant, he explains management’s decision for denying the overtime and approving credit time as follows:
I have discussed with [claimant’s first-level supervisor] and confirmed that he requested you to work with [claimant’s colleague] on ELISA development. He asked you to work with each other and coordinate your schedule, but never directed or approved you to work overtime. In order to earn overtime, you must be directed by your supervisor to work overtime, and then must submit a premium pay request through WebTA for approval. In your case, you were not directed to work overtime and you did not follow the procedures for submitting a premium pay request. Because you chose to work outside your regular tour of duty to complete the work with [claimant’s colleague], you will be approved to earn credit time for the extra 2 hours you worked in pay period 1.
In its AAR, the agency explains that ARS is a part of the Research, Education and Economics (REE) Mission Area in USDA, and that all REE employees (except those on intermittent schedule) are covered by the Flexible Work Schedule Program (FWS Program), and states:
The agency does not dispute that as an FLSA non-exempt employee, if [claimant] had properly performed ordered overtime work, she would be entitled to pay at one and one- half times her regular rate for the two (2) hours of overtime work.
However, as a non-exempt employee on a maxiflex schedule, in order to claim entitlement to overtime pay, [claimant] must have been “officially ordered in advance by management to perform the overtime work. [Claimant] was not.
….The Agency does not dispute that the claimant was asked to work with a colleague on a new experiment technique but she was not ordered to perform that work during overtime hours. Thus, the record is clear that [claimant] was not ordered to work the overtime by anyone - either her 1st, 2nd, or 3rd line supervisor.
Thus, the agency provides that as the claimant elected to work the two hours outside her TOD hours, credit time was the appropriate form of compensation approved by her supervisor as supported by REE policies and procedures (P&P) on the granting of credit time to employees in the FWS Program (P&P 402.1, Flexible Work Schedules, Section 3.3 Credit Time).
Evaluation
Period of the Claim
Section 551.702 of 5 CFR provides that all FLSA pay claims filed on or after June 30, 1994, are subject to a two-year statute of limitations (three years for willful violations). A claimant must submit a written claim to either the employing agency or to OPM in order to preserve the claim period. The date the agency or OPM receives the claim is the date that determines the period of possible back pay entitlement. The claimant did not indicate or provide documentation showing she had filed a claim with the USDA. OPM received the claimant’s request on February 18, 2020, and this date is appropriate for preserving the claim period.
Overtime claim
For FLSA nonexempt Federal employees on flexible or compressed work schedules, the FLSA must be read in conjunction with the provisions of title 5, U.S.C., chapter 61.
Chapter 61, subchapter II of title 5, U.S.C. establishes hours of work conditions for Federal employees under flexible or compressed work schedules. Section 6122 provides:
(a) Notwithstanding section 6101 of this title, each agency may establish, in accordance with this subchapter, programs which allow the use of flexible schedules which include—
(1) designated hours and days during which an employee on such a schedule must be present for work; and
(2) designated hours during which an employee on such a schedule may elect the time of such employee’s arrival at and departure from work, solely for such purpose or, if and to the extent permitted, for the purpose of accumulating credit hours to reduce the length of the workweek or another workday.
Section 6121, which defines overtime hours for employees under flexible work schedules, provides:
(6) “overtime hours”, when used with respect to flexible schedule programs under sections 6122 through 6126 of this title, means all hours in excess of 8 hours in a day or 40 hours in a week which are officially ordered in advance, but does not include credit hours; [emphasis added]
Part 551 of 5 CFR, Subpart E, establishes overtime pay provisions for employees covered under the FLSA. Section 551.501 provides in relevant part:
- An agency shall compensate an employee who is not exempt under subpart B [Exemptions and Exclusions] of this part for all hours of work in excess of 8 in a day or 40 in a workweek at a rate equal to one and one-half times the employee’s hourly regular rate of pay, except that an employee shall not receive overtime compensation under this part—
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(6) For hours of work that are not “overtime hours,” as defined in 5 U.S.C. 6121, for employees under flexible or compressed work schedules;
Thus, the regulations implementing the FLSA provide for overtime pay but exclude such pay for hours of work that are not overtime hours as defined in 5 U.S.C. § 6121(a)(6) for employees under flexible schedule programs established under 5 U.S.C. chapter 61. The relevant statutory definition of “overtime hours” requires hours in excess of 8 in a day or 40 in a week to be officially ordered in advance and applies to FLSA nonexempt employees such as the claimant. FLSA nonexempt employees on flexible work schedules may not earn overtime pay as a result of including "suffered or permitted" hours as hours of work. Furthermore, OPM’s Handbook on Alternative Work Schedules addressing overtime work determinations prescribes that it is management who must officially order the work in advance. As permitted under 5 U.S.C. § 6122, the claimant’s agency has established an FWS Program under which the claimant is assigned to a maxiflex schedule. Thus, the claimant would only be entitled to overtime pay for hours beyond her basic work requirement that are officially ordered in advance by management.
The claimant does not provide any documentation showing that the hours for which she alleges entitlement to FLSA overtime pay were officially ordered in advance by management. In addition, the agency’s P&P 402.3v.4 on Premium Pay, Section 3. Policy, Subsection 3.1. Overtime Work Determination, provides that hours over 8 hours in a day or 40 in a week must be “officially ordered or approved (emphasis added); be performed by the employee; be documented in writing and attached to the Time and Attendance (T&A) Log.” The claimant asserts that she performed unscheduled overtime work which she made her supervisor aware of after she had performed the work. However, the time spent by the claimant performing work outside her basic work requirement, which claimant alleges she worked in order to adhere to her colleague’s work schedule because she had been required to work with him does not constitute overtime work officially ordered in advance or approved by management.
Additionally, the agency reports the organization’s policy requires employees to submit premium pay requests through WebTA for approval. However, a review of the WebTA record submitted by the claimant for PP 1 (January 5, 2020 – January 18, 2020) and those submitted by the agency dating back to PP 25 (December 8, 2019- December 21, 2019) did not include premium pay requests. The WebTA timesheet field for “Premium Pay Requests” on all timesheets submitted note: “No premium pay requests found for this pay period.” Thus, the record does not reflect that the hours worked by the claimant were officially ordered in advance. Therefore, we find the claimant has not shown the two hours of work she performed were “overtime hours” as defined in 5 U.S.C. § 6121(6) for an employee under a flexible work schedule, and the claim is denied.
Decision
The hours worked by the claimant are not “overtime hours” as defined by 5 U.S.C. § 6121(6) since the hours worked were not officially ordered in advance by management. Thus, the claimant’s claim for two hours of FLSA overtime pay is denied.
[1] Under a flexible work schedule TOD means the limits set by an agency within which an employee must complete his or her basic work requirement (See OPM’s Handbook on Alternative Work Schedules).