On June 13, the Office Of Compliance (“OOC”) denied the United State’s Capitol Police’s claim that it did not have to arbitrate a union’s claim that it violated the Fair Labor Standards Act. While acknowledging the arbitrability of FLSA claims in the Executive Branch under the 1978 Federal Service Labor Management Relations Statute, the Capitol Police alleged (among other things) that the 1995-enacted Congressional Accountability Act (CAA), narrowed the scope of arbitration because of the CAA’s special enforcement scheme. The Capitol Police’s argument was that an arbitrator lacks authority to entertain FLSA grievances because Title IV of the CAA creates an administrative and judicial dispute-resolution procedure for claims under the various employment and workplace statutes identified in the CAA.

That procedure provides, under the administration of the Office of Compliance, for mandatory counseling and mediation before a covered employee may elect to either pursue an administrative hearing before a Board appointed hearing officer or to file a civil action in an appropriate district court. Under this regime, the Board of Directors decides appeals from hearing officer decisions, and the Board’s decisions are subject to judicial review by the Court of Appeals for the Federal Circuit.

The OOC rejected this argument, stating that, “It is plain that the CAA provides for arbitration of grievances seeking to enforce laws affecting conditions of employment.” Among the laws having the most prominent effect on working conditions, according to the OOC, are to the FLSA. Excluding a law like FLSA from the scope of arbitrability “largely would render nugatory and make a mockery of the labor-management relations program applied to the Legislative Branch by section 220 of the CAA.” The OOC did not accept the Capitol Police’s argument that it was undermining its own authority and an abdication of its responsibilities under the CAA.

The Capitol Police had also challenged the arbitrator’s award of liquidated damages. The arbitrator found that liquidated damages are the norm for FLSA violations and that the Capitol Police did not meet its burden for defending against an FLSA liquidated damages claim–good faith, and a reasonably held belief that it had acted lawfully. The OOC upheld the arbitrator’s award of liquidated damages, finding that the “arbitrator had a clear legal and factual basis to premise his award of liquidated damages upon the employing office’s underlying violation of the FLSA for its admitted approximately 28-month delayed payment of overtime wages to bargaining unit employees.”

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **