LEO, AUO, FLSA and 5 CFR 610
When can a federal law enforcement officer (LEO) claim FLSA time and one-half overtime pay if he already is paid administratively uncontrollable overtime (AUO) to work hours beyond the normal 40 hour shift?
AUO permits agencies that cannot predict precisely when overtime must be worked to pay the employee a constant salary differential, e.g., 25% of base pay to cover what he/she is most likely going to work. If the employee only works 45 hours a week, he is way ahead financially. But if he works 55 hours, he is getting less than FLSA overtime would pay him. One way to make up for working beyond the point where the hourly overtime rate is less than time and one half is to claim that some of the 55 hours, for example, should have been paid under FLSA.
The code of federal regulations spells out when an employee can insist on FLSA compensation over and above any AUO he/she is already paid. Here is how FLRA explained the difference. “A federal LEO eligible for both AUO and FLSA overtime may recover FLSA overtime only by: (1) showing that his or her “supervisor scheduled the overtime in advance of the administrative workweek”; or (2) meeting the fact-specific test set out in 5 C.F.R. § 610.121(b)(3). Section 610.121(b)(3) provides that an employee is entitled to FLSA overtime if the agency head or a supervisor delegated the power to schedule the employee’s overtime “should have scheduled a period of work as part of the employee’s regularly scheduled administrative workweek and failed to do so.” Specifically, an employee must show that the supervisor: (1) “[h]ad knowledge of the specific days and hours of the work requirement in advance of the administrative workweek”; and (2) “had the opportunity to determine which employee had to be scheduled, or rescheduled, to meet the specific days and hours of that work requirement.”
NFFE filed a grievance on behalf of the law enforcement officers in its Forest Service unit assigned to eradicate marijuana fields in national forests. The work is performed exclusively on Friday between June and October each year. On two specific days during that period the supervisor coded the extra hours as AUO work rather than FLSA. When the dispute went to an arbitrator, he agreed with the union. He found that despite some variation in the amount of overtime necessary to complete an eradication, the amount of overtime required to perform the eradications in question was reasonably predictable. With respect to the specific days, the Arbitrator “note[d] that the testimony is undisputed that [the supervisor] essentially knew that the eradications would be conducted on [the dates in question]; [and] that they would be performed – most likely – on an overtime basis.” Regarding the specific hours, the Arbitrator concluded that the grievants’ supervisor “could have reasonably predicted the time required” for the eradications.
When the agency filed exceptions alleging the arbitrator incorrectly applied the law, FLRA disagreed and upheld the award. (NFFE, 67 FLRA 558 (2014))
This is another example of representational work the union could do without any employee coming to it with a specific problem. It can examine how overtime work is typically charged and if it finds an error file a grievance on behalf of all harmed employees for back pay or just contact the harmed employees individually and ask them if they want the union to include them in the grievance. The second approach just might drive home to chronic non-members the value of being in the union.