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


05/26/2022

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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 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 him.  If the claimant believes that the agency has incorrectly computed the amount owed him, he may file a new FLSA claim with this office.  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).

Introduction

On August 30, 2021, OPM’s Merit System Accountability and Compliance received a Fair Labor Standards Act (FLSA) claim from Mr. James G. Shaheen requesting “lost wages” for 155.5 hours of overtime worked from March 16, 2020 through June 1, 2021, during which time he served as an Operations Planning Specialist, GS-0301-11, with the Plans & Operations Division (POD), Log Readiness Center (LRC), Fort Detrick, Army Field Support Battalion-Campbell (AFSBC), 406^th Army Field Support Brigade, U.S. Army Sustainment Command (USASC), U.S. Department of the Army (DA), at Fort Detrick, Maryland.  We received the agency administrative report (AAR) on August 30, 2021, and 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.).

Background and General issues

The agency originally designated the claimant’s position as FLSA exempt, i.e., not covered by the overtime pay provisions of the FLSA.  However, DA reclassified the claimant’s FLSA status to non-exempt, i.e., covered by the overtime pay provisions of the FLSA, effective May 10, 2020, after a 2021 audit of the FLSA status of his position.  In its AAR to OPM, DA estimates that the claimant worked 155.5 hours of overtime (OT) during the period between March 15, 2020, and June 5, 2021, and states the claimant was credited and used compensatory time (CT) for the stated OT hours.

The claimant does not disagree with the DA’s decision to change his FLSA status from exempt to nonexempt, nor does he disagree with the estimate that he worked 155.5 hours of OT during the claim period, or with DA’s assertion that he was credited and used CT for the hours.  However, the claimant questions DA’s decision to only credit him CT for the 155.5 hours of OT he worked during the period in question, instead of the full rate of FLSA OT pay he believes he is owed.  He seeks lost wages in the amount of $3,310.59 to cover the difference between the normal rate of pay he received and the full rate of FLSA OT pay for the 155.5 hours of OT he worked between March 15, 2020, and June 5, 2021.

Position information

Fort Detrick’s LRC is the field operating activity within AFSBC, that is responsible for providing installation logistics services to sustain unit readiness and to ensure responsive force generation in support of mobilization.  POD is responsible for a variety of functions related to planning, obtaining, distributing, tracking, and recording a variety of equipment and materials.

The claimant serves as an Operations Planning Specialist, GS-0301-11, with the POD.  He provides supply and logistics technical support to a variety of POD and LRC projects and programs, such as materiel readiness, mobilization, unit deployment, contingency stocks, Command Supply Discipline program, Operation ProjectStock, and LRC’s security program.

He coordinates with division chiefs and POD and LRC leadership to identify supply and logistics needs and shortfalls.  He provides technical and administrative support for day-to-day supply and logistics needs.  He also assists with the planning and implementation of supply and logistics portions of broader AFSBC exercises and missions and performs after-action assessments; and produces and submits a variety of after-action reports.

He coordinates with POD and LRC staff to develop and implement a variety of routine, emergency, disaster, and special supply and logistics-related plans (e.g., mobilization/demobilization, operational security, civil defense, disaster relief contingency, and civil disturbances) and ensures that all POD and LRC operations are performed in accordance with existing guidelines, SOPs, and protocols.  He also ensures on-hand supplies and equipment are properly inventoried and maintained in accordance with regulatory guidelines.

He uses the full range of basic clerical and administrative techniques and processes to perform basic clerical tasks, such as populating databases, developing presentations, or drafting documents and reports and providing program clerical assistance during POD and LRC studies and special projects and reviews a variety of documents submitted by affiliated support activities (e.g., policies, procedures, standard operating procedures (SOP), and plans) for accuracy and completeness and submits these to his supervisor for review and concurrence before forwarding to higher-level command managers for approval and implementation.  He drafts a variety of guidelines (e.g., reports, memorandums, local operation plans, SOP, and policies) based on established Federal regulations, agency-level policies, directives, agency protocols, and standard writing guides; updates POD and LRC policies, directives, and guidelines as needed; and answers requests from various staff and employees concerning the appropriate interpretation and implementation of new and established supply, logistics, and transportation policies and regulations.

He gathers, reviews, and submits employee security and background investigation information to Army HQ for processing; directs all security-related issues and questions to HQ and updates the Installation security database of authorized personnel for certain secure areas on the installation.  He also ensures that applicable POD and LRC personnel meet all security training and requirements for access to computers and secure areas of the installation; and coordinates with the installation’s Antiterrorism Officer to conduct random daily security access reviews to identify issues which may pose a security threat (e.g., unlocked doors, suspicious packages, or unauthorized individuals in or around the facility) and reports all findings.

He provides supply and logistics data and information to his supervisor as needed for a variety of purposes, such as presentations, briefings, and cyclical and non-cyclical reports.  He receives and inputs supply and logistics data and information from a variety of sources (e.g., reports, division chiefs, and activities) into standard reports or databases and distributes this information to the appropriate management personnel for further action.

He develops and publishes POD and LRC duty rosters and alert rosters and ensures all applicable personnel are notified of duty dates.  He manages and coordinates a variety of annual publications (e.g., flyers, reports, and plans) which are provided to his supervisor for final review prior to submission to HQ.

He serves as LRC’s Billing Agent and is responsible for monitoring POD and LRC’s use of Government Purchasing Cards to ensure compliance with current Federal and AFSBC guidelines.

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

Evaluation

Period of the Claim

As provided for in 5 CFR 551.702(b), all FLSA 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 employing agency 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.  In his claim to OPM, the claimant states that he did not submit an FLSA claim to his employing agency but elected to submit his FLSA claim directly to OPM.  OPM received the claim on August 30, 2021.  Therefore, the claim date is preserved effective August 30, 2021, and the claim period commences on August 30, 2019.

Evaluation of FLSA Coverage

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 should be designated FLSA nonexempt. (e) The designation of a position’s FLSA status ultimately rests on the duties actually performed by the employee.

DA was unable to provide OPM with documentation specifying which of the exemption criteria detailed in 5 CFR 551 they used to determine the FLSA status of the claimant’s position prior to the 2021 FLSA review, or his position’s current FLSA status effective May 10, 2020.

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 is covered by the executive or professional exemption and based on careful review of the record, we agree it is not covered.  Therefore, our analysis is primarily limited to the administrative exemption criteria in effect during the claim period.

Administrative Exemption Criteria

The current regulation under 5 CFR 551.206 describes 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:

• • Has authority to formulate, affect, interpret, or implement management policies or operating practices;
  • Carries out major assignments in conducting the operation of the organization;
  • 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;
  • Has the authority to commit the employer in matters that have significant financial impact;
  • Has authority to waive or deviate from established policies and procedures without prior approval;
  • Has authority to negotiate and bind the organization on significant matters;
  • Provides consultation or expert advice to management;
  • Is involved in planning long-or short-term organizational objectives;
  • Investigates and resolves matters of significance on behalf of management;
  • 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.

An examination of the duties performed, and authorities held, by the claimant indicates that his work does not meet the administrative exemption criteria.  Although, during the claim period, the claimant performed non-manual administrative and technical supply and logistics support work, he did not perform a support function of substantial importance to DA as envisioned in 5 CFR 551.206.  Instead, the claimant's primary duties were limited to providing technical and administrative support to POD and LRC’s supply and logistics 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 management or DA’s general business operations.

Unlike the administrative exemption, the claimant’s supply and logistics-related duties are not an extension of the DA’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 task he performs during POD’s coordination with LRC during AFSBC missions, exercises, and day-to-day operations.  Unlike the administrative exemption, the scope and effect of the claimant’s duties are limited to POD and LRC supply and logistics programs.  Furthermore, his supply and logistics duties constitute only one element of the larger spectrum of line work performed within his command.

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 the regulation previously listed.  He has no authority to formulate, affect, interpret, or implement management policies or operating practices at the agency level.  Such authority rests with his supervisor or higher-level management within DA.  Instead, the claimant performs administrative and technical support for the supply and logistics-related activities within AFSBC, which do not affect DA’s overall operations to a substantial degree.  He has no authority to commit DA 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 his supervisor or higher-level agency management.  He lacks the authority to negotiate and bind DA concerning significant matters; does not consult with and provide expert advice to DA management; and is not involved in planning DA’s long or short-term organizational objectives.

Also, unlike the administrative exemption, he does not investigate and resolve matters of significance on behalf of DA’s management, nor is he authorized to represent any level of the agency (e.g., POD, LRC, AFSBC, or DA) in handling complaints, arbitration of disputes, or resolution of grievances against these organizations.  Instead, these responsibilities rest with his supervisor or higher-level management within DA.

Based on the preceding analysis, the claimant’s work does not meet the administrative exemption criteria.

Decision on FLSA Coverage

The claimant’s work meets none of the exemption criteria detailed in 5 CFR 551.205 through 551.216, including the administrative criteria, as discussed above.  Therefore, his work is nonexempt and covered by the overtime pay provisions of the FLSA.  He is entitled to compensation for all overtime hours worked at the FLSA overtime pay rate.  The claim was received by OPM on August 30, 2021, and the claimant can receive back pay for up to two years prior to that date.  According to information obtained from the claimant, his supervisor, and the servicing HR office, the claimant received his regular hourly rate of pay for all hours worked during the claim period, including hours worked in excess of 40 hours per week.  Therefore, DA must reconstruct the claimant’s pay records and calculate the difference between the regular hourly rate of pay received for overtime worked and the amount of FLSA overtime pay owed the claimant for overtime hours worked during the claim period; calculate any interest on the back pay, as required under 5 CFR 550.805 and 550.806, respectively; and compensate him accordingly. 

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.  If the claimant believes DA incorrectly computed the amount, he may file a new FLSA claim with this office.

 

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