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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Robert D. Hendler
Classification and Pay Claims
Program Manager
Merit System Audit and Compliance


09/06/2011

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Date

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 Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA).  There is no further right of 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 this decision.  The agency should identify all similarly situated current and, to the extent possible, former employees and ensure they are treated in a manner consistent with this decision, as provided for in 5 CFR 551.708.

Introduction

The claimant asserts he was erroneously considered exempt from the overtime provisions of the FLSA while on temporary assignment as a member of a National Disaster Medical System team, and that he accordingly should have been paid overtime for hours spent on "standby."  He is employed by the Department of Health and Human Services as a Psychologist, GS-180-13, and is classified as exempt from the provisions of the FLSA.  We have accepted and decided this claim under section 4(f) of the FLSA of 1938, as amended, codified at section 204(f) of title 29, United States Code (U.S.C).

We received the claim on March 15, 2010, and the agency’s administrative report on February 28, 2011.  In reaching our decision, we have carefully considered all information furnished by the claimant and his agency, and interviewed the claimant on April 5, 2011, to obtain additional information. 

Background

From August 23, 2008, through August 29, 2008, the claimant was deployed with the National Medical Response Team-Central (NMRT-C) during the National Democratic Convention (NDC) in Denver, Colorado.  The team was tasked with providing emergency medical response capabilities for potential emergencies involving biological, chemical, radiological, or other hazardous exposures during the convention week.  In order to provide for immediate response should an emergency arise, the team was stationed in the NMRT warehouse in Denver 24 hours per day for the convention week.  The claimant states:

During that time, no one was permitted to leave the premises for personal reasons, our 12-hour day shifts were spent in required training sessions, and our 12-hour night shifts were spent on standby readiness to respond, participating in drills, and standing watch.  At all times throughout the 24-hour days, we were expected to be able to respond to emergencies within minutes of notification.  Meals were catered in at our personal expense.  My primary duty during this deployment was as the non-ambulatory decontamination monitor, an emergency technician-level function.  My role as team Psychologist was a collateral duty.

Basis of the Claim

The claimant articulates the issues involved in his claim as follows:

a. standby duty pay was not paid pursuant to 5 CFR 551.202 for the additional 12 hours night shift spent on standby for six (6) nights;

b. I was erroneously listed as "exempt" from overtime requirements, even though FLSA exemptions do not apply to rescue workers, hazardous materials workers, and similar employees regardless of rank or pay level, who perform work such as rescuing fire, crime or accident victims, which was the nature of this duty;

c. because we were sequestered in a warehouse and not permitted to leave even for meals, an exemption to the Federal Travel Regulations, Part 301-11, should have been made and we should have received a per diem to cover food expenses.  Instead, we were required to pay out of our own pockets to have our meals delivered.  That expense has not been reimbursed.[1]

The appellant's timecard indicates that for the period in question, he was paid for 48 hours of regular time (i.e., eight hours per day for August 23 through August 28) and 29 hours of overtime (four hours per day for August 23 through August 28 plus five hours for August 29); i.e., he was paid for 12-hour "shifts" for the first six days and for five hours on the final day of the DNC.

Work Performed During the Claim Period

The appellant's position is classified as Psychologist, GS-180, and he does not dispute that this work is representative of his regular duties.  However, our interviews with the claimant and his supervisor show during the subject deployment his role was that of "non-ambulatory decontamination monitor."  In the event of an emergency, the claimant would have been responsible for monitoring chemical or radiological exposure on non-ambulatory patients using various sensor equipment.  Since no emergency occurred during the deployment, the claimant along with the rest of the team was required to spend the majority of the time on duty in mandatory training sessions and otherwise maintaining a state of readiness to respond.  Additionally, all team members were required to stand security watches every other night on a rotating basis such that every 2-hour block had at least three awake team members on duty, responsible for the security and safety of the operation, equipment, and facility.  This involved patrolling the immediate area of the warehouse and monitoring communication links with other participating activities.  The claimant reported that he was assigned three such watches from 10:00 p.m.-12:00 a.m., 12:00 a.m.-2:00 p.m., and 4:00 a.m.-6:00 a.m., on separate nights.  There were also three nighttime drills during the course of the week, at approximately 10:00 p.m., 2:00 a.m., and 5:00 a.m., wherein all team members practiced responding to an emergency by donning protective gear, gathering equipment, and reporting to their assigned vehicles.  These drills took approximately 1½-2 hours.  Team members were not permitted to leave the facility for the period of the deployment. 

Evaluation of FLSA Coverage

OPM’s regulations administering the FLSA for Federal employees are contained in Part 551 of title 5, Code of Federal Regulations (CFR).  The FLSA regulations currently in effect were effective October 17, 2007.  Since the claim period in the instant case is August 23-29, 2008, the claim is covered by these regulations. 

Under 5 CFR 551.202, an employing agency must designate an employee FLSA exempt only when the agency correctly determines the employee meets the requirements of one or more of the exemption criteria.  In all exemption determinations, the agency must observe the following principles:  Each employee is presumed to be FLSA nonexempt unless the employing agency correctly determines that the employee clearly meets one or more of the exemption criteria.  Exemption criteria must be narrowly construed to apply only to those employees who are clearly within the terms and spirit of the exemption.  The burden of proof rests with the agency that asserts the exemption.  If there is a reasonable doubt as to whether an employee meets the criteria for exemption, the employee should be designated FLSA nonexempt.  The designation of a position’s FLSA status ultimately rests on the duties actually performed by the employee.  There are three exemption categories primarily applied to Federal employees: executive, administrative, and professional, found in 5 CFR, Part 551, Subpart B. 

The agency determined the claimant’s work is exempt from coverage under the FLSA based on the professional exemption criteria.  The claimant does not dispute the correctness of this exemption determination for his regular duties as a Psychologist.  The claimant believes he should have been considered nonexempt only for the period of his deployment to the DNC from August 23-29, 2008.

The relevant regulatory guidance is contained in 5 CFR 551.211(f), which states:

Emergency situation.  Notwithstanding any other provisions of this section, and regardless of an employee's grade level, the agency may determine that an emergency situation exists that directly threatens human life or safety, serious damage to property, or serious disruption to the operations of an activity, and there is no recourse other than to assign qualified employees to temporarily perform work or duties in connection with the emergency.  In such a designated emergency-

            (1) Nonexempt employee.  A nonexempt employee remains nonexempt whether the employee performs nonexempt  work or exempt work during the emergency; and

            (2) Exempt employee.  The exemption status of an exempt employee must be determined on a workweek basis.  The exemption status determination of exempt employees will result in the employee either remaining exempt or becoming nonexempt for that workweek, as described in paragraphs (f)(2)(i) and (f)(2)(ii) of this section.

            (i) Remain exempt.  An exempt employee remains exempt for any workweek in which the employee’s primary duties for the period of emergency work are exempt as defined in this part.

            (ii) Become nonexempt.  An exempt employee becomes nonexempt for any workweek in which the employee’s primary duties for the period of emergency work are nonexempt as defined in this part.

"Emergency" is defined similarly in CFR 551.104 as follows:

Emergency means a temporary condition that poses a direct threat to human life or safety, serious damage to property, or serious disruption to the operations of an activity, as determined by the employing agency.

The deployment of the NMRT-C during the DNC was not an "emergency situation" either as determined by the agency or within the meaning of CFR 551.104 above.  According to "Health and Medical Operations Order 2008-09" for the 2008 DNC, issued by the DHHS Office of Preparedness and Emergency Operations, the DNC was designated as a "National Special Security Event" by the Department of Homeland Security.  The deployment was part of the safety and security planning for this event to provide the capability for immediate chemical, biological, and radiological decontamination operations should such an emergency occur.  The DNC was not in itself an "emergency situation" that directly threatened human life or safety, serious damage to property, or serious disruption to the operations of an activity; no such emergency presented itself during the course of the event; and the agency did not determine that an emergency existed.  That the claimant was required to remain in a state of readiness to respond to any such emergency should it have occurred is not equivalent to actually responding to an emergency situation.  Therefore, since the claimant's deployment was not the result of an emergency situation as defined in 5 CFR 551.104, then no change in the exemption status of his position is warranted under 5 CFR 551.211(f).

Exemption status during temporary assignments in non-emergency situations as it applies to exempt employees is addressed in 5 CFR 551.211(e), which states as follows:

Effect on exempt employees. (1) An exempt employee who must temporarily perform work or duties that are different from the employee’s primary duties remains exempt for the entire period of temporary work or duties unless both of the following conditions are met:

   (i) The period of temporary work or duties exceeds 30 consecutive calendar

days; and

   (ii) The employee’s primary duties for the period of temporary work are not exempt as defined in this part.

Since the claimant's deployment was less than 30 calendar days in length, the 30-day test is not met.  Therefore, the exemption determination of the claimant's primary duty during the deployment is moot and the claimant remains exempt for the entire period of this temporary assignment as required by 5 CFR 551.211(e) above.  

Summary

The claimant’s assertion that his position should be designated FLSA nonexempt for the one-week period of his deployment at the DNC misconstrues the FLSA exemption determination process.  Under 5 CFR 551.201, the employing agency must review and make a determination on each employee’s exemption status, and 5 CFR 551.202(d) requires that an employee who clearly meets the criteria for exemption must be designated FLSA exempt.  In other words, an FLSA exemption designation is assigned to an employee based on the primary work the employee is assigned and performs rather than to individual sets of duties.  The claimant’s primary duties are those of a Psychologist, not a rescue worker, hazardous material worker, or similar employee.  A temporary assignment does not change an employee’s exemption status except under the limited circumstances provided for under 5 CFR 551.211(f) and 5 CFR 551.211(e).

Decision

The claimant remained exempt from the overtime pay provisions of the FLSA for the period of the claim.  Since the claimant requested overtime pay for standby duty under the FLSA, as provided in 5 CFR 551.431, we will not consider the applicability of standby duty pay under the circumstances in question and no overtime pay is due the claimant under the FLSA, as he is exempt from its overtime pay provisions.

 

[1] Claims involving expenses incurred by Federal civilian employees for official travel and transportation, including per diem, are under the jurisdiction of the General Services Administration’s Civilian Board of Contract Appeals.  Therefore, the claimant’s request for per diem for the period of the DNC deployment will not be considered within the context of this claim decision. 

 

 

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