Looking for the Elusive Pot of Gold

Some 14,000 federal employees sought more overtime pay contending they had a property right to higher compensation under the U.S. Constitution

Looking for the pot of gold at the end of the rainbow, which is sometimes found through the American legal system, some 14,303 federal employees sought more money from their agencies contending they were not getting enough money for overtime hours.

These 14,000+ federal employees were employed between 1984 and 1995 as GS-9, GS-11, GS-12, and GS-13 criminal investigators in various federal law enforcement agencies, including the Bureau of Alcohol Tobacco and Firearms (“BATF”), the Drug Enforcement Agency (“DEA”), the Internal Revenue Service (“IRS”), the United States Customs Service (“Customs Service”), and the United States Secret Service (“USSS”).

The gist of their argument is that while they were paid overtime, they were not paid enough overtime. They were paid under the Federal Employees Pay Act (“FEPA”) at a rate less than one-and-one-half times their regular rate of pay.

But in their lawsuit, they contend they should have been paid at a higher rate specified under the Fair Labor Standards Act (“FLSA”) which is at least one-and-one-half times their regular rate of pay, rather than at the lower rate provided for in the FEPA.

In other words, they were suing to try and get paid the difference between what they received under the FEPA versus the amount they would have received under the FLSA.

To try and snatch the gold at the end of this particular rainbow, the employees argued they had a property interest in the additional overtime payment because of the Fifth Amendment of the Constitution. This section states that the government cannot take property with just compensation (“nor shall private property be taken for public use, without just compensation.”)

The Constitution doesn’t define the “property” to which it is referring in the Fifth Amendment but various court rulings have included a wide variety of items that can be considered “property.” Or, as quoted by the Court of Appeals, “Property interests are about as diverse as the human mind can conceive.”

But, having said that, the Court didn’t agree. While many things can fall under this provision of the Constitution, overtime payment for federal employees isn’t one of them. In the legalese used by the Court: “Appellants confuse a property right cognizable under the Takings Clause of the Fifth Amendment with a due process right to payment of a monetary entitlement under a compensation statute.”

Moreover, while there was no dispute that the Appellants did the overtime work, federal employees are appointed. Their employment terms are determined by statute and not by contract. They did not have a separate agreement with the Government for additional overtime compensation.

In effect, they wanted more money based “on nothing more than a unilateral expectation to receive FLSA, rather than FEPA, overtime compensation….”

You can download the full decision from the link on the left hand side of this page.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47