A Federal Judge Will Allow a Federal Worker to Pursue Overtime Backpay From Training

A federal judge last month allowed a lawsuit from a Federal Bureau of Investigation employee seeking back pay for missed overtime payments stemming from participation in a job training course to proceed, challenging federal regulations barring federal workers from receiving overtime accrued in connection with entry-level training.

The FBI employee, unnamed in the lawsuit, had transferred within the agency to become an intelligence analyst, a position that requires new employees to undergo the FBI Basic Field Training Course, which includes a combination of in-person training sessions, in addition to a number of activities outside normal work hours, including completing assessments, writing reports, studying materials, among other things. Although the plaintiff claimed to have worked more than a 40-hour work week over the course of his training, he was not compensated with overtime pay.

That’s because the Office of Personnel Management, which administers the Fair Labor Standards Act for the federal workforce, has issued regulations stating that employees are ineligible for overtime pay in connection with “entry level training.” The Labor Department administers the law for the private sector, and has no such restriction on overtime pay in training settings, provided that the training is mandatory.

Judge Stephen S. Schwartz, of the U.S. Court of Federal Claims, previously indicated in a case involving a Defense Department trainee last year, that he believed OPM’s regulations on overtime pay for trainees could be “invalid,” because they are not consistent with the Labor Department’s regulations on the same topic, implementing the same law. But in that case, rather than moving forward to test those arguments by their merits, the federal government settled with the Defense Department employee, ending the case.

In the more recent case, the government did offer a rationale for its difference in regulations: the Government Employees Training Act rules out overtime pay for feds’ training time, although those rules aren’t applicable in cases involving the Fair Labor Standards Act. But Schwartz was not convinced by the argument.

“Defendant argues that because OPM’s authorization for overtime pay under FLSA is an exception to the pre-existing statutory prohibition in GETA, it should be interpreted narrowly,” Schwartz wrote. “It is not evident what that has to do with entry-level training specifically, considering that OPM has authorized overtime compensation for other kinds of training. Once OPM permits overtime for training, excluding entry-level training is an arbitrary deviation from FLSA.”

Schwartz thus denied the government’s motion for a summary judgment in their favor, and allowed the case to move forward to discovery and, eventually, trial.

“Because defendant briefed its motion under the wrong legal standard, the parties have not fully developed the correct one,” he wrote. “Nor is it clear how the correct test applies to the facts of plaintiff’s training. I therefore cannot conclude that defendant has established that there is no dispute of material fact or that defendant is entitled to judgment as a matter of law.”

Daniel Rosenthal, an attorney representing the FBI employee in the case, said that the government is currently considering whether to seek permission to appeal Schwartz’s ruling. If the case moves forward, he said a judgment in his client’s favor would simply provide back pay for the overtime he accrued during the training course, although he hoped such a decision would prompt OPM to reconsider its regulations on the topic.

“It would hopefully give OPM a good reason to think about rewriting the regulations, but the only thing that we’ve asked for in this case is back pay for the employee,” he said.