Washington, DC

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

Compensation Claim Decision
Under section 3702 of title 31, United States Code

---

Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


06/20/2016

---

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

The claimant is a current employee of the General Services Administration’s (GSA) Federal Acquisition Service (FAS) in Lakewood, Colorado.  She seeks “to be fairly paid for being an on-call employee” from “August 25, 2014 to current date.”  We received the claim on December 22, 2015. 

We have accepted and decided this claim under 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, U.S.C. and under section 3702(a)(2) of title 31, United States Code (U.S.C.).

Background

Information submitted by the claimant to OPM (Standard Form 50 (SF-50)) shows that her agency designated her position FLSA nonexempt during part of the claim period, specifically from August 25, 2014, until November 15, 2015.  Thereafter, her position was classified as FLSA exempt.  As the claimant’s exemption status was non-exempt prior to November 15, 2015, her claim is potentially reviewable under the provisions of 29 U.S.C. 204(f), and 5 CFR part 551, subpart G, for that portion of claim period.  As her exemption status was changed to exempt after November 15, 2015, her claim is thereafter potentially reviewable under the provisions of 31 U.S.C. 3702 (a)(2), and 5 CFR part 178.

OPM has authority to adjudicate compensation and leave claims for many Federal employees under the provisions of section 3702(a)(2) of title 31, United States Code (U.S.C.).  However, section 178.102(a) of title 5, Code of Federal Regulations (CFR), indicates that the claimant’s employing agency must review and issue a written decision on a compensation claim before it is submitted to OPM for adjudication.  The claimant is responsible for preserving the claim period by proving the signed, written claim was filed within the applicable statute of limitations.  See 5 CFR 178.104.  The information provided by the claimant with her request does not show she has filed a signed, written claim with the GSA component authorized to issue an agency-level decision or that she has received such a decision.  Nevertheless, we may render a decision on this claim in its entirety based on lack of jurisdiction.

Jurisdiction

OPM settles Federal civilian employee compensation and leave claims under the provisions of 31 U.S.C. § 3702(a)(2) and 5 CFR part 178, and FLSA claims under the provisions of 29 U.S.C. § 204(f) and 5 CFR part 551, subpart G.  Section 7121(a)(1) of 5 U.S.C. directs that except as provided elsewhere in the statute, the grievance procedures in a negotiated collective bargaining agreement (CBA) shall be the exclusive administrative remedy for resolving matters that fall within the coverage of the CBA.  The Court of Appeals for the Federal Circuit has found the plain language of 5 U.S.C. 7121(a)(1) to be clear, and as such, limits the administrative resolution of a Federal employee’s grievance to the negotiated procedures set forth in the CBA.  Mudge v. United States, 308 F.3d 1220, 1228 (Fed. Cir. 2002).  Further, the Federal Circuit also found that all matters not specifically excluded from the grievance process by the CBA fall within the coverage of the CBA.  Id. at 1231.  As such, OPM cannot assert jurisdiction over compensation and leave or FLSA claims of Federal employees who are or were subject to a negotiated grievance procedure (NGP) under a CBA between the employee’s agency and labor union for any time during the claim period, unless the matter is or was specifically excluded from the CBA’s NGP.  See 5 CFR 178.101(b) and 5 CFR 551.703(a).

The claimant states she is “not a member of a bargaining unit and was not covered by a negotiated grievance procedure at any time during the claim period.”  However, documentation submitted by the claimant to OPM shows she occupies a bargaining unit position (SF-50 block 37).  The agreement between the General Services Administration and the American Federation of Government Employees, covering the claimant during the period of the claim, does not specifically exclude compensation issues from the NGP (Article 33).  Therefore, this claim must be construed as covered by the NGP the claimant was subject to during the claim period, and OPM has no jurisdiction to adjudicate this claim.

Decision

The claim is denied based on lack of jurisdiction.

Back to Top