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OPM.gov / Policy / Pay & Leave / Claim Decisions / Fair Labor Standards Act
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Washington, DC

U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code

Colleen Broussard-Perry
N/A
Civil Division
U.S. Attorneys Office
Department of Justice
Indianapolis, Indiana
Deceit and willful obstruction from being considered for employment
Denied; Lack of jurisdiction
F-1102-12-01

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


09/09/2011

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 5 CFR 551.710).  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.  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 as provided for in 5 CFR 551.708. 

Introduction

On March 29, 2011, the U.S. Office of Personnel Management’s (OPM) Merit System Audit and Compliance received a “Fair Labor Standards Act (FLSA) grievance” from Ms. Colleen Broussard-Perry based on "deceit and willful obstruction from being considered for employment.”  The claimant states she is “being denied a Lateral Transfer to a Lead Contract Specialist position in the 60th Contracting Squadron, Travis AFB,” because “the Air Force Personnel Center has made a determination that I do not qualify for the position….”  We have accepted and decided this claim under Section 4(f) of the FLSA of 1938, as amended (29 U.S.C. § 204(f).

In reaching our FLSA decision, we have carefully considered all information furnished by the claimant and additional documentation obtained in the course of investigating this matter.

Jurisdiction

As stated in 5 CFR 551.101, the FLSA:

provides minimum wage standards for both wages and overtime entitlements, and administrative procedures by which covered worktime must be compensated.  Included in the Act are provisions related to child labor, equal pay, and portal-to-portal activities.

Under the provisions of 29 U.S.C. § 204(f), OPM has established an administrative claims process.  Under 5 CFR 551.701(a), a claimant may file an exemption status claim (whether the claimant is nonexempt and, therefore, covered by the overtime pay and minimum wage provisions of the FLSA), a claim for minimum wage or overtime pay for work performed under the Act, or a complaint arising under the child labor law provisions of the Act.

The FLSA does not cover, as the claimant appears to believe, Federal civilian employee qualification determinations made by agencies as part of the human resources staffing and appointment process.  Therefore, OPM does not consider such disputes within the context of the claims adjudication function it performs under 29 U.S.C. § 204(f).  The claimant’s attempt to assert OPM’s jurisdiction over this matter is misplaced as OPM’s claims adjudication authority is limited to reviewing exemption status, minimum wage, and overtime pay claims and child labor complaints as provided for in 5 CFR 551.701(a).  Therefore, the claim is denied for lack of subject-matter jurisdiction.[1]

Decision

The claim is denied based on lack of subject-matter jurisdiction.

[1] Under 5 CFR 300.104(b), a candidate may appeal his or her examination rating with an agency if the agency examines for competitive appointments under delegated examining authority.  Under 5 CFR 335.103(d), employees have the right to file a complaint relating to certain internal placement actions under appropriate grievance procedures.  There is no right of appeal to OPM.

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