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Office of Personnel Management FLSA Overtime Grievance

In June of 2004, the American Federation of Government Employees Local 32 filed a grievance against the United States Office of Personnel Management on behalf of all bargaining unit employees. The Grievance alleged violations of the Fair Labor Standards Act (FLSA), a federal law that protects the rights of American workers.

The Law Offices of Snider and Associates, as the legal representatives for the Union, are working hard for the bargaining unit employees to ensure that their rights under federal law are upheld. As part of the process, we have been busily contacting AFGE local 32 OPM grievants about their job duties and how much unpaid overtime they have worked.

Status

In September, 2005, the Union and the Agency reached a partial settlement agreement that covered employees reclassified by OPM in three separate phases. Some employees have received payment for their claims, after a lot of bureaucratic hassle. Others are still waiting for payment. The Union is still awaiting a clear accounting from the agency reflecting who was paid what monies and when.  After that is cleared up, the remaining employees will be addressed.

There are hundreds of other Local 32 employees in the BU whose FLSA cases have not been decided yet. This includes many employees who are still exempt, whose positions the Union contends should also be non-exempt and who the Union believes are owed money. There are other employees who would have been reclassified in the first partial settlement agreement, but who were promoted during the pendancy of the Grievance and 'fell through the cracks.' Their cases have NOT been waived by the Union and will be pursued.

There are other employees who have always been non-exempt, but who worked "off the clock" or were not allowed a choice of OT versus Comp Time and the Union will be seeking damages on their behalf as well.

Who is covered by the Grievance?

All bargaining unit employees whether or not they members of the union, are covered by this grievance.

What is the FLSA?

The FLSA protects Federal employees' rights by providing time-and-a-half pay for overtime work, payment for work "suffered and/or permitted" by the agency (not ordered or approved) and the right to choose overtime instead of comp time. But not every Federal Employee is covered by the FLSA. If an employee is exempt (not covered by the FLSA), he or she gets capped overtime for Ordered and Approved overtime (under Title V, not the FLSA), a "thanks for staying late" (if you're lucky) for overtime that is not ordered and approved, and can be forced to take comp time for ordered and approved work.

There is a lot of confusion among federal employees as to who is covered by the FLSA, based on years of the Federal Government not following the law properly. A lot of people think it depends on your grade or on your job title. But, that's not true. The only thing FLSA coverage depends on is the actual job duties each employee performs.

That's why attorneys and paralegals from Snider and Associates have been calling OPM employees to find out about their jobs. The union needs to be ready to show the Agency and a Mediator or Arbitrator that the work that employees are doing is covered by the FLSA. Your cooperation in truthfully describing your job to Snider and Associates will help the Union prove that you have wrongfully exempted from the FLSA. If you have not been called yet, you can call 410 653-9060 and ask for any of the FLSA paralegals, or take our online survey.

How will this grievance affect me?

The law says that when a federal employee works for his or her Agency, the Agency has to pay that employee. If an employee worked but didn't get paid, the Agency owes that employee money for the time spent working. In legal terms, the employees must be "made whole," which means that the Agency pays the employee what he or she is owed, under the law.

Employees are underpaid when they receive capped overtime instead of uncapped overtime, comp time instead of uncapped overtime, and are not paid at all for "suffered and permitted" overtime that was not ordered or approved.
In short, an employee who is not classified properly under the FLSA may have been underpaid for their work in the past. In such a case, the agency would owe the employee their due compensation.

Attorneys and paralegals from Snider and Associates have been calling OPM employees to find out how much time people have been working without getting paid properly. They also have been discussing what kind of evidence the Union can present to prove that employees have been coming to work early, working through lunch, leaving late, taking work home, and coming in on weekends and Federal Holidays. If you have not been called yet, you can call 410 653-9060 and ask for any of the FLSA paralegals, or take our online survey.

What must be done to prove our case?

There are two separate things that must happen so that the grievants can be made whole. The first is that OPM has to fail to prove that it properly classified each grievant. The Union's position is that the Agency has blatantly mis-classified nearly all grievants, from GS-6 all the way up to GS-15. As a result of this misclassification, employees have been underpaid overtime, were forced to take comp time instead of overtime, and were not paid for "suffered or permitted overtime," or "off the clock" work.The Agency has the burden of proof, "beyond a reasonable doubt," in this "liability" phase. The second thing that must happen is proving "damages." The Union must prove that employees actually performed work for the Agency for which they were not paid, that under the law they should have been paid for if they had been classified FLSA non-exempt. This is in addition to "underpaid" overtime and "comp time" damages.

If you would like further information about this grievance and how our firm is working for you, please contact your union or our offices at (410) 653-9060.

 

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