Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—Fed. Cir.: Court of Federal Claims erred in finding trainee overtime carveout invalid, (Mar 3, 2025)

By Jason Albright, J.D.

OPM regulation 5 C.F.R. § 551.423(a)(3) bars overtime pay for entry-level training.

The United States Court of Federal Claims erred in holding OPM regulation 5 C.F.R. § 551.423(a)(3) invalid in a case in which an entry-level FBI intelligence analyst trainee sought overtime pay on behalf of the plaintiff and similarly situated employees who participated in an FBI Basic Field Training Course that allegedly involved activities scheduled outside working hours or to be completed on the employees’ own time. OPM’s decision to narrow an exception in the Government Employees Training Act (GETA) by separately defining “hours of work” for entry level training was a legitimate policy choice in light of the agency’s duty to regulate in a manner consistent with both GETA and the FLSA, the appeals court found (Doe No. 1 v. United States, No. 2023-1653 (Fed. Cir. Mar. 3, 2025)).

Intelligence analyst trainee. The plaintiff, hired to be an intelligence analyst with the FBI, had to complete the FBI Basic Field Training Course (BFTC). The BFTC required the plaintiff to complete in-person training sessions, as well as various tasks and assessments. Some activities were scheduled outside working hours or had to be completed on the plaintiff’s own time.

Overtime complaint and defense. The plaintiff filed a complaint in the Court of Federal Claims, on behalf of the plaintiff and all others similarly situated, alleging that the plaintiff was not compensated for all overtime hours worked during the BFTC. The government moved for summary judgment on the ground that BFTC participants are entry-level trainees and therefore ineligible for overtime compensation under OPM regulation 5 C.F.R. § 551.423(a)(3).

Interlocutory appeal. The Court of Federal Claims concluded that 5 C.F.R. § 551.423(a)(3) is invalid and denied the motion. Then it certified for interlocutory appeal the issue of the validity of 5 C.F.R. § 551.423(a)(3).

OPM’s authority in FLSA context. The appeals court observed that Congress gave OPM authority to administer the FLSA with respect to federal employees, despite DOL’s authority to administer the FLSA with respect to non-federal employees. 29 U.S.C. § 204(a), (f). “This division of authority between different agencies contemplates that the FLSA may be administered differently for federal and non-federal employees. The statute broadly grants OPM rulemaking authority that is neither subject to nor limited by DOL regulations. 29 U.S.C. § 204(f).”

GETA. And here, the Government Employees Training Act (GETA), codified 16 years before the FLSA was extended to cover federal employees, “generally does not allow federal employees to receive premium pay, including overtime pay, for time spent in training. 5 U.S.C. § 4109(a)(1).” The OPM regulation at issue here, in turn, which allows overtime pay for training in certain circumstances, is an exception to GETA’s general rule against such premium pay.

In short, according to the Federal Circuit, OPM’s decision to narrow this exception by separately defining “hours of work” for entry level training was a legitimate policy choice in light of the agency’s duty to regulate in a manner consistent with both GETA and the FLSA. OPM regulations pursuant to the FLSA are valid if they are consistent with the statute and, to the extent they differ from DOL regulations, any differences are justified by legitimate reasons.

The Court of Federal Claims thus erred in finding the OPM regulation invalid. The decision was accordingly vacated and remanded.

The case is No. 2023-1653.

Judge: Moore, K.

Attorneys: Michael Paul Ellement (James & Hoffman) for Doe No. 1. Rebecca Sarah Kruser, U.S. Department of Justice, for the U.S.

Cases: PublicEmployees WageHour Overtime FederalRegulations AgencyNews DistrictofColumbiaNews