Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
Disaster Emergency Communications Division
Response Directorate
Office of Response and Recovery
Federal Emergency Management Agency
U.S. Department of Homeland Security
Maynard, Massachusetts
Damon B. Ford
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
02/07/2023
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 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). The servicing human resources office must submit a compliance report showing the actions taken within 30 days of the compliance action. The report must be submitted to OPM, Merit System Accountability and Compliance, Agency Compliance and Evaluation, Washington, DC, office.
Introduction
On January 23, 2022, OPM’s Merit System Accountability and Compliance received an FLSA claim from the claimant requesting to “correctly classify [his] position descriptions, deployed and non-deployed, as non-exempt and provide back pay for all deployments using the willful violation criteria of a three year statute of limitations beginning May 21, 2016.” The claimant is an Electronics Technician, GS-0856-12, with the Mobile Emergency Response Support (MERS) Detachment, Disaster Emergency Communications (DEC) Division, Response Directorate, Office of Response and Recovery, Federal Emergency Management Agency (FEMA), U.S. Department of Homeland Security in Maynard, Massachusetts. We received the agency administrative report (AAR) on February 24, 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 makes various statements about his agency’s FLSA exemption status review (or lack thereof) throughout the last few years. In adjudicating this claim, our only concern is to make our own independent decision about the exemption status of the claimant’s position during the period of the claim. We must make that decision by comparing the facts in the case to criteria in FLSA and other Federal regulations and guidelines. Therefore, we have considered the claimant’s statements only insofar as they are relevant to making that comparison.
The claimant was an active duty military member with the U.S. Department of the Navy for 20 years during which time he acquired knowledge and technical work experience in the field of electronics and electronic communication systems. Immediately after that in 2010, he began employment with FEMA as an Electronics Technician, GS-0856-11, and a year later he was promoted to the GS-12 level. The agency initially designated his permanent position (herein referred to as his steady-state position) as FLSA exempt based on meeting the learned professional exemption criteria. During emergency situations the claimant is deployed as an Emergency Management Specialist, IM-0089-01, with organizational title of DEC MERS Specialist under position description (PD) number RES238, designated by his agency as a nonexempt position.
The claimant states that based on an OPM decision changing the exemption status of a similarly situated employee’s steady-state position from exempt to nonexempt, on December 9, 2021, he filed an FLSA claim with the Office of the Chief Component Human Capital Officer (OCCHCO) FEMA classification. However, OCCHCO responded to his claim stating that he was not officially assigned to the same PD involved in that case, and that his position was listed correctly as exempt based on the primary duties listed in his PD. The claimant then filed an FLSA claim with OPM. Subsequently, in an email dated May 10, 2022, the claimant made OPM aware that the agency had changed the FLSA designation of his steady-state position to nonexempt. The record shows that effective February 27, 2022, the agency changed the FLSA designation of the claimant’s steady-state position from exempt (i.e., not covered) to nonexempt (i.e., covered) by the overtime provisions of the FLSA. However, the claimant states that his agency has neither paid him for the overtime worked prior to February 27, 2022, nor provided him with information on how to file a claim for FLSA overtime pay due to him. Therefore, his claim to OPM remains for back pay of 1653 hours of FLSA overtime worked from 2016 to 2021, under both steady-state and emergency situations which he believes should have been paid to him under the provisions of the FLSA but instead was paid straight time. [1] Furthermore, the claimant believes his agency willfully violated the FLSA because it incorrectly designated his position as FLSA exempt since he was hired in 2010 and did not treat it in a manner consistent with the OPM decision involving a similar situated position. Therefore, the claimant believes he is entitled to an additional year in establishing the period of possible back pay.
PD inaccuracies
As discussed in 5 CFR 551.202(e), while established PDs 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. Our review disclosed (and as confirmed by the claimant and his immediate supervisor) that the claimant’s steady-state PD number B1425 is not completely accurate in that it describes duties the claimant does not perform involving design and development work which is often associated with engineering work. For instance, the PD states the incumbent of the position “[d]evelops unique telecommunications engineering designs tailored to meet the specific requirements of each customer….” It also states the incumbent of the position “[d]esigns and develops new systems as mission requirements dictate.” However, systems are not designed or redesigned within the claimant’s organization. Rather, the claimant selects off-the-shelf systems and equipment to meet system requirements of each customer, which do not require him to devise “new approaches to circuit/system design and configuration.” Furthermore, because the claimant uses off-the-shelf systems, his position neither requires him to serve as the “Detachment spokesman in such activities as witnessing equipment tests and recommends acceptance of initial production models at manufacturer’s plants,” nor recommend important “system modifications to meet FEMA’s requirements.” The claimant is not responsible for “complete fabrication and integration of new electronic communication equipment into existing systems as well as new systems.” Rather, he replaces and/or installs ancillary equipment into existing systems. The claimant is also not responsible for “directing assemblage of initial test data and design plans to be utilized throughout the life span of the new or modified system,” or for planning and coordinating “feasibility studies concerning proposed modifications to telecommunication systems, equipment, or components.”
The PD also overstates other duties performed by the claimant. For instance, it states the incumbent of the position “engineers site layouts” to meet customer’s telecommunications support requirements. Instead, the claimant makes recommendations to meet customer requirements for placement and installation of equipment and systems at the assigned site. The PD states the position “develops criteria for the repair, modification, maintenance, and testing of state-of-the art mobile communications equipment,” and for “maintenance test and repairs procedures, plans, and logistic support requirements for RF electronic telecommunications equipment and systems.” Instead, the claimant uses clearly defined guidance, methods, and processes to perform his work such as those found in manufacturers’ data, specifications, and in various operational and technical manuals for RF communications equipment. His responsibilities are limited to drafting and updating SOPs for repairs, installation and testing of electronic communication equipment. The PD states the incumbent uses methods such as “calculating path profiles” to make frequency change recommendations.” However, the claimant’s work does not require him to calculate path profiles, but he may request path profiles from manufacturers as necessary. He also does not assist “manufacturers in their propagation of data and writes specifications when requested by his supervisor,” or “obtains agreement through negotiation where disagreement prevails.” The claimant only consults with manufacturers when seeking assistance for the repair of electronic communication equipment and systems. Our review disclosed that the claimant neither performs “system engineering” nor “coordinates assignments with engineers” to perform the work of his positions.
Position Information
FEMA’s DEC Division provides disaster emergency communications through six geographically dispersed MERS detachments throughout the country. MERS detachments provide mobile telecommunications, life support, logistics, operational support and power generation during presidentially declared emergencies and disasters required for the on-site management of disaster response activities. MERS’ primary function in disaster response operations involves communications support. It delivers voice, data, and video services in support of the response officials. It employs satellite, land mobile radio, and line-of-sight transmission systems to deliver communications support for response and recovery operations
The primary duty of the claimant’s steady-state position is to maintain mobile radio communication systems and equipment at a high level of readiness for rapid response to natural disasters and other all-hazards mission assignments. This includes meeting customer’s telecommunications support requirements by selecting the proper type and amount of equipment (including proper antenna selection) required to provide the type of communication support request by the customer. He considers factors such as available space, environmental factors, and the potential for radio frequency (RF) interference problems to make recommendations on the set-up and placement of equipment and systems in the designated site to meet customer requirements. He makes basic cost estimates and reviews quotes to make recommendations for procurement of off-the-shelf systems and equipment to accomplish assigned tasks.
The claimant tests equipment using test, measurement, and diagnostic equipment to analyze systems and equipment, e.g., testing a radio antenna using a spectrum analyzer, power meter and multimeter. He evaluates system performance during operation and adjusts system equipment when deficiencies are noted. The claimant may also update existing systems with new electronic equipment, e.g., integrating new antennas to existing satellite radio systems. He troubleshoots and repairs equipment/subsystems, e.g., replacing fuses and fixing cables with bad connectors. He also performs a variety of installations including video, television and/or Direct TV in Mobile Emergency Operations Vehicles (MEOVs). As requested, the claimant provides on-the-job training to lower-graded electronics technicians in his unit.
The MERS Specialist work performed by the claimant during deployment for FEMA emergency situations is substantively the same as his previously described steady-state work. While in deployment sites the work focuses on setting-up systems and equipment, performing installations of voice, video, and data devices, and point-to-point connectivity using tactical RF devices. The claimant also prepares MEOVs in accordance with MERS detachment checklists and standard operating procedures (SOP) including shutdown of MEOVs and other communication and incident response vehicles. Furthermore, the claimant identifies appropriate information needed for transition of duties prior to leaving the deployment site and provides after action reports to management at the conclusion of his assignments. The claimant exercises independence in planning and executing his work in both his steady-state and MERS Specialist positions. The claimant’s supervisor does not review the technical methods or approaches used by him to perform his work.
In reaching our FLSA decision, we have carefully reviewed all information furnished by the claimant and the agency, including information obtained from separate telephone interviews with the claimant and his supervisor (Telecommunications Manager (RF), GS-0391-13).
Evaluation
Period of the claim
As provided for in 5 CFR 551.702(b), all FLSA pay claims filed after June 30, 1994, are subject to a two-year statute of limitations (three years for willful violation). A claimant 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. The record shows that in an email dated December 9, 2021, the claimant filed an FLSA claim with the OCCHCO FEMA classification, confirmed to be the appropriate office for filing FLSA claims. To confirm the claimant’s FLSA claim was made according to agency policies, OPM requested the agency’s established FLSA claim process policy and/or procedures (i.e., FLSA filing requirements for FEMA employees). However, the agency failed to respond to OPM’s request. Therefore, absent any policy and/or procedure to indicate otherwise, we consider December 9, 2021, the date the agency received a formal claim from the claimant. The record also shows the OCCHCO, FEMA classification responded to the claimant’s December 9, 2021 claim in an email dated January 4, 2022. Therefore, we find the claim was preserved effective January 4, 2022, when it was received by the agency.
As an initial matter, the claimant contends the agency willfully violated the FLSA and believes he is entitled to an additional year in establishing the period of possible back pay. Therefore, we must determine if the claim period should be extended to three years based on whether the agency’s actions met willful violation criteria. “Willful violation” is defined in 5 CFR 551.104 as follows:
Willful violation means a violation in circumstances where the agency knew that its conduct was prohibited by the Act or showed reckless disregard of the requirements of the Act. All of the facts and circumstances surrounding the violation are taken into account in determining whether a violation was willful.
There is no question that the agency initially erred in the claimant’s exempt status determination. However, to prove willful violation, there must be evidence that either the agency knew that its conduct was prohibited or showed reckless disregard of the requirements of the FLSA. We find the agency erred in making the exemption determination by relying on a PD we found to be inaccurate (but that agency management certified as accurate) which described work comparable to professional electronics engineering, thus requiring application of advanced knowledge and the consistent exercise of discretion and judgment. As addressed in our discussion below, this is not the case. However, error alone does not reach the level of “willful violation” as defined in the regulations. Therefore, we find that the agency’s actions do not meet the criteria for willful violation as defined in 5 CFR 551.104. Accordingly, because the claimant’s claim was received by the agency on January 4, 2022, it is subject to a two-year statute of limitations commencing on January 4, 2020, and any time prior to that date falls outside the claim period.
Sections 551.201 and 551.202 of title 5 CFR require an employing agency to designate an employee FLSA exempt only when the agency correctly determines that the employee meets one or more of the exemption criteria. In all exemption determinations, the agency must observe the following principles: (a) Each employee is presumed to be FLSA nonexempt unless the employing agency correctly determines that the employee clearly meets the requirements of one or more of the exemptions; (b) Exemption criteria must be narrowly construed to apply only to those employees who are clearly within the terms and spirit of the exemption; (c) The burden of proof rests with the agency that asserts the exemption; (d) An employee who clearly meets the criteria for exemption must be designated as FLSA exempt. 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, administrative and professional. Learned professionals, creative professionals, and computer employees are described in 5 CFR 551.208, 551.209, and 551.210, respectively.
To be exempt from the overtime provisions of the FLSA, the employee must meet the executive, administrative, or professional exemption criteria in 5 CFR sections 551.205 through 551.207. The agency originally determined that the claimant’s duties were exempt from the overtime pay provision of the FLSA based on the learned professional exemption criteria. However, as previously discussed, on February 27, 2022, it corrected the claimant’s exemption designation from exempt to nonexempt. The agency provided a “Fair Labor Standards Act (FLSA) Recommendation Worksheet,” dated January 20, 2022, indicating an FLSA determination of nonexempt, but it neither provided a corrected PD nor a narrative analysis to support the change in its determination. To confirm the agency’s conclusion, we have applied the criteria for executive exemption (5 CFR 551.205), administrative exemption (5 CFR 551.206), and professional and learned professional exemptions (5 CFR 551.207 and 551.208) provided in OPM’s FLSA regulations to the claimant’s duties.
Executive exemption criteria
The current regulations in 5 CFR 551.205 describe the executive exemption criteria, in relevant part, as follows:
(a) an executive employee is defined as 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.
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 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 does not perform any of the activities listed. Although, at times, the claimant may be assigned as a team lead during special projects he does not customarily and regularly direct the work of two or more employees as defined for purposes of the FLSA, and does not have the authority to hire or fire other employees or make suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees.
Based on the preceding analysis, the claimant’s steady-state position does not meet the executive exemption criteria.
Administrative exemption criteria
The current regulations in 5 CFR 551.206 describe 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;
(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 claimant’s work does not meet the administrative exemption criteria. While the claimant performs office or non-manual work, his work is not an extension of the agency’s management process or general business operations and he does not exercise discretion and independent judgment with respect to matters of significance as described in the ten factors of the regulation summarized above. For example, he has no authority to formulate, affect, interpret, or implement management policies at his level. Work that significantly affects the formulation or execution of policies or practices generally refers to employees who either actually make policy or develop proposals acted on by others. The claimant neither makes nor implements policies or practices. The claimant does not carry out major assignments in conducting the operations of the organization. The claimant’s work is related to one component of a major assignment within an organization that covers other types of technical work in support of its communications response operations. Therefore, he carries out only very specific, short-term assignments, rather than major ones, which do not affect the organization’s operations to a substantial degree. Furthermore, the claimant he has no authority to commit his employer in matters having significant financial impact, cannot waive or deviate from established agency policies or procedures, and is not authorized to negotiate and bind his organization on significant matters. These responsibilities are carried out by higher-echelon positions in his organization.
Furthermore, although the claimant is very knowledgeable and experienced in the electronics field, he is not responsible for providing consultation and expert advice to FEMA management on matters relating to the management or general business operations. The claimant is not involved in the planning of long or short-term organizational objectives, or investigating and resolving matters of significance on behalf of management. The claimant is not authorized to represent the organization in handling complaints, arbitrating disputes, or resolving grievances. These matters are within the authority and responsibility of MERS supervisors and managers.
Although the claimant works independently, free of immediate supervision and direction, in contrast to the application of discretion and independent judgment, while he must isolate the causes of equipment and system failures, his work is performed within the context of standardized operation and technical manuals and instructions provided by the manufacturer which specifically govern his actions. These documents outline procedures to be used given a particular equipment problem, but if the claimant is unable to resolve the issue he contacts the manufacturer for assistance. The decisions he makes are not significant within the meaning of the regulation in that they affect the procedural details of his work (e.g., limited to repair, installation, maintenance, operation and testing), and primarily focus on determining how best to install, fix, maintain or program a given system based on specific criteria and instructions issued by the manufacturer.
Based on the preceding analysis, the claimant’s steady-state position does not meet the administrative exemption criteria.
Professional exemption criteria
The current regulations 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) states that (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.
5 CFR 551.208(f) (Engineering) indicates engineers generally meet the duties requirements for the learned professional exemption. Professional engineering work typically involves the application of a knowledge of such engineering fundamentals as the strength and strain analysis of engineering materials and structures, the physical and chemical characteristics of engineering materials such as elastic limits, maximum units stresses, coefficients of expansion, workability, hardness, tendency to fatigue, resistance to corrosion, engineering adaptability, and engineering methods of construction and processing. Exempt professional engineering work includes equivalent work performed in any of the specialized branches of engineering (e.g., electrical, mechanical, or materials engineering). On unusual occasions, engineering technicians performing work comparable to that performed by professional engineers on the basis of advanced knowledge may also be exempt. In such instances, the employee actually is performing the work of an occupation that generally requires a specialized academic degree and is performing substantially the same work as the degreed employee, but has gained the same advanced knowledge through a combination of work experience and intellectual instruction which has provided both theoretical and practical knowledge of the specialty, including knowledge of related disciplines and of new developments in the field.
The claimant does not meet the professional exemption criteria in 5 CFR 551.207 because his primary duties do not encompass performance of work requiring knowledge of an advanced type in a field of science or learning (i.e., engineering) customarily acquired by a lengthy course of specialized intellectual instruction. The claimant applies practical knowledge of a wide range of technical methods, principles, requirements, work techniques, and practices in the area of electronics to perform installation, maintenance, operation, repair and testing of electronic equipment and systems. His work neither requires theoretical knowledge of the electronics specialty nor knowledge of this and other disciplines, and new developments in the field (e.g., electronics engineering), as required by the professional exemption criteria. Moreover, OPM’s Handbook of Occupational Groups and Families does not identify the 856 Electronics Technician Series as a professional series.
The claimant does not meet the learned professional exemption criteria in 5 CFR 551.208. Not only does the claimant’s work not require advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction, it also does not meet the three elements described under the learned professional criteria. His work does not meet the first element which describes application of advanced knowledge, because it is not predominantly intellectual in character requiring the consistent exercise of discretion and judgment, as distinguished from performing routine mental, manual, mechanical or physical work. The claimant repairs, tests, troubleshoots, maintains, and installs a variety of off-the-shelf electronic equipment and interrelated systems in support of the agency’s communications response operations. In doing so he applies routine mental and manual skills, and is guided by highly specific manufacturers’ instructions and operating manuals. Because the equipment is proprietary to the manufacturer, the degree of analysis and repair is limited to performing well-accepted electronics tests, e.g., resonance, voltage, amperage, and carrying out standard repairs and installations, e.g., fixing fuses, replacing cables, and installing video, voice and data devices. Such tasks do not require the exercise of discretion and judgment which would be needed, for example, to overhaul or extensively modify or change a major electronic component or operating system.
The claimant’s work does not meet the second element described under the learned professional criteria. In addition to not requiring advanced knowledge, he is not working in a traditional field of science or learning (i.e., engineering) which has a recognized professional status. Instead, he is applying knowledge of a fairly advanced type of a skilled trade, which the regulation states is not construed as being in a field of science or learning.
The claimant’s work does not meet the third element of the learned professional criteria under 5 CFR 551.208(a) because he has not acquired his knowledge through attendance in a prolonged course of specialized academic training as a standard prerequisite for entrance into a traditional profession (thus possessing an appropriate academic degree). The claimant’s work does not meet the criteria discussed in 5 CFR 551.208(f) Engineering because he is not operating at substantially the same knowledge level and performing substantially the same work as a degreed professional employee, having acquired both theoretical and practical knowledge through a combination of work experience and intellectual instruction. The claimant performs routine mental, manual, and technical electronics work not remotely comparable to that performed by professional electronics engineers, GS-0855. Rather, as a military member of the U.S. Department of the Navy, the claimant completed Technician “A” school with subjects such as basic electricity, electronics, and electronic communication systems (e.g., satellites, radios and global positioning systems). Therefore, the knowledge and skills required to perform his work were acquired through a combination of specialized technical course work, on-the-job training and experience, rather than by advanced specialized academic study and intellectual instruction in theoretical and practical knowledge of the electronics engineering field.
Based on the preceding analysis, the claimant’s position does not meet the professional or learned professional exemption criteria.
Effect of performing different work or duties for a temporary period of time on FLSA exemption status.
As described in 5 CFR 551.211(f)(1), the criteria for the exemption of work performed by employees under emergency situations, in relevant part, is as follows:
(f) Notwithstanding any other provision of this section, and regardless of an employee’s grade or equivalent 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) A nonexempt employee remains nonexempt whether the employee performs nonexempt work or exempt work during the emergency.
Decision on FLSA Coverage
The claimant’s work does not meet the executive, administrative, or professional exemption (including the learned professional) criteria. 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 rate. The claim was received by his agency on January 4, 2022, and the claimant can receive back pay for two years prior to that date. We find no indication of willful violation by the agency. 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.
The claimant provided the number of overtime hours worked in a given period. The agency also provided Leave and Earning Statements 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 title 5 overtime pay already paid, 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.
[1] The record contains information submitted by the claimant indicating the number of overtime hours he worked during certain pay periods from 2016 to 2021.