Washington, D.C

U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code

---

Damon B. Ford
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


09/20/2023

---

Date

Finality of Decision

As provided in section 551.708 of title 5, Code of Federal Regulations (CFR), this decision is binding on all administrative, certifying, payroll, disbursing, and accounting officials of agencies for which the U.S. Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA). The agency should identify all similarly situated current and, to the extent possible, former employees, and ensure that they are treated in a manner consistent with this decision and inform them in writing of their right to file an FLSA claim with the agency or OPM. There is no right of further administrative appeal. This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708 (address provided in section 551.710). The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.

The agency is to review whether the claimant has worked overtime in accordance with instructions in the “Decision on FSLA Coverage” section of this decision, and if the claimant is determined to be entitled to back pay, the agency must pay the claimant the amount owed him plus interest as provided in 5 CFR 550.806.  If the claimant believes the agency has incorrectly computed the amount owed him, he may file a new FLSA claim with the Office of Personnel Management (OPM), Agency Compliance and Evaluation (ACE), Washington, DC, office. The servicing human resources office must submit a compliance report containing a Standard Form 50 showing the personnel action taken. Compliance action on this decision must be completed within 60 days of the date of this decision as provided for in 5 CFR 551.708(c)(1). The report must be submitted to OPM, Merit System Accountability and Compliance, Agency Compliance and Evaluation, Washington, DC, office.

Introduction

On April 4, 2022, OPM received a FLSA claim from representatives of the claimant [1]who is challenging the exemption status of his position and requesting back pay for any overtime (OT) worked from his hire date of December 6, 2020 through April 04, 2022 (i.e., claim period), while serving as a Safety and Occupational Health Specialist, FV-0018-I, with the Environmental and Occupational Safety and Health (EOSH) Support Center A (Team A), EOSH Operationss Group, Technical Services Organization, Technical Operations, Eastern Service Area, Federal Aviation Administration, U.S. Department of Transportation, Melville, New York. We received the agency administrative report (AAR) on June 17, 2022, and accepted and decided this claim under section 4(f) of the FLSA of 1938, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).

Background and general issues

The agency asserts the claimant is not eligible for FLSA overtime pay because the duties described in his standard position document/job analysis tool (JAT) #AHFS60I, meet the administrative exemption criteria of the FLSA (5 CFR 551.206). Like the administrative exemption, the agency states that the primary duty of his position is performance of non-manual work directly related to the business operations of the employer/employer’s customers and that this duty includes the exercise of discretion and independent judgement with respect to matters of significance. The agency also cites the occupational series and grade level of the claimant’s position as additional support for its decision to exempt the claimant’s position from FLSA coverage. In its Rationale Report for OPM, the agency writes:

The 0018 series is in the Professional Job Category, Career Level 4 results in the I Band level assignment, represents a senior level specialist and is equivalent to a non-supervisory GS-13 in the General Schedule.

The claimant disagrees with the agency’s determination, asserting that, during the claim period, the actual work of his position did not require him to exercise discretion and independent judgement with respect to matters of significance; perform advisory or management functions; or perform many of the complex operational duties and responsibilities described in his JAT. Therefore, he believes his position should be designated as FLSA nonexempt and he should be awarded back pay for hours of overtime worked during the claim period.

OPM FLSA determinations are made solely by comparing duties, responsibilities, and authorities actually assigned to and performed by the claimant during the claim period to FLSA regulations and guidelines. Since comparison of actual duties, responsibilities, and authorities to FLSA regulations and guidelines is the exclusive method for making exemption decisions, we cannot rely solely on the agency-established series and grade of an official JAT or written descriptions of duties, responsibilities, and authorities contained within said JAT, which may not be fully accurate, as a basis for deciding a claim.

In reaching our FLSA decision, we have carefully reviewed all documents and information provided by the claimant and his agency, as well as information gained through separate interviews and e-mail communications with the claimant, his current and former supervisors, and staff of his servicing Human Resources (HR) office.

Position information

Both the claimant and the supervisor identified duties and responsibilities in the claimant’s JAT (#AHFS60I) which were incorrect, overstated, or not performed by the claimant during the claim period. For example, the “Introduction” states the claimant serves as the Occupational Safety and Health (OSH) Program Manager. However, the claimant was not assigned OSH program management responsibilities. Instead, individual FAA OSH programs (e.g., confined space, fall management, fire safety, asbestos, and compliance) are managed by specific program managers at FAA headquarters.

In the “Duties and Responsibilities” section of the JAT it states the claimant analyzes jobs, processes, products, or other systems to determine the risks to employees; conducts safety evaluations of hazardous conditions and develops/recommends cost effective controls or abatement measures. However, although the claimant’s position required him to perform as-needed on-site corona virus disease 2019 (COVID-19) and safety inspections during the claim period and produce standardized reports of findings, he did not analyze jobs, processes, products, and other systems for the purpose of determining the risks to employees, nor did he conduct safety evaluations of hazardous conditions. Instead, the claimant performs on-site inspections and reported inconsistencies with established safety and environmental guidelines to the site supervisor and other appropriate management personnel. Responsibility for analyzing jobs, processes, products, and other systems for the purpose of determining the risks to employees and conducting safety evaluations of hazardous conditions rested with Team C personnel (e.g., Industrial Hygienists (IH), Safety Engineers (SE), EOSH program managers) or higher-level FAA personnel.

The JAT states the claimant is responsible for preparing and reviewing contractual documents and developing and recommending improvements to systems and/or processes to improve operational efficiency; reviewing project plans and specifications for facilities and equipment to ensure compliance with established EOSH standards; and for developing scopes of work for contract resources required to implement specific aspects of EOSH program operations with overall authority and responsibility compliance with Federal, State, and local EOSH regulations. However, the claimant is neither assigned nor does he perform these tasks. Instead, responsibility for all aspects of development and oversight of FAA’s federal contracts rests with the agency’s Contract Officer (CO).

The JAT states the claimant applies experience and comprehensive knowledge applicable to [his] discipline to plan and conduct functional activities for projects and/or programs. However, the claimant was not responsible for planning or conducting functional activities for projects or programs. These responsibilities rest with his supervisor, Team A project managers, or higher-level agency managers.  

The JAT states that policies and procedures provide guidance for most assignments but allow considerable discretion for employees to select the most appropriate approach(es) or develop new approaches. However, the claimant does not develop new approaches to EOSH programs or processes. Instead, he strictly adheres to established guidelines and only deviates from these after receiving permission or instruction to do so from his supervisor or higher-level agency officials.

Our fact-finding disclosed that the claimant is not currently assigned responsibility for developing or recommending approaches to address current and/or anticipated problems and issues associated with his primary duties, e.g., performing narrowly specified inspections at FAA facilities, recording observations of non-compliance, and developing and distributing reports and findings. Instead, responsibility for developing and recommending approaches to address current and anticipated EOSH problems and issues rests with his supervisor, Team A professionals (e.g., Program managers, IH’s, and SE’s) or higher-level agency management.

The JAT states the work typically impacts directly on the objectives of one or more organizational units, major subdivisions, and/or LOBs/SAs and may affect the objectives of the FAA. However, the claimant’s work does not typically have a direct impact on the objectives of other organizational units, major subdivisions, and/or LOBs/SAs and does not directly affect the objectives of the FAA as implied in the JAT. Instead, his work typically impacts the operational programs and processes performed by Team A and/or the EOSH.

The JAT states the work is typically reviewed through status reports and at project completion to ensure policy compliance and alignment with the requirements of projects and/or other work activities. However, the claimant is not currently assigned projects. Instead, he performs standard site inspections and submits reports to his supervisor who reviews them to ensure accuracy of his technical processes and compliance with established guidelines and policies.

The JAT states contacts are internal and external, and that the claimant may be called upon to communicate FAA positions on policies and procedures internally and externally. However, although the claimant may be asked to provide clarification of applicable EOSH guidelines, procedures, and timelines to site managers and peers, he is not responsible for communicating FAA’s positions on policies and procedures. Instead, this responsibility rests with his supervisor or higher-level agency management.

The JAT states the claimant must possess knowledge of EOSH program implementation; experience in developing comprehensive compliance programs; and the ability to independently manage multidisciplinary safety and environmental programs, including fall protection, electrical safety, indoor air quality, asbestos control, and environmental impact studies. To do so the claimant must possess sufficient knowledge of applicable FAA’s EOSH programs and guidelines to perform his daily tasks and may be called upon to provide technical training on EOSH topics such as those listed above. However, our fact-finding disclosed that while this knowledge is helpful in carrying out his inspection duties in these areas, he is not assigned programmatic responsibility for them which is beyond the scope of his position. Instead, responsibility for the program management of these technical fields rests withindividual Team A program managers or higher-level officials within FAA.

At the time of this claim the claimant served as a Safety and Occupational Health (SOH) Specialist under the EOSH Team A supervisor, who had full authority to assign and direct the work of the claimant, including assigning priorities, timelines, and methods and reviewing and accepting, rejecting, or modifying reports or decisions made by the claimant.

The claimant applied a working knowledge of established EOSH guidelines, principles, methods, and techniques to provide technical support to various EOSH projects and programs, such as confined space, fall management, fire safety, asbestos, and COVID-19 response programs.

He coordinated with fellow Team A EOSH specialists, the Team A supervisor, Team C personnel (e.g., Safety Engineers, IH, and program managers), and EOSH management to identify common EOSH-related issues and to obtain guidance to address these issues.

He coordinated with site managers to schedule and perform cyclical and emergency inspections of predetermined processes and points of interest (e.g., placement of fire suppression equipment, obstruction of passageways, and obvious safety and health issues) at FAA field locations and facilities.

He identified violations of established safety and occupational health policies and standards; recommended abatement of violations and work stoppage in situations where obvious violations of policy and/or immediate danger to personnel, equipment, or property existed; and reported his findings to the site manager and the Team A supervisor.

He strictly adhered to the full range of established safety and occupational health policies and standards; used discretion to select and apply the most appropriate standard for each situation encountered; sought guidance and direction from his supervisor or higher-level agency personnel for situations or issues which lacked clear guidance or precedent; and explained EOSH guidelines and processes to a variety of agency and non-agency personnel as needed.

He provided EOSH-related technical support to the Contract Officer (CO), including developing statements of work; reviewing contract plans and specifications for obvious noncompliance with established OSH guidelines; and reporting findings and observations to the CO for further action.

During COVID-19 responses the claimant ensured the site had been evacuated; performed a walkthrough to identify all spaces where the infected individual had traveled; and met with abatement contract personnel outside the facility to confirm they had donned the appropriate personal protective equipment (PPE). He escorted them to the site; observed that appropriate decontamination chemicals, methods, and techniques were used; verifed the quality and completeness of work performed; escorted contract personnel off site; informed the site manager of the completion of the abatement; and developed and submitted a report to appropriate agency personnel.

Work performed by the claimant typically impacted Team A and closely related EOSH processes and programs supported by his team.

Evaluation

Period of the claim

As provided for in 5 CFR 551.702(b), all FLSA pay claims filed on or after June 30, 1994, are subject to a two-year statute of limitations, except in cases of willful violation where the statute of limitations is three years. A claimant or a claimant’s designated representative must submit a written claim to either the agency employing the claimant during the claim period or to OPM in order to preserve the claim period. The date the agency or OPM receives the claim is the date which determines the period of possible back pay entitlement (5 CFR 551.702(c)). The claimant makes no assertion of willful violation. OPM received the claim on April 4, 2022. Therefore, the claim is preserved effective April 4, 2022. Based on 5 CFR 551.702(b), the claim period would commence April 4, 2020. However, the claimant entered on duty in his current position on December 6, 2020. Therefore, for purposes of determining entitlement to backpay the claim period for his claim is established from December 6, 2020, through April 4, 2022.

Applicability of the FLSA

Sections 551.201 and 551.202 of title 5 CFR require an employing agency to designate an employee FLSA exempt only when the agency correctly determines that the employee meets one or more of the exemption criteria. In all exemption determinations, the agency must observe the following principles: (a) each employee is presumed to be FLSA nonexempt, unless the employing agency correctly determines that the employee clearly meets the requirements of one or more of the exemptions; (b) exemption criteria must be narrowly construed to apply only to those employees who are clearly within the terms and spirit of the exemption; (c) the burden of proof rests with the agency that asserts the exemption; (d) an employee who clearly meets the criteria for exemption must be designated FLSA exempt. If there is a reasonable doubt as to whether an employee meets the criteria for exemption, the employee should be designated FLSA nonexempt; and (e) while established position descriptions and titles may assist in making initial FLSA exemption determinations, the designation of a position’s FLSA status ultimately rests on the duties actually performed by the employee. Our evaluation of the claimant’s duties as they relate to FLSA exemption criteria follows.

There are three primary exemption categories applied to Federal employees: executive, administrative, and professional. Neither the claimant nor the agency asserts the claimant’s work meets the executive or professional exemption and based on careful review of the record, we agree. Therefore, our analysis is limited to the administrative exemption criteria in effect during the time of the claim.

Administrative exemption criteria

The provisions of 5 CFR 551.206, administrative exemption criteria, in relevant part, are as follows:

An administrative employee is an employee whose primary duty is the performance of office or non-manual work directly related to the management or general business operations, as distinguished from production functions, of the employer or the employer’s customers and whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

(a) In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. The term “matters of significance” refers to the level of importance or consequence of the work performed.

(b) The phrase discretion and independent judgment must be applied in light of all the facts involved in the particular employment situation in which the question arises. Factors to consider when determining whether an employee exercises discretion and independent judgment with respect to matters of significance include, but are not limited to, whether the employee:

(1) Has authority to formulate, affect, interpret, or implement management policies or operating practices;

(2) Carries out major assignments in conducting the operation of the organization;

(3) Performs work that affects the organization’s operations to a substantial degree, even if the employee’s assignments are related to operation of a particular segment of the organization;

(4) Has the authority to commit the employer in matters that have significant financial impact;

(5) Has authority to waive or deviate from established policies and procedures without prior approval;

(6) Has authority to negotiate and bind the organization on significant matters;

(7) Provides consultation or expert advice to management;

(8) Is involved in planning long-or short-term organizational objectives;

(9) Investigates and resolves matters of significance on behalf of management; and

(10) Represents the organization in handling complaints, arbitrating disputes, or resolving grievances.

(c) The exercise of discretion and independent judgment implies the employee has authority to make an independent choice, free from immediate direction or supervision. However, an employee can exercise discretion and independent judgment even if the employee’s decisions or recommendations are reviewed at a higher level. Thus, the term discretion and independent judgment does not require that decisions made by an employee have a finality that goes with unlimited authority and a complete absence of review. The decisions made as a result of the exercise of discretion and independent judgment may consist of recommendations for action rather than the actual taking of action. The fact that an employee’s decision may be subject to review and that upon occasion the decisions are revised or reversed after review does not mean that the employee is not exercising discretion and independent judgment.

(d) An organization’s workload may make it necessary to employ a number of employees to perform the same or similar work. The fact that many employees perform identical work or work of the same relative importance does not mean that the work of each such employee does not involve the exercise of discretion and independent judgment with respect to matters of significance.

(e) The exercise of discretion and independent judgment must be more than the use of skill in applying well-established techniques, procedures, or specific standards described in manuals or other sources.

An evaluation of the actual duties, responsibilities, and authorities assigned to and performed by the claimant during the time of the claim indicates that his work does not meet the administrative exemption criteria.

Although the claimant performed non-manual administrative and technical support work, he did not perform a support function of substantial importance to FAA as envisioned in 5 CFR 551.206. Instead, the claimant's primary duties were limited to performing operational tasks (e.g., cyclical onsite inspections) and providing technical and administrative support to EOSH programs and related processes. In contrast to the administrative exemption criteria, his work does not involve the application of discretion and independent judgment to matters of significance with respect to the management or FAA’s general business operations.

Unlike the administrative exemption, the claimant’s EOSH-related duties are not an extension of the FAA’s management process and do not help with or affect the management of significant matters within his agency. Instead, his duties affect the specific functional tasks he performs during day-to-day operations within his team.

Unlike the administrative exemption, the claimant does not exercise discretion and independent judgment with respect to matters of significance as addressed in the ten factors of 5 CFR 551.206(b). He has no authority to formulate, affect, interpret, or implement management policies or operating practices. Such authority rests with his supervisor or higher-level management within FAA. Instead, the claimant performs administrative and technical support tasks directly affecting EOSH’s Team A and supervisors and personnel at FAA facilities.

Rather than major assignments (e.g., extensive projects) he regularly performs routine assignments (e.g., safety inspections) within his organization. He has no authority to commit his employer (i.e., FAA) in matters with significant financial impact or to waive or deviate from established policies, procedures, and well-established protocol without prior approval from his supervisor or higher-level agency management. He lacks the authority to negotiate and bind his organization on significant matters; does not consult with and provide expert advice to his organization’s management; and is not involved in planning long or short-term organizational objectives.

Unlike the administrative exemption, he does not investigate and resolve matters of significance on behalf of his organization’s management, nor is he authorized to represent his organization in handling complaints, arbitrating disputes, or resolving grievances. Instead, these responsibilities rest with his supervisor or higher-level management officials.

Based on the preceding analysis, the claimant’s work does not meet the administrative exemption criteria.

Decision on FLSA Coverage

The claimant’s work does not meet the executive, administrative, or professional exemption criteria, as discussed above. Therefore, his position is properly designated as FLSA nonexempt and covered by the overtime pay provisions of the FLSA. He is entitled to compensation at the FLSA overtime pay rate for all overtime hours worked during the claim period. Since the claim was received by OPM on April 4, 2022, the claimant would be eligible to receive back pay for two years prior to that date (i.e., April 4, 2020, and for any overtime worked to the present. However, since the claimant entered on duty on December 6, 2020, he is eligible to receive back pay beginning on the date he entered on duty.The agency must reconstruct the claimant’s pay records for the period of the claim, including considering all travel related to training and/or inspections and hours of work, and compute back pay for FLSA overtime pay owed and any interest on the back pay, as required under 5 CFR 550.805 and 550.806, respectively. While our decision specifically establishes the claim period for purposes of preserving the claim, by implication it also applies to the period going forward if the major duties and responsibilities evaluated in this decision essentially remain the same. If the claimant believes the agency incorrectly computed the amount owed, he may file a new FLSA claim with this office.

[1]Claimant is in a bargaining unit represented by the Professional Aviation Safety Specialists (PASS).  However, at all times relevant to this claim, the applicable collective bargaining agreement has excluded grievances that concern a determination as to whether an employee’s position is exempt or nonexempt under the FLSA.

Back to Top