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
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
05/17/2016
Date
As provided in section 551.708 of title 5, Code of Federal Regulations (
The agency is to review whether the claimant has worked overtime in accordance with instructions on page 4 of this decision, and if the claimant is determined to be entitled to back pay, the agency must pay the claimant the amount owed him. If the claimant believes the agency has incorrectly computed the amount owed him, he may file a new FLSA claim with this office.
Introduction
On January 12, 2011, the U.S. Office of Personnel Management (OPM) received a letter dated January 12, 2011, from the Law Offices of Bernstein & Lipsett, P.C. (B & L), the claimant’s duly appointed representative, concerning a Fair Labor Standards (FLSA) claim they had initially filed on the claimant's behalf with the General Accounting Office (GAO), now the U.S. Government Accountability Office, on March 15, 1995, and subsequently with OPM on or about September 9, 1999. The claimant was a plaintiff in a lawsuit filed in the U.S. Court of Federal Claims at approximately the same time the administrative claim was filed with GAO. Based on information provided by B & L, claimant was awarded back pay under a settlement agreement signed on November 22, 2006, subject to the two-year statute of limitations for FLSA claims under 29 U.S.C. § 255(a).
B & L has requested OPM adjudicate the administrative claim filed with OPM, and asserts that, because claimant served in the military during the Gulf War, the statute of limitations applicable to this claim is the five-year statute of limitations under 31 U.S.C. § 3702(b)(2) rather than the two-year statute of limitations (three years for willful violations) applicable to FLSA administrative claims filed under the Barring Act. See 73 Comp. Gen 157 (May 23, 1994); 31 U.S.C. 3702(b); 29 U.S.C. § 255(a). B & L states the claimant was called to active duty with the United States Army Reserve from approximately October 1, 1990, to April 9, 1991, in connection with Operation Desert Shield/Storm and, citing the provisions of 31 U.S.C. § 3702(b)(2), states: “It is our view that this provision entitles [our client] to recover on his FLSA administrative claim for the period retroactive to five years prior to the commencement of the Gulf War and thereafter.”
Background
We previously accepted and decided five similar claims under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.), which we denied as time barred. Subsequently, claimant’s representative brought suit under the Administrative Procedure Act (5 U.S.C. § 551 et seq., and 701 et seq.) in the United States District Court for the District of Columbia, alleging that OPM wrongfully applied a two-year statute of limitations in denying their administrative claims for unpaid FLSA overtime pay. Armstrong v. Archuleta, 77 F.Supp.3d 9 (December 30, 2014). In relevant part, the court stated in its opinion:
All Plaintiffs are deemed to have timely filed their claims as of the date of their filings with the Claims Court. As a result, Plaintiffs . . . can recover for the entire claim period under the five-year statute of limitations- that is, for all claims that accrued within five years before the Gulf War commenced on August 2, 1990- minus monies paid under their DOJ Settlements.
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[T]he case is remanded to OPM to adjudicate and process damages in accordance with FLSA and other applicable laws, and Plaintiffs' respective employing agencies are directed to compensate them in accordance with OPM's determinations.
Analysis
Applicability of the FLSA
Under the provisions of 5
During the time period covered by Mr. Chmura’s claim, he was a Special Agent at the GS-12 grade and a Supervisory Special Agent at the GS-13 level, and the agency designated him as FLSA exempt. Mr. Chmura performed the traditional duties of a criminal investigator and may have had some level of supervision over the work of lower-graded investigators performing similar duties. However, we do not think that he had any management responsibilities within the agency. Based upon our analysis of Mr. Chmura’s claim and available records in our possession, we think that Mr. Chmura should have been designated as FLSA nonexempt during the period in question.
Based on careful review of the record, we concur with the agency’s determination. The claimant is requesting compensation for work performed from August 2, 1985, to March 6, 1993, less his active duty military service time “from approximately October 1, 1990, to April 9, 1991,” when the record shows he was properly classified as FLSA nonexempt. Therefore, USDA is required to compensate the claimant under the FLSA overtime pay provisions of 5 CFR Part 551 for overtime hours worked within the claim period as prescribed by the court; i.e., covering claims that accrued within five years before the commencement of the Gulf War on August 2, 1990, and subject to deduction for any monies paid under the claimant’s DOJ settlement agreement. In this case, the entire claim period (August 2, 1985, to March 6, 1993, not including the period from October 1, 1990, to April 9, 1991) is covered.
Computation of Back Pay
By letter dated February8, 2016, claimant’s representative responded to the AAR, stating that the agency “has acknowledged that records necessary to calculate the FLSA overtime pay that Mr. Chmura is entitled to received [sic] have been destroyed or lost.”
Claimant’s representative cited Anderson v. Mt. Clemons Pottery Co., 328 U.S. 680 (1946), which states, in relevant part:
In such a situation, we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence.
Claimant’s representative further states that a reasonable inference regarding the amount of back pay due can be drawn by referencing the terms of the aforementioned settlement agreement and calculations agreed to therein.
As an initial matter, claimant’s reliance on the aforementioned Settlement Agreement is contrary to the provisions of that agreement which states, in relevant part:
Q. This agreement is made solely for the purpose of settling the claims that it covers and for no other purpose except as provided for otherwise herein. The parties agree that this Agreement shall not be cited as precedent or referred to in this or any other proceeding for any purpose except to enforce the terms of this Agreement.
Therefore, at this stage, the Agreement may not serve as a basis for reasonable inference as to the amount and extent of overtime work performed. Once a determination of nonexemption has been made, the FLSA claims adjudication process set forth in subpart G of part 551 of title 5, CFR, requires that the claimant provide evidence of the liability of the agency and the claimant’s right to payment. See 5 CFR 551.705(c)(5) and 706(a). However, several Comptroller General decisions, including ones concerning Christine D. Taliaferro (B-199783, March 9, 1981) and Paul Spurr (60 Comp. Gen. 354), indicate that where the agency has failed to record overtime hours as required by the FLSA but the supervisor acknowledges overtime work was performed, the claimant may prevail in his or her claim for overtime compensation on the basis of evidence other than official agency records if the following two criteria are met:
(1) the claimant shows he or she performed overtime work under the FLSA for which he or she was not paid; and
(2) the claimant produces enough evidence to show the amount and extent of that work as a matter of reasonable inference.
If the criteria are met, the burden of proof shifts to the employing agency to show the precise amount of work performed or to rebut the employee’s evidence. See B-208268, Jon Clifford, et al, November 16, 1982. In the absence of official records, a list of hours worked submitted by the claimant, based on the claimant’s personal records, may be sufficient to establish the amount of hours worked in the absence of contradictory evidence presented by the agency to rebut the claimant’s evidence. See B-208203, Matter of Frances W. Arnold, February 3, 1983; OPM Decision No. F-7404-08-01, August 22, 1996.[1]
Decision
The claimant’s work is FLSA nonexempt (i.e., covered by FLSA overtime provisions), and he is entitled to compensation for all overtime hours worked at the FLSA overtime rate for the period of the claim; i.e., August 2, 1985, to March 6, 1993, less his active duty military service time “from approximately October 1, 1990, to April 9, 1991.” The agency must follow the compliance requirements on page ii of this decision.
The claimant must submit evidence showing the amount and extent of overtime that was performed as provided for in 5 CFR 551.706(a). The agency will have the opportunity to review this evidence using any other sources of information available, including witnesses, before a determination is made as to whether the claimant is entitled to any back pay under the FLSA and any interest as required under 5 CFR part 550, subpart H. Any petition for attorney’s fees and expenses must be submitted to the agency out of which this claim arose. Should the claimant be determined to be entitled to back pay which the claimant believes to be incorrectly computed, the claimant may file a new FLSA claim with this office.
[1] These procedures track the requirements of Anderson v. Mt. Clemons Pottery Co., 328 U.S. 680 (1946), cited by claimant’s representative.