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. Citizenship and Immigration Services
U.S. Department of Homeland Security
Houston, Texas
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). 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 (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 April 14, 2015, the U.S. Office of Personnel Management’s (OPM) Merit System Accountability and Compliance received a Fair Labor Standards Act (FLSA) claim dated April 5, 2015, from Mr. Francisco J. Velasquez. The claimant is currently employed in a Supervisory Immigration Officer, GS‑1801-14, position in the Office of Fraud Detection and National Security (FDNS), U.S. Citizenship and Immigration Services (USCIS), U.S. Department of Homeland Security, in Houston, Texas.
Background
On July 20, 2008, the claimant was reassigned from a Supervisory Adjudication Officer, GS-1801-13, position to an Immigration Officer (FDNS), GS-1801-13, position. At the time of reassignment, USCIS had designated the Immigration Officer (FDNS), GS-1801-13, position as exempt from the overtime pay provisions of the FLSA. The position remained FLSA exempt until February 12, 2012, when the position was reclassified by USCIS as FLSA nonexempt. Thereafter, the claimant became aware of agency efforts to provide back pay to eligible employees based on the change in their FLSA designation. On May 23, 2012, by way of email, the claimant wrote to USCIS-Payroll inquiring about whether or not he should expect to receive back pay. In response, USCIS-Payroll requested proof of any overtime worked between February 12, 2010, and February 12, 2012 (a period of two years), which would be reviewed and payment issued, if so entitled. Upon review, the agency determined the claimant was entitled to pay for overtime worked from February 12, 2010, through August 15, 2010,[1] and compensated him accordingly. USCIS-Payroll told the claimant that “back pay claims for FLSA are limited to two years,” citing 5 CFR 551.702. The claimant now asserts that USCIS willfully violated the FLSA in designating his Immigration Officer position as exempt so that a three-year (rather than two-year) statute of limitations applies, and that he should receive additional FLSA overtime pay for overtime worked.
In reaching our FLSA decision, we have carefully considered all information furnished by the claimant. We have accepted and decided this claim under section 4(f) of the FLSA of 1938, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).
Analysis
Period of the claim
Claims arising under the FLSA must be commenced within two years after the cause of action accrued, “and every such action shall forever be barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.” 29 U.S.C. 255(a).
The statute of limitations for FLSA claims is explained in 5 CFR § 551.702(b), which states:
(b) Statute of limitations. An FLSA pay claim filed on or after June 30, 1994, is subject to the statute of limitations contained in the Portal-to-Portal Act of 1947, as amended (section 255a of title 29, United States Code), which imposes a 2-year statute of limitations, except in cases of a willful violation where the statute of limitations is 3 years.
Therefore, there is a two-year statute of limitations on FLSA claims filed on or after June 30, 1994, except in cases of a willful violation committed by the agency. There is a three-year statute of limitations on FLSA claims when an agency commits a willful violation.
The regulations governing the filing of an administrative claim (5 CFR 551.702(c)) states, in pertinent part:
A claimant…may preserve the claim period by submitting 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 and for retaining documentation to establish when the claim was received by the agency or OPM, such as by filing the claim using certified, return receipt mail, or by requesting that the agency or OPM provide written acknowledgment of receipt of the claim. If a claim for back pay is established, the claimant will be entitled to pay for a period of up to 2 years (3 years for a willful violation) back from the date the claim was received.
The claimant did not indicate or provide documentation showing he had ever filed an official written claim with USCIS. The aforementioned emails do not satisfy this requirement. OPM received the claimant’s request on April 14, 2015, and this date is appropriate for preserving the claim period.
The claim is time barred
The claimant’s request concerns overtime pay from 2009 to 2010. The record shows the claimant preserved his claim with OPM on April 14, 2015. Assuming, arguendo, that willful violation is attached to this claim, any entitlement to back pay for FLSA overtime based on this claim would have expired on April 14, 2012, and the period of the claim prior to that date is time barred.
Decision
The claim is time barred and must be denied.
[1] The claimant was promoted to an FLSA exempt Supervisory Immigration Officer position on August 15, 2010, which is not in dispute. Therefore, after this date no additional overtime was due under the FLSA.