Washington, D.C

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

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


05/01/2024

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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 compute the claimant’s overtime pay in accordance with the instructions in this decision, then pay the claimant any amount owed. If the claimant believes the agency has incorrectly computed the amount owed, the claimant may file a new FLSA claim with this 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 who is challenging the exemption status of her position and requesting back pay for twenty hours of FLSA overtime (OT) worked between March 2020 and February 2022 while serving as a Safety and Occupational Health (SOH) Specialist, FV-0018-I, with the Environmental and Occupational Safety and Health (EOSH), EOSH Support Operations Group, Technical Services Organization, Technical Operations, Western Service Area (WSA), Federal Aviation Administration, U.S. Department of Transportation, Des Moines, Washington. The claimant challenges the FLSA exemption status of her position. The agency determined her position is exempt (i.e, not covered) from the overtime pay provisions of the FLSA, but the claimant believes it should be designated as nonexempt (i.e., covered) under the FLSA. We have accepted and decided this claim under section 4(f) of the FLSA of 1938, as amended, and 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 her standard position document/job analysis tool (AHFS60I) meet the administrative exemption criteria of the FLSA (5 CFR 551.206). The agency states that the primary duty of her 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 the overtime provisions of the FLSA. 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 both prior to and during the period of the claim associated with the agency’s COVID-19 response, her actual work did not require her 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 her JAT. Therefore, she believes her position should be designated as FLSA nonexempt and she be awarded back pay for twenty 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 is the exclusive method for making exemption status determinations, we cannot rely solely on the agency-established series and grade of the position, or the official duties, responsibilities, and authorities described in a JAT or position description,  which may not be fully accurate, as a basis for deciding an FLSA claim.

In reaching our FLSA decision, we have carefully reviewed all documents and information provided by the claimant, the representatives, and the agency as well as information gained through separate interviews and email communications with the claimant, her former supervisor, and staff of her servicing Human Resources (HR) office.

Position information

Both the claimant and the former supervisor state that many of the duties and responsibilities described in the claimant’s JAT (#AHFS60I) are incorrect and overstated and were not performed by her either prior to or after the agency’s September 2020 implementation of COVID-19 safety measures. For example, in the “Introduction” of the JAT provided by the agency it states the claimant serves as the Occupational Safety and Health (OSH) Program Manager. However, the claimant is 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 risk to employees. However, the claimant is not responsible for analyzing jobs, processes, products, or other systems to determine the risk to employees. Responsibility for analyzing jobs, processes, products, or other systems to determine the risk to employees, rests with Team C project managers or with higher-level agency program managers.

The JAT states the claimant recommends modifications to workplaces to control or eliminate hazards. However, although she offered informal recommendations to site supervisors for simple issues (e.g., proper placement of fire extinguishers and removal of boxes from walkways), she was not responsible for recommending modifications to workplaces to control or eliminate hazards.

The JAT states the claimant reviews project plans and specifications for facilities and equipment to ensure compliance with established EOSH standards. However, the claimant is not assigned this responsibility. Instead, the claimant is responsible for coordinating with other Team B SOH Specialists to schedule and/or perform cyclical and noncyclical site inspections to identify physical violations of EOSH guidelines (e.g., inappropriate placement of fire suppression devices, obstructed egresses and/or walkways, and inoperative and/or malfunctioning equipment) and to produce and distribute standardized electronic reports (i.e., Work Inspection Tool (WIT)) detailing violations of established EOSH guidelines. Responsibility for reviewing project plans and specifications for facilities and equipment to ensure compliance with established EOSH standards rests with the supervisor, Team C program managers, or higher-level agency officials, who review the information provided in the WIT reports generated by the claimant to identify violations of EOSH guidelines and to develop strategies to encourage compliance by site supervisors.

The JAT states the claimant conducts safety evaluations of hazardous conditions and develops recommendations for abatement. However, although the claimant schedules and performs routine site inspections, the purpose of these site visits is not to conduct safety evaluations of hazardous conditions, but rather to identify and record violations of established EOSH guidelines. Responsibility for conducting safety evaluations of hazardous conditions and developing/recommending cost effective controls or abatement measures rests 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 develops scopes of work for contract resources required to implement specific aspects of EOSH program operations with overall authority and responsibility for compliance with federal, state and local Environmental and Occupational Safety and Health regulations. However, the claimant is neither assigned nor performs these tasks. Instead, responsibility for all aspects of development and oversight of FAA’s Federal contracts rests with the Contracting Officer (CO).

The JAT states the claimant applies experience and comprehensive knowledge applicable to [her] discipline to plan and conduct functional activities for projects and/or programs and may lead small project/program teams. However, although the claimant’s supervisor indicated she may perform some of these tasks in the future, during the claim period, she was neither a project manager, nor was she responsible for planning or conducting functional activities for projects or programs. Instead, these responsibilities rested with her supervisor, Team C project managers, higher-level agency managers, or more seasoned Team B members.

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, she strictly adheres to established guidelines and only deviates from these after receiving permission or instruction to do so from her supervisor or higher-level agency officials. Furthermore, although the claimant may be tasked with developing and recommending approaches to address current and anticipated problems and issues in the future, during the claim period she was not assigned this responsibility. Instead, responsibility for developing and recommending approaches to address current and anticipated EOSH problems and issues rested with her supervisor, Team C professionals (e.g., Program managers, IH’s, and SE’s) or higher-level agency management.

The JAT states the claimant’s work activities typically impacts directly on the objectives of one or more organizational units, major subdivisions, and/or Line of Business Staff Office (LOB)/(SA) 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 to the degree implied in the JAT. Instead, her work typically impacts the operational programs and processes performed by Team B 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’s supervisor states that, although the claimant may participate in projects in the future, she did not participate in projects during the claim period. Thus, her work was not 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 during the claim period.

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, Federal contractors, and peers, she is not responsible for communicating FAA’s positions on policies and procedures. Instead, this responsibility rests with her supervisor or higher-level agency management.

The JAT states the claimant must possess knowledge of OSH program implementation; experience in developing comprehensive compliance programs; ability to evaluate occupational safety and environmental hazards and recommend cost-effective controls or abatement measures; 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. However, although the claimant must possess sufficient knowledge of applicable FAA EOSH programs and guidelines to perform her daily tasks and may be called upon to provide technical training on EOSH topics such as fall protection, electrical safety, indoor air quality, and asbestos control, she is not assigned responsibility for managing multidisciplinary safety and environmental programs or for developing comprehensive compliance programs; evaluating occupational safety and environmental hazards and recommending cost-effective controls or abatement measures; nor is she responsible for independently managing multidisciplinary safety and environmental programs, including fall protection, electrical safety, indoor air quality, asbestos control or for performing environmental impact studies. Instead, these responsibilities rest with individual Team C program managers or higher-level officials within FAA.

OPM acknowledges that COVID-19 safety measures implemented by the agency on or about September 2020, affected the claimant’s travel and onsite inspection-related activities to varying degrees during the claim period. However, in the claimant’s case, OPM found that the work performed by the claimant after the agency’s implementation of its COVID-19 measures was simply an extension of her normal OSH duties and responsibilities and required the same knowledge, abilities, and authorities as work performed by her prior to the implementation of COVID-19 safety measures.

During the claim period, the claimant served as a SOH Specialist under the EOSH Team B 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 provided EOSH-related technical support to the CO including reviewing contract plans and specifications for noncompliance with established OSH guidelines and reporting findings and observations to the CO for further action.

She 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 her 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.

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

She scheduled and performed site inspections to determine if EOSH guidelines were being met; identified violations; and developed and submitted WIT reports to the Team C supervisor, the site manager, and appropriate Team C program and project managers.

During COVID-19 responses, the claimant would ensure the infected site had been evacuated; perform a walkthrough to identify all spaces where the infected individual had traveled; meet the abatement contract personnel outside the facility and confirm that they had donned the appropriate personal protective equipment (PPE); escort them to the site; witness that appropriate decontamination chemicals, methods, and techniques were used; verify the quality and completeness of work performed; escort the contract personnel off site; inform the site manager of the completion of the abatement; and develop and submit reports to appropriate agency personnel.

Work performed by the claimant typically impacted Team B and closely related EOSH processes and programs supported by her 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 was preserved on April 4, 2022, and is subject to a two-year statute of limitations commencing on April 4, 2020. Consequently, the period prior to that date is time barred.

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.

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 met the executive or professional exemption and based on a careful review of the record, we agree. Therefore, our analysis below is limited to the administrative exemption criteria in effect during the claim period.

Administrative exemption criteria

The current regulations under 5 CFR 551.206 establish the administrative exemption criteria, in relevant part, 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 claim period indicates that her work, both prior to and after the agency’s implementation of COVID-19 safety and occupational health measures, fails to meet the administrative exemption criteria.

The claimant performs non-manual administrative and technical support work. However, she does not perform a support function of substantial importance to FAA as envisioned in 5 CFR 551.206. Instead, the claimant's primary duties are limited to performing operational tasks (e.g., liaisoning with groups and individuals to schedule cyclical and noncyclical site visits to FAA facilities to perform inspections and identify, record, and report violations of EOSH guidelines) and providing technical and administrative support to EOSH programs and related processes. In contrast to the administrative exemption criteria, the claimant’s work does not involve the application of discretion and independent judgment to matters of significance with respect to the management of FAA’s general business operations.

Unlike the administrative exemption, the claimant’s EOSH-related duties are not an extension of the FAA’s management processes and do not help with or affect the management of significant matters within her agency. Instead, her duties affect the specific functional tasks of facilities and the day-to-day operations of Team B. Thus, the claimant’s duties are limited to EOSH programs and processes and constitute only one element of the larger spectrum of the line work performed within her organization.

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). She has no authority to formulate, affect, interpret, or implement management policies or operating practices. Such authority rests with her supervisor or higher-level management within FAA. In addition, she does not carry out major assignments in conducting the operations of the EOSH nor does her work affect the organization’s operations to a substantial degree.

Unlike the administrative exemption, the claimant has no authority to commit FAA with regard to matters with significant financial impact or to waive or deviate from established agency policies, procedures, and well-established protocol without prior approval from her supervisor or higher-level agency management. She lacks the authority to negotiate and bind the organization concerning significant matters; does not consult with and provide expert advice to the organization’s management; and is not involved in planning long or short-term organizational objectives.

Also, unlike the administrative exemption, the claimant is not responsible for investigating and resolving matters of significance on behalf of the organization’s management, nor is she authorized to represent any level of the FAA in handling complaints, arbitration of disputes, or resolution of grievances against the organization. Instead, these responsibilities rest with her supervisor or higher-level management within FAA.

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. Therefore, her position is properly designated as FLSA nonexempt (i.e., covered by the overtime pay provisions of the FLSA). She is entitled to compensation at the FLSA overtime pay rate for all overtime hours worked during the claim period. 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. Since the claim was received by OPM on April 4, 2022, the claimant is eligible to receive back pay for two years prior to that date (i.e., April 4, 2020). The period of the claim from March 2020 to April 3, 2022, is time barred. The agency must follow the compliance requirements on page ii of this decision.

The agency must reconstruct the claimant’s pay records for the period of the claim and compute back pay owed, including the difference between the FLSA overtime rate and any overtime pay already paid under the agency’s core compensation pay system, and review for possible overtime pay all travel related to training and/or inspections as hours of work. The agency must also compute any interest on the back pay, as required under 5 CFR 550.805 and 550.806, respectively. If the claimant believes the agency incorrectly computes the amount owed, she may file a new FLSA claim with this office.

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