|
| |
Human Resources Management Division
Frequently Asked Questions
OPM (Federal Employees & the Fair Labor Standards Act-FLSA)
| Q. |
Two years ago, a non-exempt employee was promoted to an exempt position. What is the length of time this
current exempt employee can file a claim for back pay?
|
| A. |
The time limits start when the money is due. In effect, a new statute of limitations period starts with each pay period. The right
to claim any unpaid compensation expires after either 2 (or 3) years for FLSA claims or 6
years for Title 5 overtime claims. An employee can preserve the claim by filing a claim with the agency. Once the claim is filed, it doesn't matter how long it takes to
process the claim, the employee always will be able to recover for the 2/3 or 6-year period before the date the claim was filed.
So, if the employee filed a claim today (8/17/99) for overtime under the
FLSA, the employee could recover for any claims from August 17, 1997 (or 1996 for willful violations). If the employee filed a claim for Title 5
overtime, the employee could recover for any claims dating from August 17,1993 forward. Therefore, the employee may file both FLSA & Title 5
claims for unpaid compensation. The employee must specify that claim XXX is for FLSA, and a separate claim XXX is for Title 5. (8/17/99)
|
| Q. |
An Exempt employee would like to file a claim for overtime and has requested copies of his time & attendance
records (for the past 6 years). I thought the employee had the burden of submitting all
relevant materials for the claim. Does the State Office have to provide copies of the T&As?
|
| A. |
Yes. There are many ways to view this request. Listed below are three illustrations. (1) Let's say the employee did provide his
own copies of the T&As before they were signed by the supervisor. The State Office would
have to verify the accuracy of the record. (2) If the State Office informed
the employee that he/she had the burden of submitting all relevant materials, the
employee could file a Freedom of Information Act request. When the FOIA is received, the State Office would have to
respond. (3) Also, if the employee submitted the claim directly to OPM, then OPM
would go back to the agency for copies of the T&As. No matter how you look at it, eventually the State Office would have to pull the T&As for
review. This response is also applicable to non-exempt employees. (7/16/99)
|
| Q. |
We have a non-exempt employee who lives 3-4 hours from his duty station and is on a compressed work
schedule. During the week, the employee stays in a motel. If an employee returns home
on Thursday and is called back to work on Friday (non-duty day), is he compensated for time spent traveling from home to duty station?
If the employee is to report to a site (outside the 50 mile radius) early Monday morning, would he be paid for travel from
duty station to his temporary duty station on Sunday (if he travels during
his regular working hours)?
|
| A. |
No. The employee can not be compensated for time spent traveling from home to duty station. GAO & IRS constitute a
residence as where you commute to and from work every day (for example, Motel 6). The
employee chose to live 3-4 hours from the duty station. Home to work travel is explained in 551.422(b). Yes, the employee is compensated for
driving on Sunday during regular working hours from duty station to temporary site (551.422(a)(2)). (7/2/99)
|
| Q. |
When does a nonexempt part-time employee start receiving overtime compensation? Is it after 40 hours in a
workweek or, if they are working 32 hours a week, is it after 32 hours?
|
| A. |
Before the above questions are answered, here is some background information on FLSA. The FLSA Act of 1938 was
created after the Depression. After the Depression, employees were working long hours for
many consecutive days. The Act provided minimum wages, maximum hours of work, child labor, etc.. These provisions in the Act spread the
work around and more people were able to be employed. The work day was limited to 8 hours (anything in excess of the 8 hours needed
compensation). Therefore, a part-time employee would have to work in excess of 8 hours in a day or over 40 hours in a week to
receive overtime compensation. (7/2/99)
|
| Q. |
We have employees that drive 3 hours to an evening board meeting. The meeting lasts 3 hours; then the
employees return home (again about 3 hours). In remote locations, there are no hotels
for the employees to spend the night. Therefore, they drive home and often arrive after midnight. Do we use the one-day travel
(outside official duty station) rules, or do we use the multiple day rules to determine overtime for the travel?
|
| A. |
There are two options to this scenario. Since there were no accommodations where the meeting was held, the employees had
no choice but to drive home. They arrived home after midnight; therefore, you
would use the multiple day rules to determine overtime for travel. Another
option would be to change their tour of duty from 4:00 p.m. to midnight. Night differential pay would kick in at 6:00
p.m. This change of tour would have to be scheduled in advance of the administrative work week. Usually
board meetings are scheduled in advance; therefore, the change in tour can
be accomplished before the beginning of the administrative work week. (Before you change the employee's tour for the day in question, check and
see if this is a bargaining unit employee). (7/2/99)
|
| Q. |
Where does an FLSA Exempt employee send a claim for back pay of overtime worked?
|
| A. |
An exempt employee, like non-exempt, files their claim with their servicing human resources office. However, if the Exempt
employee disagrees with the servicing human resources office's determination, they
may send the claim to the Claims Adjudication Unit, Office of the General Counsel, Office of Personnel Management, 1900 E Street, NW, Room
7353, Washington, D.C. 20415-0001. Notice the employee does not have the option of going to the Department OR OPM if they disagree with
the servicing human resources office's determination.
Conversely, if a Non-exempt employee disagrees with the servicing human resources office's determination, they may send the
claim to either the US Department of Agriculture OR the Claims Adjudication Unit, Office of
Personnel Management.
Employees should be informed that if they elect to send their claims directly to OPM, then OPM's decision is final and there are no
further appeal rights (like a classification appeal). (7/8/99).
|
| Q. |
Is there a deadline for employees to file FLSA or Title 5 claim for overtime payment?
|
| A. |
No. When an employee files a claim, the date the claim is received in the office preserves the claim. The receipted date of the
claim will determine the period of possible entitlement to back pay (i.e., 2 years, 3
years for willful violation, or 6 years back from the date the claim was received).
(6/23/99)
|
| Q. |
Since former employees are also entitled to file a FLSA/overtime pay claim, do we have
to notify them via public notice?
|
| A. |
No. The Office of General Counsel stated there is no such obligation on part of the agency. (6/16/99)
|
| Q. |
Rural Development distributed a question and answer update regarding
FLSA. One question had to do with exempt employees filing a claim for overtime pay and if the same 2-year claim period
applied. Does the same 2-year period apply?
|
| A. |
No. After some research, a Title 5 employee is covered by the Barring Act of October 9, 1940. The Act provided for the
barring of claims against the United States unless the claim was received in the office within
ten full years after the date such claim first accrued. Since 1940, the period
changed to 6 years. This Act was codified at 31 USC 3702(b)(1). Therefore, a claim
from a Title 5 employee must be received by the agency or OPM within 6 years after the claim accrues. (6/16/99)
|
| Q. |
In our FLSA/Title 5 reference materials, some tabs make reference to "compensable" under FLSA or Title 5. I'm
confused, why would employees receive overtime money or compensatory time during normal working hours?
|
| A. |
The term compensable only means to make payment or reparation. It does not solely mean to make payment in the form of
overtime money or compensatory time. As an example, Tab 11, has to do with Training as
Hours of Work. Time spent in training during normal working hours is considered hours of work. It does not mean you pay an employee
overtime or comp. time in addition to their regular salary when the training
occurs during normal working hours. (6/16/99)
|
| Q. |
My State Conservationist would like to issue a blanket statement that there will be no authority or approval given
for time and 1/2 overtime. If employees want to work compensatory time and the supervisor agrees, then supervisor
can approve comp. time. Is this a problem?
|
| A. |
Yes, this could lead to a problem. Remember, 5 CFR Section 551.531 specifically prohibit any employee from directly or
indirectly,...coerce any other employee for the purpose of interfering with the employee's right to
request or not to request compensatory time off in lieu of payment for overtime. Although the same cautionary language is not found in 550.144
for exempt employees, management should not interfere with the employee's right to elect compensatory time. Although not thoroughly
discussed here, you also need to consider the employee's salary (GS-10/10), type of work schedule and type of overtime. (6/16/99)
|
| Q. |
Regarding multiple time zone travel, what exact regulatory citation is the source of the principle set forth at Tab 9,
Page 5, Section F (FLSA/Title 5 reference material)?
|
| A. |
The multiple time zone issue was discussed in Comptroller General Decision B-229355, dated November 22, 1988. The CG
requested OPM's views on several matters in this case. "The report points out that in
Paragraph F-3 of the attachment to Federal Personnel Manual (FPM) letter 551-10, OPM has informed agencies that when travel involves two
or more time zones, the time zone of the point of first departure control the
number of hours of work that workday." Although the decision refers to the now
sunset FPM material, it is still valid information. (6/16/99)
|
| Q. |
Where does NRCS define the mileage of 50 miles to determine whether an employee's travel is within or outside
the limits of the employee's duty station?
|
| A. |
NRCS has defined the mileage radius in the interim policy to 360 GM Part 427, Hour of Duty, which will be issued shortly. 5
CFR Section 551.422(d) states that "an agency may prescribe a mileage radius of not
greater than 50 miles to determine whether an employee's travel is within or outside the limit of the employee's official duty station....overtime pay for
travel." This is also reiterated in 550.112(j). We also took into consideration field offices being consolidated into service centers and
cooperators having to travel 50 miles or more to receive service. (6/16/99)
|
| Q. |
What do the Federal Travel Regulations or USDA regulations state regarding such a defined radius of distance?
|
| A. |
The Agriculture Travel Regulation, Chapter 301 Travel Allowances, Part 301-7 Per Diem Allowances, dated October 3, 1994,
has two separate mileage requirements for travel within one calendar day or travel
or more than one calendar day. Basically, if the travel is within one calendar day and performed within a 25 mile radius of the employee's
official duty station, per diem will not be paid. If the travel of more than
one calendar day is performed within a 35 mile radius of the employee's official duty station, per
diem will not be paid. (6/16/99)
|
| Q. |
What is the exact wording that permits the earning of credit leave while in transit and not travel status in and
around the official duty station?
|
| A. |
This was first attached to the draft maxi flex policy as a question and
answer dated 1991. It was from a Financial Management electronic message dated June 25, 1991, subject: Travel and Maxi flex Tour of Duty, Fiscal Comm.#1-24. (6/16/99)
|
| Q. |
How do I set the overtime rate for an Engineer, GS-810-12 Step 9 when there is no
Grade 10 on the Special Salary Table?
|
| A. |
Since there is no Grade 10 on the engineer salary table, you would use the applicable pay table for that area (i.e., locality pay, Rest of the US).
Keep in mind that OPM regulations allow management to require that an employee whose basic rate of pay exceeds the
GS-10 STEP 10 be compensated for irregular or occasional overtime work with compensatory
time off instead of overtime payment. (6/7/99) |
Send comments on this page to Webmaster
Last updated: March 14, 2002
< Back to the Human Resources Management Division
| |
|
About Us
Back to Top