The Fair Labor Standards Act (FLSA) and Unpaid Overtime

Several of our members have inquired about the AFGE settlement with EPA regarding unpaid overtime.  NTEU280 was not a party to this lawsuit or to the settlement.  Therefore, we cannot answer questions about the details of the lawsuit or its settlement, and  we will refer all interested parties to AFGE for further information.

It is our chapter's understanding that AFGE sued EPA for unpaid overtime for their bargaining unit employees who should have been covered by the Fair Labor Standards Act (FLSA), including those who were incorrectly classified as FLSA-exempt by the agency.  It is also our chapter's understanding that the FLSA status of these employees has been corrected and that many employees will be receiving payment for uncompensated overtime they have already worked and for which they are entitled to compensation. 

FLSA-covered employees are generally employees who are in non-professional titles such as environmental protection specialist, management analyst, program analyst, secretary, etc.  Those in professional job titles such as attorney, scientist, engineer, economist, statistician, accountant, etc. are generally FLSA-exempt employees.  Therefore, NTEU280 bargaining unit employees are generally FLSA-exempt employees. 

Although FLSA-exempt, employees in the NTEU280 bargaining unit are still entitled to compensation for overtime work – specifically, under the Federal Employee Pay Act, professional employees are entitled to either our regular pay rate for overtime or compensatory time off.  Our employees are not entitled to the same overtime as FLSA-covered employees, who are typically entitled to 1.5 times their regular rate of pay.  Also, FLSA-exempt employees’ overtime must be officially ordered or approved; whereas FLSA-covered employees’ overtime may include work that is “suffered and permitted.” 

And there is an additional wrinkle:  whether an employee is covered by FLSA is driven by the individual’s actual duties, among other factors.  Although NTEU280 bargaining units employees are in professional titles that are generally FLSA-exempt, this may not be true of each and every individual.  FLSA status may be challenged on an individual employee basis.  For example:  An individual in a professional title (e.g., economist) who actually performs mostly non-professional duties (e.g.,  duties of a program analyst) may challenge his or her FLSA status.  If such a challenge is made, there is some risk that,  if management determines that enough of the duties are no longer professional duties, the employee's job title might be changed to a non-professional title.