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


08/28/2024

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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 her, she 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 approximately four hundred hours of overtime (OT) worked while serving as a Safety and Occupational Health (SOH) Specialist, FV-0018-I, with the Environmental and Occupational Safety and Health (EOSH) Support Center A (Team A, EOSH Support Operations Group, Technical Services Organization, Technical Operations, Eastern Service Area, Federal Aviation Administration (FAA), U.S. Department of Transportation (DoT), Melville, New York, with the claimant’s duty station in Leesburg, Virginia The claimant challenges the FLSA exemption status of her position. The agency determined the claimant’s 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 approximately four-hundred hours of FLSA overtime worked between March 2020 and 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.).

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 (JAT) #ZDCW3CI, 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 pay 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 her position 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 should be awarded back pay for approximately four-hundred hours of overtime worked during the claim period.

OPM FLSA exemption status determinations are made solely by comparing actual duties, responsibilities, and authorities assigned to and performed by the claimant during the claim period to FLSA regulations. Since this 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, her former supervisors, and staff of her servicing Human Resources (HR) office.

Position information

Both the claimant and her former supervisor identified duties and responsibilities in the claimant’s JAT (#ZDCW3CI) which were incorrect, overstated, or not performed by the claimant during the claim period. For example, the “Duties and responsibilities” section of the JAT states the claimant serves as an EOSH technical program manager for the air traffic organization (ATO) district office with overall authority and responsibility for compliance with Federal, state, and local EOSH regs; serves as the EOSH expert for the district’s ATO EOSH operational program; identifies and prioritizes program initiatives based upon resource availability; coordinates with District managers on prioritization and implementation strategies for key program elements; monitors and evaluates EOSH programs and develops recommendations for improving compliance; prepares reports and/or briefs on EOSH program status and accomplishments; and acquires resources to administer the programs. However, the claimant is not assigned program management responsibility for ATO, EOSH or any component of FAA, nor is she assigned authority or responsibility for ensuring compliance with Federal, state, or local EOSH regulations, nor is she responsible for acquiring resources to administer the programs. Furthermore, her position does not serve as the EOSH expert for the district’s ATO EOSH operational Program. Instead, these responsibilities rest with her supervisor, the Team C specialists responsible for managing specific EOSH programs (e.g., asbestos, confined space, fall management, and fire safety), or higher-level agency officials.

The JAT states the claimant’s position coordinates and manages field EOSH technical program elements focusing on fuel storage tanks. However, the claimant is not assigned this responsibility. Instead, this responsibility rests with the appropriate Team C specialist.

The JAT states the claimant analyzes jobs, processes, products, or other systems to determine the risks to employees. However, the claimant is not assigned these responsibilities. Instead, responsibility for analyzing jobs, processes, products, or other systems to determine risks to employees rests with Team C, or higher-level agency officials.

The JAT states the claimant reviews project plans and specifications for facilities and equipment to ensure compliance with established EOSH standards. However, although these types of tasks are within the scope of normal work for the claimant’s position, she was not assigned these tasks during the claim period.

The JAT states the claimant conducts occupational safety evaluations of hazardous conditions and develops recommendations for abatement. However, these responsibilities do not rest with the claimant. Instead, these responsibilities rest with Team C specialists or higher-level agency officials.

The “Knowledge, Skills, and Abilities” section indicates the position develops comprehensive compliance programs; evaluates occupational safety and environmental hazards; recommends cost effective controles or abatement measures; and independently manages multidisciplinary safety and environmental programs, including Fall protection, electrical safety, indoor air quality, asbestos contrls, and environmental impact studies. However, our review found that the claimant is not responsible for performing these tasks. Instead, responsibility for performing these tasks rests with Team C specialists or higher-level agency officials.

At the time of the claim, the claimant served as a 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 for 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.

She coordinated with fellow Team A EOSH specialists, the Team A supervisor, Team C personnel (e.g., safety engineers, industrial hygienists, and program managers), and EOSH management to identify common EOSH-related issues and to obtain guidance to address these issues.

She 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.

She identified violations of established ESOH policies and standards; developed and submitted Work Inspection Tool (WIT) reports, which she shared with all appropriate agency personnel (e.g., site manager, the Team B supervisor, and Team C personnel); 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.

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 provided EOSH-related technical support to the Contract Officer (CO), including developing statements of work; reviewed 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 would ensure the site had been evacuated; perform a walk-through 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 a report 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. 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, the claimant’s representative seeks FLSA overtime pay commencing in March 2020. Because that date exceeds the two-year statute of limitations it is time barred. Therefore, we find the claim was preserved effective April 4, 2022, when OPM received the claim, and the claim period commences on April 4, 2020.

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 a 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:

(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.

The claimant’s work 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, she 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., arranging and performing cyclical and non-cyclical onsite inspections and developing and distributing follow up reports) 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, her 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 her agency. Instead, her duties affect the functional tasks and day-to-day operations of Team B and specific SOH-related functional tasks of inspected facilities. 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 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 her supervisor or higher-level agency management. Unlike the administrative exemption, she lacks the authority to negotiate and bind the organization concerning significant matters; does not consult with or 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, she does not investigate and resolve matters of significance on behalf of the organization’s management, nor is she authorized to represent any level of the EOSH in handling complaints, arbitrating disputes, or resolving grievances against the organization. Instead, these responsibilities rest with her supervisor or higher-level management within the 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 month of March 2020 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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