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


06/14/2024

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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, he 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 his position and requesting back pay for any overtime (OT) worked from September 26, 2021 (when he became a Federal employee) to February 2022 while serving as a Safety and Occupational Health (SOH) Specialist, FV-0018-I, Safety and Environmental Compliance Manager (SECM)), with the Environmental and Occupational Safety and Health (EOSH) Support Center B (Team B), EOSH Support Operations Group, Technical Services Organization, Technical Operations, Eastern Service Area, Federal Aviation Administration (FAA), U.S. Department of Transportation, Atlanta, Georgia. The claimant challenges the FLSA exemption status of his position. The agency determined the 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. The claimant requests back pay for fifty hours of FLSA overtime worked between the date of his appointment to Federal service to February 2022. 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 his standard position document/job analysis tool (JAT) #AHFS60I, meet the administrative exemption criteria of the FLSA (5 CFR 551.206). 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 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, 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 fifty hours of overtime worked during the claim period.

OPM FLSA exemption status 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. Since comparison 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 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, 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 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 provided by the agency it states the claimant analyzes jobs, processes, products, or other systems to determine the risks to employees; and conducts occupational safety evaluations of hazardous conditions and develops recommendations for abatement. However, 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 does not rest with the claimant. Instead, these responsibilities rest 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. It states he is responsible for preparing and reviewing management reports and/or contractual documents and developing and recommending improvements to systems and/or processes to improve operational efficiency. However, although the claimant reviews contract-related project plans to ensure compliance with established EOSH standards; develops draft SOH-related aspects of scopes of work for consideration and approval by the Contracting Officer (CO); and provides technical information to the site manager regarding SOH aspects of new or ongoing Federal contracts, he is not responsible for preparing and reviewing contractual documents; reviewing specifications for facilities and equipment; or developing and recommending improvements to systems and/or processes to improve operational efficiency. These responsibilities rest solely with the 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, although the claimant may perform some of these tasks in the future, during the claim period he did not. Instead, these responsibilities rest with his 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, 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.

The JAT states the claimant develops and recommends approaches to address current and anticipated problems and issues. However, although the claimant’s supervisor states he may perform these tasks in the future, during the claim period he was not assigned this responsibility. Instead, this rests with his supervisor, Team C 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 this effect on those organizations described in the JAT. Instead, his work typically impacts the operational programs and processes performed by Team B and/or other EOSH personnel.

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, although the claimant submits regular status reports as described in the JAT, the claimant’s supervisor states that the claimant did not participate in projects during the claim period but may do so in the future.

The JAT states contacts are internal and external, and 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, 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 occupational safety and health program implementation and 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. However, although the claimant must possess sufficient knowledge of applicable FAA EOSH programs and guidelines to perform his 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, he is not assigned responsibility for managing multidisciplinary safety and environmental programs or for performing environmental studies. Instead, that responsibility rests with individual Team C program managers or higher-level officials within the FAA.

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 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. 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.

As a subject matter expert in SOH, the claimant clarified current FAA policies concerning EOSH policies for various agency and non-agency personnel (e.g., site managers and Federal contractors) on an as needed basis.

He reviewed SOH aspects of contracts for the CO to ensure compliance with established EOSH standards; drafted scopes of work for SOH-related tasks for CO consideration; and provided technical information to the site manager regarding SOH aspects of new or ongoing Federal contracts.

He recommended abatement of specific EOSH violations identified during routine inspections (e.g., presence of asbestos and fire extinguishers at an unacceptable height on walls); monitored the progress of the abatement process by Federal contract personnel and/or site supervisors; and developed and submitted reports to his supervisor.

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

He performed site inspections to determine if facilities met EOSH guidelines and to identify potential new issues. He identified violations of established EOSH guideline within Work Inspection Tool (WIT) reports submitted through Team B inspections. He also 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 coordinated with the site manager, Federal contractors, Team C, and the Team B supervisor to facilitate abatement of violations.

He provided EOSH-related technical support to the CO including reviewing contract plans and specifications for obvious noncompliance with established OSH guidelines, and reporting findings and observations to the CO for further action.

Work performed by the claimant typically impacted Team B 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. The record shows the claim was received by OPM on April 4, 2022, and therefore it is subject to a two-year statute of limitations commencing on April 4, 2020. However, because the claimant was appointed a Federal employee to his current position on September 26, 2021, his possible entitlement to FLSA overtime commences from that date to 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.

There are three exemption categories applied to Federal employees: executive (5 CFR 551.205), administrative (5 CFR 551.206), and professional (including learned professional) (5 CFR 551.207 and 208). 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. However, the agency believes the claimant’s position meets the administrative exemption criteria of the FLSA, but the claimant disagrees. Therefore, our analysis below is limited to the administrative exemption criteria in 5 CFR 551.206.

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 escribed in manuals or other sources.

The claimant’s position does not meet the administrative exemption criteria in 5 CFR 551.206. Although the claimant’s duties involve the performance of office or non-manual work, he did not perform a support function of substantial importance to the FAA as envisioned in 5 CFR 551.206. Instead, the claimant's primary duties were limited to performing operational tasks (e.g., liaisoning with groups and individuals to facilitate abatement of violations of EOSH guidelines) involving skill in applying well-established techniques, procedures, and specific occupational safety and health standards described in relevant manuals and regulations 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 organizations management or FAA’s general business operations.

Unlike the administrative exemption, the claimant’s EOSH-related duties arenot 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 of facilities and the functional tasks he performs during day-to-day operations within his team. 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 his 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). 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. In addition, he does not carry out major assignments in conducting the operations of the EOSH nor does his work affect the organization’s operations to a substantial degree.

Unlike the administrative exemption, the claimant has no authority to commit the FAA in matters having significant financial impact, or to waive or deviate from established agency 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 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, he does not investigate and resolve matters of significance on behalf of the organization’s management, nor is he authorized to represent the EOSH in handling complaints, arbitrating disputes, or resolving grievances against the organization. Instead, these responsibilities rest with his 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, his position is properly designated as FLSA nonexempt, i.e., 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. 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 would normally be eligible to receive back pay for two years pror to that date (i.e., April 4, 2020) However, because the claimant did not become a Federal employee until September 26, 2021, he is eligible for FLSA overtime back pay from that date to April 4, 2022. 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 also 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, he may file a new FLSA claim with this office.

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