August 24, 2000 In the Matter of the Petition by BERNEY C. HALSELL 114 Pierce Drive at Beebe, AR 72012-9331 P.S. Docket No. DCA 00-197 APPEARANCE FOR PETITIONER: Berney C. Halsell 114 Pierce Drive Beebe, AR 72012-9331 APPEARANCE FOR RESPONDENT: Larry Hensley Manager, Labor Relations United States Postal Service 4700 E. McCain Boulevard Little Rock, AR 72231-9401
FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982
Petitioner, Berney C. Halsell, filed a timely Petition after receiving a Notice of Involuntary Administrative Salary Offsets on May 11, 2000. This Notice stated that the Postal Service intended to withhold $1,166.34 from Petitioner’s salary to recover alleged overpayments in salary received by Petitioner in 1998 and 1999.
A hearing1 was held in Little Rock, Arkansas, in which the parties presented evidence and made arguments in support of their positions. In addition to the transcript of the hearing, the record also contains Petitioner’s exhibits P-1 through P-7 and Respondent’s exhibits R-1 through R-4.
FINDINGS OF FACT
1. Petitioner is a level 16 Supervisor of Distribution Operations (SDO), which is a special exempt position with the Postal Service. An employee in a special exempt position is entitled to receive extra straight time pay for any time worked over 8.5 hours in a day or 40 hours in a week. (Transcript page (Tr.) 9).
2. On occasion, Petitioner would perform the duties of a level 20 Manager of Distribution Operations (MDO), which is an exempt position. An employee in an exempt position is not entitled to receive additional pay for time worked in addition to a 40-hour workweek. (Tr. 9-12).
3. A review of Petitioner’s payroll records, conducted in October of 1999, indicated that he had been paid 65.5 hours additional straight time for work as a level 20 MDO in pay periods 11/98, 1/99, 2/99, 5/99, 7/99, 8/99, 12/99, 13/99, 16/99 and 17/99. Petitioner performed the extra straight time work as a level 20 MDO on a scheduled day off during each pay period and while working the bulk of the workweek in his level 16 special exempt position. The additional work as a level 20 MDO never exceeded 8 hours in any of the work weeks. (Tr. 17-37; Respondent’s Exhibit R-4d; Petitioner’s Exhibit P-3).
4. In each case, Petitioner was directed by his superiors to perform the overtime work in the level 20 MDO position during the pay periods in question (Tr. 53).
DECISION
Respondent argues that when a special exempt employee is detailed to a higher level exempt position, that employee is not entitled to receive additional straight time pay for hours worked in excess of forty hours in a workweek. Respondent acknowledges that this regulation was changed effective October 23, 1999, but notes that the back pay sought from Petitioner is for overtime work performed before October 23, 1999. Petitioner argues, simply, that he performed the overtime work by direction and should be reimbursed for his efforts.
Respondent is incorrect in determining that Petitioner should be treated as an FLSA exempt employee for an entire workweek (or pay period) whenever Petitioner is directed to perform a day or less of overtime work in an exempt position during the work week. The definition of an FLSA exempt employee is found at section 444.3 of the then current Employee and Labor Relations Manual. Critical to the definition of an exempt employee is that the employee does not devote more than 20 percent of the hours worked in the workweek to non-exempt work. Employee and Labor Relations Manual, (ELM 13, June 1998). In this case, the 65.5 hours of extra straight time in a level 20 exempt position occurred over ten pay periods and never exceeded 8 hours in any one work week (Finding of Fact No. 3). Clearly Petitioner’s non-exempt work in these pay periods exceeded 20 percent of his total work hours. Accordingly, Respondent was incorrect to treat Petitioner as an exempt employee and may not recover the 65.5 hours of extra straight time it paid Petitioner for work in excess of 40 hours in a week during these pay periods.2
The Petition is sustained. Respondent may not recover $1,166.34 from Petitioner’s salary.
William K. Mahn Administrative Judge