Legal Cases Could Give Feds More Overtime Compensation, Appeal Rights

One recent federal court decision could change the way agencies dole out overtime, while another will provide federal employees with more appeal rights when faced with adverse actions.

In Mercier v. United States, two nurses at the Veterans Affairs Department sued their employer for not paying out overtime they were forced to work. VA argued the overtime was not “officially ordered or approved,” as is required in federal regulations for the payment of overtime compensation, and therefore the nurses were not entitled to the bonus pay.

Raymond Clevenger, a judge on the Court of Appeals for the Federal Circuit, ruled in favor of the nurses and remanded the case back to Federal Claims Court, which had dismissed the nurses’ suit. David Cook, the attorney representing the nurses, told Government Executive VA had “induced” the nurses to work overtime with a practice called “view alerts” that required nurses to attend to patients.

While there was no official, in-writing overtime agreement between VA and the nurses, they were essentially forced to work overtime without being compensated. Generally, federal policy since the 2004 case Doe v. United States has been not to pay overtime when the extra work was “induced” rather than “officially ordered or approved.”

The Justice Department, working with VA, argued the precedent from the Doe case, and two underlying Supreme Court cases that led to the Doe ruling, meant VA did not have to pay overtime to the nurses. The nurses countered the Doe ruling was interpreted erroneously and the Supreme Court cases did not apply, and the Appeals Court agreed.

Cook said he had not yet had time to consider whether the ruling would eventually apply to the entire federal workforce, and Clevenger’s ruling did not formally broaden the applicability.  The judge did write, however, that the Doe ruling did not override a previous precedent to pay federal employees overtime -- whether “induced” or formally ordered -- as the government has argued since it was issued.

The Office of Personnel Management would not comment on its current or future “induced” overtime policy, as it could be influenced by the pending litigation.

The court held that the government’s pre-Doe interpretation -- that induced overtime signifies it being officially ordered or approved and therefore requires the payment of overtime compensation -- “remains good law.” It further ruled that interpretation of the 1945 Federal Employee Pay Act applied to Title 38 of the U.S. Code -- federal laws that apply specifically to VA and its workforce -- and therefore the nurses were entitled to overtime compensation.

Cook said he will seek to apply the ruling to the “class” of Title 38 nurses, which would allow thousands of VA employees to affirmatively opt into the lawsuit.

The Court of Appeals for the Federal Circuit was also involved in a case last week that will grant federal employees new appeal rights when faced with a certain adverse actions. The court updated a December ruling in which it reaffirmed tenured feds -- those who have worked at their agency past the probationary period -- can appeal an OPM ruling that they are not suitable for federal employment. This often occurs when OPM finds new hires falsified their applications, allowing the human resources agency to unilaterally require the employing agency fire the employee.

In [OPM Director Katherine] Archuleta v. Hopper, OPM challenged MSPB’s authority to hear an appeal on a suitability case, but the court sided with MSPB. Last week, the court clarified employees can also appeal an OPM decision to debar them from or cancel their eligibility for federal service. The court has also said MSPB can consider the employee’s performance up to that point, as well as the Douglas Factors, in determining whether OPM’s removal decision should be overturned, reduced -- as was the case with Hopper -- or upheld.

The American Federation of Government Employees, which helped defend Social Security Administration employee Tony Hopper, has said the decision helped make “crystal clear” federal employees have the right to appeal terminations. 

“This is a major victory for AFGE, for our members and for every federal employee,” AFGE President J. David Cox said. 

(Image via Sebastian Duda / Shutterstock.com)