Entitlement to Retroactive Overtime Pay

B-200112: Dec 21, 1981

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A Federal Aviation Administration (FAA) official requested a decision concerning the entitlement of certain electronic maintenance technicians to retroactive payment for overtime under the Fair Labor Standards Labor Act (FLSA). On the effective date of FLSA coverage for Federal employees, the technicians were considered nonexempt by FAA and covered under the Act. However, the agency failed to make FLSA overtime payments to these employees in 1974 and 1975. As a result, several employees filed a complaint with the Office of Personnel Management (OPM) seeking backpay. OPM ruled that the employees were exempt under the Act due to their work in a professional occupation. Because of the OPM decision, FAA decided that all technician positions would be exempt. When two employee unions registered complaints, OPM ruled that technicians were nonexempt under the Act since they failed to meet two of the professional exemption criteria. In 1979, as a result of a lawsuit, FAA agreed to change the designation of 39 technicians from exempt to nonexempt and to make FLSA payments. In 1980, for consistency, FAA changed all technicians' status from exempt to nonexempt. With respect to both present and past technicians, FAA desired to make backpay payments for FLSA overtime entitlement to 1974. GAO concluded that, since OPM posed no objection to the changed designation or the retroactive entitlement, the technicians were entitled to payments under FLSA retroactive to 1974. However, GAO stated that claims for retroactive payments are subject to the 6-year statute of limitations which may only be tolled when claims are filed with GAO and not by agency actions.