Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
Ana A. Mazzi
Principal Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance
10/11/2024
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. If the claimant believes the agency has incorrectly computed the amount owed him, 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 taken 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.
On May 6, 2022, OPM received a FLSA claim from representatives of the claimant challenging the exemption status of his positions when he worked eight hundred overtime (OT) hours, but was only paid at his regular hourly rate between April 2020, and April 2022. However, in a May 3, 2023, email his representatives amended the OT hours worked to six hundred. During this period the claimant occupied an Industrial Hygienist, FG-0690-14, position (herein referred to as FG-0690-14, IH) and was assigned to the Program Implementation Manager Environmental Occupational Safety and Health (EOSH) Team, Planning and Requirements Group, Eastern Service Center, Mission Support Services, East Point, Georgia, Federal Aviation Administration (FAA), U.S. Department of Transportation (DoT), in New York, New York. During another part of the claim period, he occupied an Industrial Hygienist, FV-0690-J, position (herein referred to as FV-0690-J, IH) and was assigned to the EOSH Program Support Center, Technical Services, Technical Operations Eastern Service Area (ESA), Atlanta, Georgia, FAA, DoT, in Westbury, New York. He also occupied two other positions addressed below which are not in dispute.
The agency determined the work the claimant performed 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 representatives specifically request that the claimant be paid the difference between the overtime (OT) hours he worked at his regular hourly rate, and the FLSA overtime rate he is owed. We have accepted and decided this claim under section 4(f) of the FLSA of 1938, and codified as section 204(f) of title 29, United States Code (U.S.C.).
During the period referenced above, the claimant served in several positions. He occupied an FG-0690-14, IH position under position description (PD) number AHFN6GY, and an FV-0690-J, IH position under standardized position document (PD)/job analysis tool (JAT) number AHFS6GJ, which were provided by the agency. When the period began, the claimant occupied a Program Manager, FV-0340-J, position but he and his representatives do not dispute the agency’s FLSA exempt designation, so we have not addressed it in this decision. Based on the record, the agency reassigned the claimant to an Aviation Technical Systems Specialist, FV-2186-J, position (herein referred to as FV-2186-J, ATSS) effective October 11, 2020, then immediately corrected it effective the same date to document he never held the position. However, the claimant’s representatives state he occupied the FV-2186-J, ATSS position over six pay periods, received the FLSA OT pay rate for the OT hours worked due to a change in a collective bargaining unit agreement that entitled time and one-half OT for positions in the 2186 series, and do not dispute the agency’s FLSA designation. Thus, we will not address this position further in our decision. Therefore, we will determine the proper FLSA exemption designation for the FG-0690-14, IH and FV-0690-J, positions in this decision.
The claimant disagrees with the agency’s exemption determinations for the two disputed positions referenced above, believing they should be nonexempt and requests the difference between the OT pay received (at his regular rate) and the FLSA OT pay rate. In adjudicating this claim, our concern is to make an independent decision about the FLSA exemption status of the claimant’s positions. We must make that decision solely by comparing the claimant’s duties and responsibilities to FLSA regulations.
As discussed in 5 CFR 551.202(e), while established position descriptions and position titles “may assist in making initial FLSA exemption determinations, the designation of an employee as FLSA exempt or nonexempt must ultimately rest on the duties actually performed by the employee.” In adjudicating this claim we applied this principle.
FG-0690-14, IH position
Our review disclosed the duties described in the PD (#AHFN6GY) for this position are not completely accurate because it overstates duties performed by the claimant. For instance, it states the claimant provides direction to field managers. Rather, our fact finding disclosed the claimant responds to technical questions and requests for information from the Safety and Environmental Compliance Managers (SECM). The PD states the claimant researches and prepares actions to eliminate or control health hazards through new technology, improved procedures, and/or administrative controls. Instead, the claimant performs research and provides recommendations to SECMs based on established Environmental Protection Agency (EPA) and Occupational Safety and Health Administration (OSHA) regulations.
The PD also describes duties performed by other FAA organizations or by higher-level management duties. For instance, the claimant did not develop technical programs, represent the FAA at national policy forums, or conduct industrial hygiene sampling. He did not direct and manage all health and industrial hygiene program objectives and goals for the eastern service area (ESA).
The claimant provided Coronavirus Disease 2019 (COVID-19) technical support functions at the facilities in the ESA (i.e., Boston, New York, Washington, DC, Atlanta, Memphis, Jacksonville, and Miami Districts).
When an employee who reported to a staffed facility (i.e., FAA offices and control towers) tested positive for the COVID-19, the facility was cleaned by a contractor. The claimant could have been assigned to oversee the cleaning process. The Service Support Center (SSC) manager served as the coordinator and set up the date and time with the contractor to send workers to clean the facility. The claimant wore personal protective equipment (PPE) (e.g., safety boots, gloves, goggles, and a respirator) and ensured the FAA maintenance standard operating procedure (SOP) was followed. For example, he ensured contractor personnel used cleaning chemicals in employee work areas approved by the EPA. If the facility manager or designee and air traffic personnel were in the facility, they were isolated from the areas being cleaned. The claimant input the information (e.g., background information and the results of the cleaning process) in a report template before it was uploaded to the database that held such reports.
The claimant served as a Joint Crisis Action Team (JCAT) Duty Officer. If an employee at a staffed facility tested positive for the COVID-19, a meeting was held to determine whether the facility needed a cleaning. When the claimant attended one of these meetings, he received an Outlook telcon invitation. The other attendees included the affected facility SSC manager and his/her supervisor, the affected Service Area Director, and a FAA physician. The managers and physician discussed whether a cleaning and contact tracing were needed. If a cleaning was required, the claimant notified an employee from the listing established by FAA managers of employees on-call to oversee contractor cleanings.
FV-0690-J, IH position
Our review disclosed the duties described in the PD/JAT (#AHFS6GJ) for this position are not completely accurate in that it describes numerous duties performed by other FAA organizations or are higher-level management duties. For instance, the claimant did not provide direct project management or technical direction. He did not organize resources for large projects/programs/work activities. The claimant did not direct and manage all health and industrial hygiene program objectives and goals or acquire and allocate resources. He did not develop programs on occupational safety and health. The claimant did not provide leadership for highly complex and challenging activities under the minimal direction of a manager or executive. He did not formulate and recommend to senior management positions on major projects/policies/issues. The claimant did not develop new and innovative approaches, methodologies, and/or techniques. He did not act as a team leader to define and direct challenging projects/ programs/activities or develop training on industrial hygiene related topics. The claimant did not apply experience and expert knowledge to conduct functional activities for projects/programs that often require the development of new and innovative approaches. He did not identify and resolve challenging problems or issues that impact on the accomplishment of strategic objectives. The claimant did not provide leadership and guidance on performing in-depth monitoring, testing, and sampling for health hazards. He did not conduct measurements using industrial hygiene meters and industrial hygiene sampling during the claim period. The claimant did not often represent the major subdivision and line of business/staff office (LOB/SO) as a principal point of contact to provide advice and guidance on the applications of policies and procedures. He did not represent the FAA at national policy forums. The claimant was not often asked to develop new policies, procedures, and approaches that take into consideration FAA policies, Government wide rules and regulations, and external concerns. He did not create new solutions and policy interpretations as situations required. The claimant did not have broad discretion to ensure the alignment of organizational goals and policies and the requirements of projects and/or other work activities. His work activities did not typically impact directly on the objectives of one or more organizational units, major subdivisions, and/or LOBs/SOs and often impact on the objectives of the FAA.
The PD/JAT also overstates duties performed by the claimant. For instance, it states the claimant provides direction to managers to ensure all plans and programs incorporate Federal and State mandated health and safety standards into work procedures. Rather, our fact-finding disclosed the claimant made recommendations to the SECMs. The PD/JAT also states the claimant functioned as the Service Area Certified Industrial Hygienist to advise managers on health risks. Instead, our fact-finding disclosed the claimant only provided recommendations to managers on health risks.
In this position the claimant initially oversaw COVID-19 cleanings at the facilities, but after five months major duties were added to include providing technical support functions to the SECMs in the ESA. These duties were the same as those he provided in his FG-0690-14, IH position described above. They included overseeing the cleaning process performed by contractors at FAA staffed facilities, and serving as the JCAT Duty Officer
In approximately February 2021, FAA senior managers decided the janitorial staff at FAA-operated major air traffic control facilities (e.g., Terminal Radar Approach Control (TRACON) facilities and Air Route Traffic Control Centers (ARTCC)) would perform deep-level cleanings at least daily. The claimant was assigned to oversee some of the cleanings and wore PPE (e.g., safety boots, gloves, goggles, and a respirator). He completed the checklist created by HQ and ensured the cleanings were performed within the established standards. Any deviations from the checklist were brought to the attention of the facility manager.
In approximately March 2021, more major duties were added to the claimant’s position. The additional duties included providing technical support functions to the SECMs in the ESA regarding various EOSH programs. He responded to requests for information to safely plan work from the SECMs for the SSC managers. For instance, the claimant was contacted by a SECM unfamiliar with taking indoor air samples after stating an SSC manager received complaints from his/her employees about foul or musty odors in the air, coughing, or headaches. The claimant used established manufacturer’s procedures to explain to the SECM how to safely collect indoor air samples using prescribed sampling equipment. The claimant supplied FAA-specific SOPs to SECMs, which were written plainly and required no interpretation. The SOPs covered topics that included environmental safety procedures to be followed to drill through floors with asbestos and safely remove lead-based paint from interior facility walls.
The claimant also provided Asbestos Operations/Maintenance, Spill Prevention Control and Countermeasure, and Forklift Safety Training after being notified the training was needed. All training was given to the subordinates of SSC managers. The claimant contacted the appropriate manager to request the names of the subordinates and the dates and times available. Based on the information provided, he set-up a ZOOM call, compiled (to include incorporating needed updates) and presented the training material which included a hands-on portion, provided the course information to the attendees, and finally a list of those attending to the appropriate manager and training records personnel.
The claimant also conducted asbestos or lead surveys if an SSC manager received complaints from or believed his/her employees were exposed to asbestos or lead. A contractor would take samples from building materials which were sent to a laboratory for testing to confirm the sources of exposure. As a result of exposure findings, the claimant made recommendations to mitigate the hazards based on established OSHA and/or EPA guidelines to the appropriate HQ program manager. The program manager examined the recommendations to determine their validity and if they should be implemented by the contractor.
In this position the claimant attended monthly Occupational Safety, Health, and Environmental Compliance Committee (OSHECOMM) meetings. The other attendees included managers, employees, and union representatives. The claimant served as the point-of-contact for EOSH-related questions and used established OSHA and EPA regulations to respond.
In reaching our FLSA decision, we carefully reviewed all documents and information provided by the claimant, his representatives, and the agency, as well as information gained through an interview and follow up questions with the claimant. However, we were unable to interview the claimant’s former supervisors when he occupied the positions specified above during the claim period as one of them was not available and the others had retired.
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 and filed no claim with his employing agency. OPM received his claim on May 6, 2022, and therefore it is subject to a two-year statute of limitations commencing on May 6, 2020. However, the claimant’s representatives seek overtime pay commencing in April 2020. Because that date exceeds the two-year statute of limitations it is time barred.
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. 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). 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. Our FLSA evaluation of the claimant’s two disputed positions held during the claim period follows.
The current regulations in 5 CFR 551.205 establish the executive exemption criteria, in relevant part, as follows:
(a) An executive employee is an employee whose primary duty is management (as defined in 5 CFR 551.104) of a Federal agency or any subdivision thereof (including the lowest recognized organizational unit with a continuing function) and who:
(1) Customarily and regularly directs the work of two or more other employees; and
(2) Has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees, are given particular weight.
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.
Professional and learned professional exemption criteria
The current regulation in 5 CFR 551.207 states that to qualify for the professional exemption, an employee’s primary duty must be the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction or requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
The current regulations in 5 CFR 551.208 (Learned professionals) state, in relevant part:
(a) To qualify for the learned professional exemption, an employee’s primary duty must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. The work must include the following three elements:
(1) The employee must perform work requiring advanced knowledge. Work requiring advanced knowledge is predominantly intellectual in character and includes work requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical or physical work. An employee who performs work requiring advanced knowledge generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances. Advanced knowledge cannot be attained at the high school level;
(2) The advanced knowledge must be in a field of science or learning which includes the traditional professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy, and other similar occupations that have a recognized professional status as distinguished from the mechanical arts or skilled trades where in some instances the knowledge is of a fairly advanced type, but is not in a field of science or learning; and
(3) The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction which restricts the exemption to professions where specialized academic training is a standard prerequisite for entrance into the profession. The best prima facie evidence that an employee meets this requirement is possession of the appropriate academic degree. However, the word “customarily” means that the exemption is appropriate for employees in such professions who have substantially the same knowledge level and perform substantially the same work as the degreed employees, but who attained the advanced knowledge through a combination of work experience and intellectual instruction. For example, the learned professional exemption is appropriate in unusual cases where a lawyer has not gone to law school, or a chemist does not possess a degree in chemistry. However, the learned professional exemption is not applicable to occupations that customarily may be performed with only the general knowledge acquired by an academic degree in any field, with knowledge acquired through an apprenticeship, or with training in the performance of routine mental, manual, mechanical, or physical processes. The learned professional exemption also does not apply to occupations in which most employees have acquired their skill by experience rather than by advanced specialized intellectual instruction. The position of Engineering Technician is an example of such an occupation where the employee collects, observes, tests and records factual scientific data within the oversight of professional engineers, and performs work using knowledge acquired through on-the-job and classroom training rather than by acquiring the knowledge through prolonged academic study.
FG-0690-14, IH position
The record did not include a “Federal Aviation Administration (FAA) Fair Labor Standards Act (FLSA) Exemption Worksheet” which would have described the FLSA exemption designation made by the agency. However, the claimant’s PD and assignment SF-50 shows the position designated FLSA exempt. After careful review of the actual duties performed by the claimant we disagree. Absent agency specific information on the basis for exemption, to make our determination of the two disputed positions we have applied the executive, administrative, and professional and learned professional exemption criteria to the work performed.
Executive exemption criteria
As described in 5 CFR 551.205, an executive employee is an employee whose primary duty is management of a Federal agency or any subdivision thereof. As defined in 5 CFR 551.104, management means performing activities such as interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or financial records for use in supervision or control; appraising employees’ productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment, or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures.
The claimant’s work in this position does not meet the executive exemption criteria. The claimant’s primary duties do not constitute management as defined in 5 CFR 551.104 because he did not perform any of the activities listed.
Based on the preceding analysis, the claimant’s work does not meet the executive exemption criteria.
Administrative exemption criteria
The claimant’s work in this position does not meet the administrative exemption criteria. While the claimant performed office or non-manual work, his duties were not an extension of the agency’s management process or general business operations and did not help with or affect the management of significant matters within the agency. Rather, the claimant provided COVID-19 technical support functions at ESA facilities. In addition, he did not exercise discretion and independent judgment with respect to matters of significance as described in the ten factors of 5 CFR 551.206(b). For example, he had no authority to formulate, affect, interpret, or implement management policies or operating practices at his level. Work that significantly affected 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 was outside the scope of the claimant’s position. Instead, he provided COVID-19 technical support functions and notified the next employee from the listing established by FAA managers of employees on-call to oversee contractor COVID-19 cleanings.
The claimant did not carry out major assignments in conducting the operations of the organization. He worked specifically with ESA SSC managers concerning COVID-19 cleanings at their affected facilities and ensured the contractor’s cleaning process followed the FAA maintenance SOP within an organization that provided EOSH programmatic support to all the districts within the service area. The claimant carried out very specific technical support functions, rather than major assignments in conducting the operations of his organization, thus his work did not affect the organization’s operations to a substantial degree. He did not have the authority to commit the employer in matters that had a significant financial impact. That authority rested with higher-level management officials.
The situations the claimant regularly dealt with did not require him to waive or deviate from established policies and procedures. He did not perform any work requiring him to have authority to negotiate and bind his organization on significant matters or make significant decisions. Although he used specialized knowledge in the EOSH field, he did not consult with and provide expert advice to FAA management relating to the overall management or the general business operations of the unit, such as would be provided by certain management consultant or program analyst positions. Rather, the claimant provided COVID-19 technical support functions to SSC managers when one of their employees tested positive. He also served as a JCAT Duty Officer and notified the next on-call employee regarding overseeing a contractor COVID-19 cleaning.
The claimant was not involved in planning long- or short-term organizational objectives for the organization. He had no responsibility to investigate and resolve matters of significance on behalf of management or represent the organization in handling complaints, arbitration of disputes, or resolution of grievances. Those matters were within the authority and responsibility of higher-level management officials.
While the claimant performed his work independently, free of immediate supervision and direction, in contrast to the application of discretion and independent judgment, he used knowledge and skill in applying well-established rules, regulations, standards, and written precedents which were applicable to the work assigned. Therefore, the decisions he made were not significant within the meaning of the regulation in that they affected the procedural details of the technical support he provided and primarily focused on ensuring established requirements were met.
Based on the preceding analysis, the claimant’s work does not meet the administrative exemption criteria.
Professional and learned professional exemption criteria
The Industrial Hygiene, 0690 series, is a professional series which is not specifically included under the learned professional exemption criteria detailed in 5 CFR 551.208(c) through (m). However, Industrial Hygienists may still be considered learned professionals under 5 CFR 551.208(b) which states:
“The areas in which the professional exemption may be applicable are expanding. As knowledge is developed, academic training is broadened and specialized degrees are offered in new and diverse fields, thus creating new specialists in particular fields of science or learning. When an advanced specialized degree has become a standard requirement for a particular occupation, that occupation may have acquired the characteristics of a learned profession.”
After a thorough review of the academic training and specialized degrees currently available for Industrial Hygiene, we find the field of Industrial Hygiene meets the definition of “profession” as described in 5 CFR 551.208. Industrial Hygienists anticipate, recognize, evaluate, prevent, and control environmental factors or stresses arising in or from the workplace which may cause sickness, impaired health and well-being, or significant discomfort among workers or citizens of the community. They use a broad range of scientific equipment and methods to analyze, identify, and measure human exposure to a wide variety of chemical, physical, ergonomic, or biological contaminants and conditions. Due to job market demands for individuals with specific training and certification in the field of Industrial Hygiene, undergraduate and graduate degrees in Industrial Hygiene are currently offered at several colleges and universities in the United States. In addition, professional organizations such as the American Industrial Hygiene Association and the American Board of Industrial Hygiene offer course accreditation, professional certification (e.g., Certified Industrial Hygienist), and continuing education programs for sustaining certifications. Based on this criteria, Industrial Hygiene meets the definition of a “profession” as stated in 5 CFR 551.208(b).
However, in contrast to professional Industrial Hygiene duties and responsibilities, in this position the claimant’s primary duties involved providing routine technical support functions. He would oversee contractor COVID-19 cleanings for the ESA’s SSC managers when one of their employees tested positive and as a JCAT Duty Officer notify the next on-call employee regarding overseeing a contractor COVID-19 cleaning.
In comparing the claimant’s primary duties to the learned professional exemption criteria, we found that although he possesses the advanced scientific knowledge obtained through prolonged specialized educational instruction to qualify as an Industrial Hygienist, 0690, his duties in this position did not require the use of advanced knowledge of a predominantly intellectual character to analyze, interpret, or make deductions from varying facts or circumstances. Instead, they consisted of routine technical work, such as overseeing COVID-19 contractor cleanings (e.g., to ensure the FAA maintenance SOP is followed, report problems with the contractors to the SSC manager, and check that the cleaning chemicals being used in employee work areas are EPA approved). As a JCAT Duty Officer, he attended telcons and would notify the next on-call employee to oversee the next contractor COVID-19 cleaning if determined necessary by the managers and physician on the call, and utilized basic clerical skills to input the results of COVID-19 cleanings in a report template. Further, the claimant’s primary duties did not require the consistent exercise of discretion and judgment. Rather, he worked within the parameters of clearly established guidance and was not allowed to deviate from established guidance to respond to new, unusual, or controversial issues or conditions without the express approval of his supervisor. In addition, although the claimant possesses advanced scientific knowledge obtained through prolonged educational instruction (i.e., bachelor’s degree in health science and a master’s degree in public health), he did not apply the advanced scientific knowledge obtained from his courses to perform his work in this position during the claim period.
Based on the preceding analysis, the claimant’s work does not meet the professional or learned professional exemption criteria.
FV-0690-J, IH position
As documented in the “Federal Aviation Administration (FAA) Fair Labor Standards Act (FLSA) Exemption Worksheet” dated July 30, 2020, the agency determined the claimant’s FV-0690-J, IH duties do not meet the executive exemption criteria and the claimant, and his representatives do not disagree. After a careful review we concur with the agency thus have not addressed that criterion separately in our analysis. However, the agency determined the duties and responsibilities described in his PD/JAT meet the administrative, professional and learned professional exemption criteria of the FLSA, but the claimant disagrees. Therefore, our evaluation for this position is limited to the administrative, professional and learned professional exemption criteria.
Administrative exemption criteria
The claimant’s work in this position does not meet the administrative exemption criteria. While the claimant performed office or non-manual work, his duties were not an extension of the agency’s management process or general business operations and did not help with or affect the management of significant matters within the agency. Rather, the claimant provided COVID-19 technical support functions at ESA facilities and furnished technical support regarding various EOSH programs. In addition, he did not exercise discretion and independent judgment with respect to matters of significance as described in the ten factors of the regulation noted above. For example, he had no authority to formulate, affect, interpret, or implement management policies or operating practices at his level. Work that significantly affected 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 was outside the scope of the claimant’s position. Instead, his work included attending OSHECOMM meetings, overseeing contractor COVID-19 cleanings, and responding to requests from SECMs for information to safely plan work.
The claimant did not carry out major assignments in conducting the operations of the organization. He worked with ESA SSC managers providing COVID-19 technical support functions and with SECMs furnishing technical support concerning various EOSH programs within an organization that provided EOSH programmatic support to all the districts within the service area. The claimant carried out very specific requests for technical assistance, rather than major assignments in conducting the operations of his organization, thus his work did not affect the organization’s operations to a substantial degree. He did not have the authority to commit the employer in matters that had a significant financial impact. That authority rested with higher-level management officials.
The situations the claimant regularly dealt with did not require him to waive or deviate from established policies and procedures. He did not perform any work requiring him to have authority to negotiate and bind his organization on significant matters or make significant decisions. Although he used specialized knowledge in the EOSH field, he did not consult with and provide expert advice to FAA management relating to the overall management or the general business operations of the unit, such as would be provided by certain management consultant or program analyst positions. Rather, the claimant provided COVID-19 technical support functions to SSC managers and technical advice and recommendations to SECMs related to various safety programs requirements. He also supplied FAA-specific SOPs to the SECMs.
The claimant was not involved in planning long-or short-term organizational objectives for the organization. He had no responsibility to investigate and resolve matters of significance on behalf of management or represent the organization in handling complaints, arbitration of disputes, or resolution of grievances. Those matters were within the authority and responsibility of higher-level management officials.
While the claimant performed his work independently, free of immediate supervision and direction, in contrast to the application of discretion and independent judgment, he used knowledge and skill in applying well-established rules, regulations, standards, and written precedents which were applicable to the work assigned. Therefore, the decisions he made were not significant within the meaning of the regulation in that they affected the procedural details of the technical support he provided and primarily focused on ensuring established requirements were met.
Based on the preceding analysis, the claimant’s work does not meet the administrative exemption criteria.
Professional and learned professional exemption criteria
As previously discussed under our analysis of the claimant’s FG-0690-14, IH position, the Industrial Hygiene, 0690 series meets the definition of a “profession”, although it is not specifically included under the learned professional exemption criteria detailed in 5 CFR 551.208(c) through (m). Like other professions, positions in the 0690 series require advance knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.
However, in contrast to professional Industrial Hygiene duties and responsibilities, in this position the claimant’s primary duties involved providing routine technical support functions. He would oversee contractor COVID-19 cleanings, notify the next on-call employee regarding overseeing a contractor COVID-19 cleaning, and provide routine technical support to the SECMS regarding various EOSH programs (e.g., supply SOPs and draft correspondence).
In comparing the claimant’s primary duties to the learned professional exemption criteria, we found that although he possesses the advanced scientific knowledge obtained through prolonged specialized educational instruction to qualify as and Industrial Hygienist, 0690, in this position during the claim period his primary duties did not require the use of advanced knowledge of a predominantly intellectual character to analyze, interpret, or make deductions from varying facts or circumstances. Instead, they consisted of routine technical work, such as responding to requests for information to safely plan work in accordance with established guidance (e.g., using prescribed manufacturer’s procedures to explain how to safely collect indoor air samples, reviewing asbestos/lead survey reports and making recommendations to mitigate the hazards based on OSHA/EPA guidelines, and serving as the point-of-contact at OSHECOMM meetings for EOSH-related questions using OSHA/EPA regulations to respond). He also gathered, assembled, and presented training based on the established requirements of the Federal agency(s) overseeing the training topic, utilizing basic skills to compile routine information such as the dates and times an SSC manager’s subordinates were available to attend training. Further, the claimant’s primary duties did not require the consistent exercise of discretion and judgment. Instead, he worked within the parameters of clearly established guidance and was not allowed to deviate from established guidance to respond to new, unusual, or controversial issues or conditions without the express approval of his supervisor.
Based on the preceding analysis, the claimant’s work does not meet the professional or learned professional exemption criteria.
The claimant’s work in the FG-0690-14, IH position does not meet the executive, administrative, or professional and learned professional exemption criteria. His work in the FV-0690-J, IH position does not meet the administrative or professional and learned professional exemption criteria. Therefore, his disputed positions during the claim period are properly designated as FLSA nonexempt, i.e., covered by the overtime pay provisions of the FLSA. He is entitled to compensation for all overtime hours worked at the FLSA overtime rate. The claim was received by OPM on May 6, 2022, and the claimant can receive back pay for two years prior to that date, i.e., May 6, 2020. The month of April 2020 is time barred. The agency must follow the compliance requirements on page ii of this decision. 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 the decision essentially remain the same. In particular, the agency must verify whether the claimant performs the same major duties and responsibilities described in this decision for the FV-0690-J, IH position, which appears to be his position of record.
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 reconstruct the claimant’s pay records for the period of the claim and compute back pay for the difference between the FLSA overtime pay owed and any overtime worked but only paid at his regular rate under the agency’s core compensation pay system, and interest on the back pay, as required under 5 CFR 550.805 and 550.806, respectively. If the claimant believes the agency incorrectly computed the amount, he may file a new FLSA claim with this office.