Washington, DC

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


02/26/2024

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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 her. If the claimant believes that 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 (SF) 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 June 30, 2022, OPM’s Merit System Accountability and Compliance received an FLSA claim from the claimant’s designated representatives. The claimant is an Environmental Protection Specialist, FV-0028-I, with organizational title of Safety and Environmental Compliance Manager (SECM), assigned to the Environmental Occupational Safety and Health (EOSH) Support Center, EOSH Support Operations Group (ESOG), Technical Services, Technical Operations, Federal Aviation Administration (FAA), U.S. Department of Transportation, in Fort Worth, Texas, with duty station in Brook Park, Ohio. She believes her FLSA exemption status should be nonexempt (i.e., covered) by the overtime pay provisions of the FLSA, and thus due FLSA overtime pay for overtime worked during the period of August 29, 2021, to present. We received the agency administrative report (AAR) on July 17, 2022. We have accepted and decided this claim under section 4(f) of the FLSA as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).

Background and General Issues

The claimant disagrees with the FLSA exemption status determination made by the agency. She believes the duties associated with her position do not justify the position being exempt from the overtime pay provisions of the FLSA. The claimant was appointed to her position and assigned to Position Document/Job Analysis Tool (JAT) number AHFS90I effective August 29, 2021. She states she worked approximately 50 hours of overtime since she was hired in August 2021, primarily performing additional duties due to the advent of the COVID-19 pandemic, and requests to be compensated for the overtime worked at the FLSA overtime pay rate. Included in the record, is an FAA FLSA Exemption Worksheet, dated July 28, 2020, showing her position is designated as FLSA exempt (i.e., not covered) by the overtime pay provisions of the FLSA based on meeting the administrative exemption criteria established in 5 CFR 551.206. In adjudicating this claim, our primary concern is to make an independent decision about the exemption status of the claimant’s position. We must make that decision by comparing the actual duties performed by the claimant against the FLSA exemption criteria and guidelines.

Position Information

Our review disclosed that the claimant’s JAT of record is not completely accurate because it describes duties she does not perform. For instance, the JAT states the work of the position involves the “development and interpretation of agency policy, federal and state regulations, and industry standards applicable to the resolution of the Districts involvement in environmental and workplace safety issues that have future implications and obligate FAA to fiscal commitments.” However, the claimant applies well-established agency policies and other federal and state regulations and seeks guidance on the interpretation of policies and other regulations as necessary, but she is not involved in the actual development and interpretation of agency level policies and other regulations. Rather, the claimant’s responsibilities include developing standard operating procedures (SOPs) (e.g., tower climbing procedures) and assisting in developing other plans (e.g., rescue plans) based on well-established EOSH program policies, and interprets federal, state, and local regulations applicable to the work assigned. The JAT also states the position “Defines, plans, and organizes assigned resources to accomplish organizational objectives.” However, although the claimant can recommend and request resources (e.g., materials, equipment, documents) needed at her level to carry out work projects, she is not responsible for defining, planning, and organizing resources to accomplish organizational objectives (e.g., at EOSH Center or ESOG level). This responsibility belongs to positions at higher levels of the organization.

Furthermore, although the claimant may recommend safety and environmental protection techniques to address problem situations, she does not develop those techniques as stated in the JAT. Rather, she applies Environmental Protection Act (EPA) standards, Occupational Safety and Health Act (OSHA) standards, and well-established EOSH techniques and practices applicable to the technical problems or situations encountered. The claimant does not have external contact with “aviation and aerospace industries” as stated in the JAT. Her regular and recurring contacts are primarily with System Support Center (SSC) managers, project initiators, and District level personnel.

ESOG’s mission is to achieve the safest occupational health workplace for all Air Traffic Organization employees, and to strive to enhance and improve environmental compliance at all facilities through innovation, collaboration, communication, employee empowerment, workforce development and incident response. The EOSH Support Center provides technical support to facilities in specified districts within its service areas to maintain compliance with EOSH program policies. EOSH programs include but are not limited to the Indoor Air Quality, Confined Space Entry, Fall Protection, Electrical Safety, Radiation Safety, Hazardous Energy Control (Lockout/Tagout), and Personnel Protective Equipment (PPE), Fire and Life Safety (emergency procedures, fire extinguishers, egress), hazardous waste/hazardous materials, under and above ground tanks, and spill prevention control and countermeasures.

The claimant is assigned to the EOSH Support Center (Team B). She provides technical expertise on EOSH programs serving as the SECM for the Cleveland District of the ESOG’s Central Service Area (CSA). As such, she ensures that all FAA facilities within her district carrying out projects involving a renovation, altering of an area (e.g., installation of fixed latter system to rooftop of a building), or construction meet safety and environmental compliance. She approves Work Review Requests (WRRs) for projects to identify potential asbestos, lead, and hazardous materials and approves the requests if all requirements are met. She uses EOSH Checklists provided to her by SSC managers, project initiators, or Engineering Services personnel to identify and assess any potential safety and environmental hazards before the project begins. Throughout the project, she assesses unexpected occupational safety and environmental impacts that may occur during the project and recommends solutions for mitigation (e.g., proper disposal of lead paint coated items).

The claimant conducts various inspections, assessments, sampling, and testing activities including but not limited to asbestos re-inspection of staffed and unstaffed facilities, comprehensive site checks, fall hazard assessments, radiation hazard surveys, confined space survey, drinking water testing, and visual assessments for mold or potential mold growth such as after a water intrusion event. She collects air and bulk samples to identify asbestos, lead, or hazardous chemicals. She conducts workplace safety inspections as necessary and assists SSC managers with abatement plans. She reviews and follows-up with unsatisfactory conditions reports made by facility employees about potentially unsafe conditions in the workplace. She is responsible for submitting to the Local Emergency Planning Committee an annual Emergency Planning and Community Right-to-Know (EPCRA) report to meet hazardous chemical reporting requirements for qualifying FAA facilities within her district. When performing her work, the claimant applies knowledge of EOSH program policies and procedures, FAA Orders, EPA standards, OSHA standards, Consensus Standards, state and local environmental regulations, and bargaining union agreements. She exercises independence in planning and executing her work. The claimant independently researches issues and may discuss unusual situations or problems with her supervisor and/or Team C program managers. She provides onsite or virtual training to district personnel such as SSC managers and technicians on topics such as but not limited to asbestos awareness, use and selection of PPE, spill response, and hearing conservation.

During the COVID-19 pandemic the claimant performed additional duties in support of an organizational effort to ensure air traffic control capacity remained. Like with her regular and recurring duties, she applied knowledge of EPA standards and occupational health and safety methods and procedures to perform the work. She provided training to and inspected the cleaning and disinfecting performed by janitorial contractor staff who were called to clean affected areas in FAA facilities after confirmed cases of COVID-19 were reported. She ensured the cleaning staff wore proper PPE, used approved chemicals, and followed established cleaning protocols to clean specialized air traffic control equipment. Once the cleanings were completed she reported on all aspects of the janitorial work performed to the appropriate management personnel.

In reaching our FLSA decision, we have carefully reviewed all information provided by the claimant through her representatives and the agency, including information obtained from separate telephone interviews with the claimant and her supervisor, Supervisory Aviation Technical System Specialist, FV-2196-J, with organizational title of CSA EOSH Support Center B Manager.

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 (three years for willful violation). The claimant does not allege the agency committed a willful violation and there is no evidence the agency willfully violated the FLSA, thus we will not address the issue. 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 establishing the period of possible back pay entitlement (5 CFR 551.702(c)). The claimant did not file a claim with the agency before filing with OPM. The claim was received by OPM on June 30, 2022, thus subject to a two-year statute of limitations commencing on June 30, 2020. However, the claimant was appointed to her position on August 29, 2021, therefore, the period of the claim begins on that date and the entire period of the claim is covered.

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) If there is a reasonable doubt as to whether an employee meets the criteria for exemption, the employee will be designated FLSA nonexempt; (e) While established position descriptions and titles may assists 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 main 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). The claimant’s agency asserts her position meets the administrative exemption criteria of the FLSA, but the claimant disagrees. The agency also determined her duties do not meet the executive or professional exemption criteria and the claimant does not contest that determination, and we agree. Therefore, our analysis below is limited to the administrative exemption criteria in 5 CFR 551.206.   

Administrative exemption criteria

The current regulations in 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 decision, 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 work performed by the claimant does not meet the administrative exemption criteria in 5 CFR 551.206. Although the claimant’s primary duty involves the performance of office or non-manual work, it is not directly related to the management and business operations of the organization. Rather, as a SECM, the claimant’s work is focused on ensuring that all facilities within her district carrying out building projects are in compliance with safety and environmental regulations. In addition, she does not exercise discretion and independent judgment with respect to matters of significance as described in the ten factors listed in 5 CFR 551.206(b). For example, she has no authority to formulate, affect, interpret, or implement management policies or operating practices at her level. Work that significantly affects the formulation or execution of policies or practices generally refers to employees who actually make policy, make policy decisions, or develop proposals that are acted on by others. This authority is outside the scope of the claimant’s position. Instead, her duties and responsibilities require that she apply well-established EOSH program policies and procedures and environmental protection standards and guidelines.

The claimant does not carry out major assignments in conducting the operations of the organization. The claimant’s work focuses on carrying out technical environmental compliance functions within an organization that provides other types of technical operations support to its technical facilities. She carries out specific short-term assignments (i.e., reviewing and approving WRRs, conducting inspections, surveys, assessments, and complying with reporting requirements) rather than major ones (e.g., long-term environmental studies or program projects) in conducting the operations of her organization, thus her work does not affect the organization’s operations to a substantial degree. The claimant does not have the authority to commit the employer in matters that have significant financial impact. This authority belongs to higher echelon management officials.

Furthermore, the situations the claimant regularly deals with do not require waiving or deviating from established policies and procedures without prior approval. The claimant also does not perform any work requiring her to have authority to negotiate and bind her organization on significant matters or make significant decisions. Although the claimant has specialized knowledge and experience in the field of environmental protection and compliance, she does not provide consultation and expert advice to FAA management relating to the overall management or the general business operations of her unit. Rather, she provides technical advice to SCC facility managers and/or her District Manager on the technical aspects of safety and environmental compliance.

The claimant is not involved in the planning of long or short-term organizational objectives of her organization. For example, she is not involved in the strategic planning efforts that may serve to establish, achieve, or otherwise impact either the long-or short-term objectives or goals of her organization. She is also not responsible for investigating and resolving matters of significance on behalf of management or representing the organization in handling complaints, arbitrating disputes, or resolving grievances. These matters are within the authority and responsibility of management positions at higher levels of her organization.

Although the claimant performs her work independently, free of immediate supervision and direction, in contrast to the application of discretion and independent judgment, she uses knowledge and skill in applying well-established safety and environmental regulations and standards which are applicable to the work assigned. She does not make significant or far-reaching decisions in the development, interpretation or application of agency level environmental protection policies or critical criteria. Therefore, the decisions she makes are not significant within the meaning of 5 CFR 551.206 in that they affect the procedural details of her environmental safety and compliance work and primarily focus on deciding whether a project conforms to clearly applicable criteria.

Based on the preceding analysis, the work performed by the claimant does not meet the administrative exemption criteria in 5 CFR 551.206.

Decision on FLSA Coverage

The claimant’s work does not meet the executive, professional, or administrative exemption criteria. Therefore, her position is FLSA nonexempt and covered by the overtime pay provisions of the FLSA. She is entitled to compensation for all overtime hours worked at the FLSA overtime pay rate. Since the claim was received by OPM on June 30, 2022, the claimant would normally be entitled to receive back pay commencing on June 30, 2020. However, because she did not become a Federal employee until August 29, 2021, she is entitled to FLSA overtime back pay from that date to June 30, 2022. While our decision specifically establishes the claim period for purposes of preserving the claim, by extension it also applies to the period going forward if the major duties and responsibilities evaluated in this decision essentially remain the same. The agency must follow the compliance requirements on page ii of this decision.

The claimant provided an approximate number of overtime hours worked during certain pay periods. The agency provided Time and Attendance records (i.e., copies of timecards from CASTLE) showing the claimant worked overtime hours during certain pay periods. The agency must review the claimant’s pay records during the claim period, and compute back pay for the difference between the FLSA overtime pay owed and any overtime already paid under the agency’s core compensation pay system, and interest on the back pay, as required in 5 CFR 550.805 and 550.806, respectively. If the claimant believes the agency incorrectly computed the amount, she may file a new FLSA claim with this office.

 

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