Washington, DC

U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code

---

Linda Kazinetz
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


05/30/2017

---

Date

Introduction

On May 9, 2012, the U.S. Office of Personnel Management (OPM) received a letter dated May 9, 2012, from the Law Offices of Bernstein & Lipsett, P.C. (B & L), the claimant’s duly appointed representative, concerning a Fair Labor Standards Act (FLSA) claim they had initially filed on the claimant’s behalf with the General Accounting Office (GAO), now the U.S. Government Accountability Office, on March 11, 1994, and subsequently with OPM on or about May 7, 1999, challenging his exemption status under the FLSA when he was employed as a Criminal Investigator, GS-1811, at the GS-12 and 13 levels with the Office of the Resident Agent-in-Charge (RAC), Office of Enforcement, U.S. Customs Service (USCS), now integrated into the Department of Homeland Security (DHS), in Lafayette, Louisiana.  The claimant was a plaintiff in a lawsuit filed in the U.S. Court of Federal Claims at approximately the same time the administrative claim was filed with GAO.  Based on information provided by B & L, the claimant was awarded back pay under a settlement agreement for the pay period ending March 21, 1992, to the pay period ending October 29, 1994, subject to the two-year statute of limitations for FLSA claims under 29 United States Code (U.S.C.) 255(a).

B & L has requested OPM adjudicate the administrative claim filed with OPM and asserts that, because the claimant served in the military during the Gulf War, the statute of limitations applicable to this claim is the five-year statute of limitations under 31 U.S.C. 3702(b)(2) rather than the two-year statute of limitations (three years for willful violations) applicable to FLSA administrative claims filed under the Barring Act.  See 73 Comp. Gen 157 (May 23, 1994); 31 U.S.C. 3702(b); 29 U.S.C. 255(a).  B & L states the claimant was called to active duty with the United States Army Reserve “from approximately August 27, 1990 to July 7, 1991” in connection with Operation Desert Shield/Storm and, citing the provisions of 31 U.S.C. 3702(b)(2), asserts: “[H]e is entitled to retroactive back pay and interest… for the period he was employed prior to the commencement of the Gulf War on August 2, 1990, in addition to the period he was employed by Customs after the commencement of the Gulf War, up to the date he recovered under previous FLSA settlements.  This period includes April 27, 1986 to March 7, 1992, less Mr. Black’s active duty military service time, for which he does not seek recovery.”[1]

In reaching our FLSA claim decision, we have carefully reviewed all information furnished by the claimant’s representative and the agency, including information obtained from a telephonic interview with the claimant, who retired from Federal civilian service on December 30, 2006.  We also interviewed by telephone a former coworker (now retired) who worked with the claimant during part of the claim period.

Background

We previously accepted and decided six similar claims under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, U.S.C., which we denied as time barred.  Subsequently, claimant’s representative brought suit under the Administrative Procedure Act (5 U.S.C. 551 et seq., and 701 et seq.) in the United States District Court for the District of Columbia, alleging that OPM wrongfully applied a two-year statute of limitations in denying their administrative claims for unpaid FLSA overtime pay.  Armstrong v. Archuleta, 77 F.Supp.3d 9 (December 30, 2014).  In relevant part, the court stated in its opinion:

All Plaintiffs are deemed to have timely filed their claims as of the date of their filings with the Claims Court.  As a result, Plaintiffs can recover for the entire claim period under the five-year statute of limitations- that is, for all claims that accrued within five years before the Gulf War commenced on August 2, 1990—minus monies paid under their DOJ Settlements.

***************

[T]he case is remanded to OPM to adjudicate and process damages in accordance with FLSA and other applicable laws, and Plaintiffs’ respective employing agencies are directed to compensate them in accordance with OPM’s determinations.

Consistent with the holding in the Armstrong case, we will apply the five-year statute of limitations and corrective methodology (subtracting monies already received under prior settlements or judgments) to the claims of similarly-situated claimants we find to be FLSA non-exempt and potentially due FLSA overtime pay.

Analysis

Under the provisions of 5 CFR 551.706, OPM determines the facts necessary to adjudicate a claim.  Applying the court’s mandate to determine whether the claimant is owed overtime pay under the FLSA, we must first determine whether the work performed during the claim period is exempt or nonexempt from the overtime pay provisions of the FLSA.  On September 29, 2015, in response to the aforementioned court decision, OPM requested an agency administrative report (AAR) from DHS regarding this FLSA claim.  By letter dated October 28, 2016, DHS advised OPM that during the claim period, GS-1811 criminal investigators (“special agents”) were designated FLSA nonexempt at the GS-5 and GS-7 grade levels and FLSA exempt at the GS-9 and above levels.  Additionally, DHS described the major duties and responsibilities of special agents at the GS-9, 11, and 12 grade levels as including initiating, planning, and conducting criminal and civil investigations; preparing detailed written investigative reports concerning case development and disposition; and planning, conducting, and coordinating in-depth criminal and civil investigations.  However, the agency advised OPM based on their fact-finding that:

…DHS believes that the GS-9, GS-11, and GS-12 criminal investigators should be considered non-exempt.  At these grade levels, an investigator does not serve as an “advisor, assistant, or representative of management, or a specialist in a management or general business function or supporting service.  5 C.F.R. § 551.205(a) (1984).  Nor do they “[s]ignificantly affect [] the formulation or execution of management policies or programs.”  Id. at § 551.205(a)(1). 

Based on careful review of the record, we concur with the agency’s determination and have not separately addressed the claimant’s GS-12 work in this decision.  The claimant is requesting compensation, less his active duty military service time,[2] for work performed while he was a Criminal Investigator, GS-1811-12, with USCS from May 24, 1987, to February 10, 1990; and from May 12, 1990, to February 23, 1991.  Therefore, USCS would have been required to compensate the claimant under the overtime provisions of Subpart E of Part 551 of 5 CFR for work performed within the claim period; i.e., within five years before the commencement of the Gulf War on August 2, 1990, in addition to the period he was employed by USCS after the commencement of the Gulf War.  In this case, because the periods listed above fall outside the time covered by the claimant’s DOJ settlement agreement, they are fully covered. 

The claimant is also requesting compensation for work performed while he was temporarily promoted to a Supervisory Criminal Investigator, GS-1811-13, position with USCS from February 11, 1990, to May 11, 1990, and while he occupied Criminal Investigator, GS-1811-13, positions from September 11, 1990, to January 12, 1991,[3] and from February 24, 1991, to March 7, 1992.  The agency references a standard GS-13 position description (PD) (#T046034) used at the time of this claim to describe his work.[4]  The agency states these Senior Special Agents  were expected to take on a leadership role in coordinating and directing investigations, providing training, and advising and representing USCS management on “critical law enforcement programs involving highly important functions that influence accomplishment of objectives of the entire Customs Service” as described in the PD.  The agency states that “[i]f the Senior Special Agents’ position description is accurate, they could potentially qualify as exempt administrative employees.”  However, the agency indicates that “[a]lthough the duties described above would likely qualify as exempt work, the GS-1811-13 position description also includes a number of non-exempt duties.”  The agency notes these nonexempt duties include conducting “highly complex and sensitive criminal investigations.”  Given their assessment of the PD and the need to clarify the actual duties performed by GS-13 Senior Special Agent claimants, the agency defers to OPM to resolve their exemption status. 

Evaluation

Period of the claim

While we have not specifically adjudicated the claimant’s GS-12 criminal investigator work, the overall claim period and our analysis relevant to this FLSA decision covers both that period and the time he worked as a GS-13 nonsupervisory/supervisory criminal investigator covering May 24, 1987, to March 7, 1992. 

Position information

Criminal Investigator, GS-1811-13

During the claim period covering February 24, 1991 to March 7, 1992, the claimant was assigned as a Senior Special Agent to the position of Criminal Investigator, GS-1811-13, with the Office of the RAC, Lafayette, Louisiana, which covered central Louisiana.  For most of this time, the claimant initiated and conducted full-scale criminal investigations dealing primarily with the smuggling of illegal drugs into the U.S. from foreign countries (e.g., Columbia, Mexico), and investigated related money “laundering” activities carried out by smugglers to conceal the proceeds of drug sales.  Illegal drugs were principally smuggled into the U.S. using ground transportation and were initially stored in warehouses.  Subsequently, the drugs were either directly marketed or sold to major drug dealers for distribution and “retail” sale, sometimes amounting to one million dollars per month.  Because the sale of illegal drugs is a “cash” business, the drug smuggling and distribution operations the claimant investigated accumulated large sums of money which could not be directly deposited into legitimate banking or other financial institutions due to Federal laws governing the reporting of large cash deposits.  Consequently, drug dealers established a variety of legitimate businesses to divert and conceal their illegal earnings so profits could be legally deposited into licensed banks and other financial entities, e.g., stock brokerage firms.  Businesses used to “launder” money included night clubs, limousine services, real estate firms, cleaning establishments, trucking firms, etc.  As time permitted, the claimant also investigated cases concerning currency violations covering transfers of large sums of money between banking institutions by suspected illicit private parties or businesses, and cases involving fraudulent trans-shipping of commodities (e.g., overseas petroleum) originating from countries abroad covered by high U.S. tariffs, or those not permitted to directly ship to the U.S.  USCS had investigative responsibility for any materials coming into the U.S. through its borders. 

In performing criminal investigations, the claimant’s work involved interviewing witnesses and suspects, conducting lawful searches and seizures of illicit materials, securing and serving both administrative summons and court-issued search warrants, carrying out surveillance and wire-tapping, and arresting alleged violators.  He developed suspect profiles, inspected records and documents, and gathered evidence to demonstrate to the local Assistant U.S. Attorney that the elements of a crime had been committed.  He was sometimes called upon to testify in U.S. Court.  Knowledge required by the position included that of the laws, statutes, and regulations on which USCS enforcement authorities were based, and specific case law regarding seizures, civil rights, and preservation of evidence.  The claimant worked under the general direction and policy guidance of the RAC.  He developed and investigated cases from information initially provided by informants, bank officials, USCS inspectors located at U.S. borders, local law enforcement agencies, lead information forwarded from other USCS offices, and cases directly assigned by the RAC.  The claimant independently investigated his cases and provided periodic status reports to the RAC on case progress, and submitted comprehensive investigative reports to the RAC at the conclusion of each case.  These narrative reports tracked the entire investigation and contained multiple exhibits and attachments supporting factual determinations that a crime had been committed. 

Supervisory Criminal Investigator, GM-1811-13

From February 11, 1990, to May 11, 1990, the claimant received a temporary promotion to serve as an investigations unit supervisor (Supervisory Criminal Investigator, GM-1811-13) in the Investigations Group of the USCS Office of the Special Agent-In-Charge in New Orleans, Louisiana.  Other than a Notification of Personnel Action (SF-50) documenting this ninety-day temporary promotion, the agency provided no information regarding the duties of the position.  According to the claimant, he was temporarily assigned to the position pending arrival of the permanent supervisor from another USCS office.  The claimant stated that given his expertise in doing drug smuggling and money “laundering” cases in the Lafayette RAC office, the sole purpose of his assignment was to oversee, train, and directly supervise a group of seven or eight GS-12 criminal investigators performing investigations of such cases in a geographic area designated by USCS as a High Intensity Drug Trafficking Area.  The claimant’s duties included reviewing, screening, and assigning cases to investigators depending on their individual levels of experience; directing and providing guidance to investigators on working their assigned cases; obtaining technical resources for particular investigations; coordinating with other Federal and local law enforcement agencies involved in drug task forces; meeting regularly with employees to discuss the status and progress of assigned cases; reviewing preliminary and final reports of investigation prepared by investigators to ensure completeness and the presence of all supporting evidence; providing input to his supervisor, the GS-14 Investigations Group Manager, on the status of the unit’s investigations and employee performance; and approving employee leave. 

Evaluation of FLSA Coverage

Under the provisions of 5 CFR 551.706, OPM determines the facts necessary to adjudicate a claim.  To determine whether the claimant is owed overtime pay under the FLSA for the periods in which he served as a GS-13 nonsupervisory and supervisory criminal investigator, we must first determine whether the work performed during the claim period is exempt or nonexempt from the overtime pay provisions of the FLSA.  Sections 551.201 and 551.202 of title 5, CFR, require an employing agency to designate an employee FLSA exempt only when the agency correctly determines that the employee meets one or more of the exemption criteria.  In all exemption determinations, the agency must observe the following principles: 

(a) Each employee is presumed to be FLSA nonexempt.

(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. 

Because the claim period covers portions of 1990, 1991, and 1992, we must apply the FLSA regulations of 5 CFR Part 551 (1984) in effect during the period of the claim.  However, in response to a court decision, OPM amended these regulations in 1988 by eliminating the presumption that employees in positions classified at GS-11 and above were exempt from the overtime pay provisions of the FLSA, and changed the criteria for determining whether a Federal employee was an executive under the FLSA.  See 53 Fed. Reg. 1739-01 (January 22, 1988).  The claimant believes his position should have been designated as non-exempt from the overtime pay provisions of the FLSA and thus not covered by the executive, administrative, or professional exemptions as detailed in 5 CFR 551.204, 5 CFR 551.205, and 5 CFR 551.206 of those regulations. 

The agency indicates that due to the age of the claim, it could provide only limited information regarding the claimant’s employment with USCS during the claim period.  In its October 28, 2016, letter to OPM, the agency conceded that based on comparison to the administrative exemption criteria in effect during the claim period, the claimant’s GS-12 criminal investigator position should be designated as FLSA nonexempt.  However, the agency made no final determination on whether the claimant’s GS-13 criminal investigator position met the administrative exemption criteria.  The agency did not address the claimant’s work or FLSA designation during the time of his temporary promotion to a supervisory GS-13 criminal investigator position.  Based on careful review of the record and the claimant’s assigned duties and responsibilities during the claim period, we conclude the claimant’s position did not meet the professional exemption criteria, and the claimant does not disagree.  However, we have evaluated his position as a nonsupervisory GS-13 criminal investigator against the administrative exemption criteria, and his temporary position as a GS-13 supervisory criminal investigator against both the executive (as amended) and administrative exemption criteria in effect during the time of the claim.  

Criminal Investigator, GS-1811-13

Administrative Exemption Criteria

The regulation under 5 CFR 551.205 describes the administrative exemption criteria as follows: 

An administrative employee is an advisor, assistant, or representative of management, or a specialist in a management or general business function or supporting service, who meets all of the following criteria: 

(a)The employee’s primary duty consists of work that:  (1) significantly affects the formulation or execution of management policies or programs; or (2) involves general management or business functions or supporting services of substantial importance to the organization serviced; or (3) involves substantial participation in the executive or administrative functions of a management official.

(b) The employee performs office or other predominantly non-manual work which is: 

(1) intellectual and varied in nature; or (2) of a specialized or technical nature that requires considerable special training, experience, and knowledge. 

(c) The employee must frequently exercise discretion and independent judgment, under only general supervision, in performing the normal day-to-day work. 

Although no longer in effect, the definitions of terms used in the FLSA exemption criteria as contained in the Attachment to Federal Personnel Manual (FPM) Letter 551-7, dated July 1, 1975, provide useful guidance in applying in particular the administrative exemption criteria in 5 CFR 551.205 discussed above.  The meaning of terms relevant to the criteria follows.

(a) Primary duty.  As a general rule, the primary duty is that which constitutes the major part (over 50%) of the employee’s work. 

(b) Formulation or execution of management policies or programs.  Management policies and programs range from broad national goals that are expressed in statutes or Executive Orders to specific objectives of a small field office.  Employees may actually make policy decisions or participate indirectly, through developing proposals that are acted on by others.  Employees who significantly affect the execution of management policies or programs typically are those whose work involves obtaining compliance with such policies by other individuals or organizations, within or outside of the Federal Government, or making significant determinations in furtherance of the operation of programs and accomplishment of program objectives.  Administrative employees engaged in formulation or execution of management policies or programs typically perform one or more phases of program management (i.e., planning, developing, promoting, coordinating, controlling, or evaluating operating programs of the employing organization or of other organizations subject to regulation or other controls).  Some of these employees are classified in occupations that reflect these functions (e.g., program analyst) but many are classified in subject matter occupations. 

(c) General management, business, or supporting services.  This element brings into the administrative category a wide variety of specialists who provide general management, business, or other supporting services as distinguished from production functions.  Administrative employees in this category provide support to line managers by:  (1) providing expert advice in specialized subject matter fields, such as that provided by management consultants or systems analysts; (2) assuming facets of the overall management function, such as safety management, personnel management, or budgeting and financial management; (3) representing management in such business functions as negotiating and administering contracts, determining acceptability of goods or services, or authorizing payments; or (4) providing supporting services, such as automated data processing, communications, or procurement and distribution of supplies.  To warrant exemption, each employee’s work must involve substantial discretion on matters of enough importance that the employee’s actions and decisions have a noticeable impact on the effectiveness of the organization advised, represented, or serviced. 

(d) Participation in the functions of a management official.  This element includes those employees (variously identified as secretaries, administrative or executive assistants, aids, etc.) who participate in portions of the managerial or administrative functions of a supervisor whose scope of responsibility precludes personally attending to all aspects of the work.  To support exemption, such assistants must be delegated and exercise substantial authority to act for the supervisor in the absence of specific instructions or procedures.  Typically these employees do not have technical knowledge of the substantive work under the supervisor’s jurisdiction.  Their primary knowledge is of administrative procedures, organizational relationships, and the policies, plans, interests and views of the supervisor.

(e) Work of an intellectual nature.  Work requiring general intellectual abilities, such as perceptiveness, analytical reasoning, perspective, and judgment applied to a variety of subject matter fields, or work involving mental processes which involve substantial judgment based on considering, selecting, adapting, and applying principles to numerous variables.  The employee cannot rely on standardized application of established procedures or precedents, but must recognize and evaluate the effect of a continual variety of conditions or requirements in selecting, adapting, or innovating techniques and procedures, interpreting findings, and selecting and recommending the “best” alternative from among a broad range of possible actions. 

(f) Work of a specialized or technical nature.  Work which requires substantial specialized knowledge of a complex subject matter and of the principles, techniques, practices, and procedures associated with that subject matter field. This knowledge characteristically is acquired through considerable on-the-job training and experience in the specialized subject matter field, as distinguished from professional knowledge characteristically acquired through specialized academic education. 

(g) Discretion and independent judgment.  The exercise of discretion and independent judgment involves:  (1) comparing and evaluating possible courses of conduct, and (2) interpreting results or implications, and independently taking action or making a decision after considering the various possibilities.  However, firm commitments or final decisions are not necessary to support exemption.  The “decisions” made as a result of the exercise of independent judgment may consist of recommendations for action rather than the actual taking of action.  The fact that an employee’s decisions are subject to review, and that on occasion the decisions are revised or reversed after review, does not mean that the employee is not exercising discretion and independent judgment of the level required for exemption. 

The FPM letter lists three elements involved in the evaluation of discretion and independent judgment:  (1) The work must involve sufficient variables as to regularly require discretion and judgment in determining the approaches and techniques to be used, and in evaluating results.  This precludes exempting employees who perform work primarily requiring skill and applying standardized techniques or knowledge of established procedures, precedents, or other guidelines which specifically govern the employee’s action.  (2) The employee must have authority to make such considerations during the course of assignment.  This precludes exempting trainees who are in a line of work which requires discretion but who have not been given authority to decide discretionary matters independently.  (3) The decisions made independently must be significant.  Although this term is not so restrictive as to include only the kinds of decisions made by employees who formulate policies or exercise broad commitment authority, it does not extend to the kinds of decisions that affect only the procedural details of the employee’s own work, or to such matters as deciding whether a situation does or does not conform to clearly applicable criteria. 

The claimant’s work in doing criminal investigations did not meet paragraph (a) of the administrative exemption criteria.  His primary duty was not to serve as an advisor, assistant, or representative of agency management, or as a specialist in a management or general business function or supporting service.  As a criminal investigator, the claimant spent all of his time investigating criminal violations of various laws governing the smuggling of illegal drugs into the U.S., the “laundering” of money accumulated from the sale of illegal drugs, and laws concerning currency violations and fraudulent shipment of commodities into the U.S.  

The claimant did not meet the requirements of paragraph (a)(1) of the administrative exemption criteria.  Contrary to the agency’s assertion that GS-13 Special Agents advised management officials on “critical law enforcement programs involving highly important functions that influence accomplishment of objectives of the entire Customs Service,” we found the claimant’s primary duties did not significantly affect the formulation or execution of management policies or programs.  As a field office employee assigned to the Lafayette RAC office performing the line investigative work of the Office of Enforcement, USCS, he did not make policy decisions or participate indirectly through developing proposals that were acted on by others.  In addition, unlike administrative employees he did not perform any phases of program management such as planning, controlling, or evaluating operating programs. 

The claimant did not meet the requirements of paragraph (a)(2) of the administrative exemption criteria.  The claimant’s primary duties did not involve general management or business functions or supporting services of substantial importance to the organization serviced.  Rather, the claimant performed the line law enforcement work of the USCS.  His tasks did not include providing general management, business, or other supporting services to line managers.  He was not involved in systems analysis or general management support functions, e.g., safety management, personnel management, or budgeting and financial management.  The claimant did not represent agency management in negotiating and administering contracts for goods or services, and did not provide support services, e.g., automated data processing, communications, procurement and distribution of supplies. 

The claimant did not meet the requirements of paragraph (a)(3) of the administrative exemption criteria.  The claimant’s assignments did not involve substantial participation in the executive or administrative functions of a management official.  He did not act as a secretary or administrative assistant participating in portions of the managerial or administrative functions of a supervisor, with no requirement for technical knowledge of the substantive work under the supervisor’s jurisdiction.  Unlike such employees, the claimant independently performed the line work of the USCS’s Office of Enforcement in a field office requiring technical knowledge of substantive law enforcement and criminal investigative work relating to drug smuggling, money “laundering,” and other criminal violations of laws investigated by his agency.

Under paragraph (b)(1) of the administrative exemption criteria, the claimant performed office non-manual work which was intellectual and varied in nature.  In carrying out a variety of criminal investigations concerning violations of numerous laws and regulations administered by the USCS, the claimant applied perceptiveness, analytical reasoning, and judgment based on considering, selecting, adapting, and applying criminal investigative principles to numerous variables.  In doing so, he determined the best approach to each case and the investigative techniques needed to substantiate it (e.g., interviews of subjects and witnesses, review of business and bank records, developing and gathering the most supportable evidence for presentation to an Assistant U.S. Attorney) in order to identify the violation and assess the scope of the illegal activity.  While as a law enforcement agent he was required to abide by specific laws and USCS procedures governing the methods and collection of evidence and circumstances supporting seizures and arrests, in developing criminal cases he considered the effect of alternative investigative methods, adapting techniques and procedures as appropriate to the nature and extent of the violation. 

Under paragraph (b)(2) of the administrative exemption criteria, the claimant’s work as a senior criminal investigator was highly specialized and technical in nature, requiring considerable special training, experience, and knowledge.  In addition to a college degree in accounting, he possessed and regularly applied specialized knowledge of the complex subject-matter field of Federal criminal investigation, including the principles, techniques, practices, and investigative procedures associated with that field.  This knowledge was acquired by attending a three-month course at the Federal Law Enforcement Training Center, regular and extensive formal agency in-service training, and considerable on-the-job training and experience with the Office of Enforcement, USCS, and previous agencies, i.e., the Internal Revenue Service. 

Under paragraph (c) of the administrative exemption criteria, the claimant frequently exercised discretion and independent judgment in performing investigations covering central Louisiana, under only general supervision in carrying out his normal day-to-day work.  In doing so, he developed and expanded investigations, comparing and evaluating possible courses of action and necessary investigative techniques to efficiently utilize resources and achieve the goals of each investigation in proving that the elements of a crime had been committed.  He interpreted results gathered from investigative lead information (e.g., informers, witnesses, bank and business records) and made decisions on subsequent investigative steps after considering the various possibilities.  Since many of his cases involved numerous variables in terms of the investigative procedures needed because of the scope and complexity of the violation, he regularly applied discretion and judgment in determining approaches, techniques, and in evaluating results.  As a GS-13 criminal investigator, the claimant had full authority to make such determinations during the course of investigations, consulting with his supervisor (RAC) only on the status of cases or need for additional resources.  His investigative decisions were more significant than just making decisions on procedural details, or deciding whether a situation conformed to clearly applicable criteria.  Although he had to follow specific legal requirements for gathering and admitting evidence, requesting search warrants, and in some cases worked closely with the Assistant U.S. Attorney in preparing evidence for prosecution, he independently made decisions on significant matters affecting case development.  This included identifying the most effective investigative techniques and processes to build a thorough and comprehensive investigation supportable before a Grand Jury or Federal court. 

Although the claimant’s position met paragraphs (b) and (c) of the administrative exemption criteria, it failed to meet all of the required exemption criteria because it did not meet paragraph (a) of the criteria.  Therefore, we conclude the claimant did not meet the administrative exemption. 

Supervisory Criminal Investigator, GS-1811-13[5]

Executive Exemption Criteria

The regulation under 5 CFR 551.204 describes the executive exemption criteria as follows:

An “executive” employee is a supervisor, foreman, or manager who manages a Federal agency or any subdivision thereof (including the lowest recognized organizational unit with a continuing function) and regularly and customarily directs the work of at least three subordinate employees (excluding support employees) and meets all of the following criteria: 

(a) The employee’s primary duty consists of management or supervision.  The primary duty requirement is met if the employee: 

(1) Has authority to select or remove, and advance in pay and promote, or make any other status changes of subordinate employees, or has authority to suggest and recommend such actions with particular consideration given to these suggestions and recommendations; and

(2) Customarily and regularly exercises discretion and independent judgment in such activities as work planning and organization; work assignment, direction, review, and evaluation; and other aspects of management of subordinates, including personnel administration.

Similar to the executive criteria, the claimant’s primary duty was to function as a supervisor over an established unit within the office of the New Orleans SAC, and regularly and customarily direct the work of seven or eight GS-12 criminal investigators.  However, in contrast to paragraph (a)(1) of the executive exemption criteria, he had no authority to select or remove, and advance in pay and promote, or make any other status changes over his subordinate investigators.  Moreover, the claimant stated he only worked as a technical supervisor over the investigators and had no authority to suggest and recommend such actions.  He noted that authorities of this nature were retained by higher level managers in the office, i.e., Assistant SAC and Group Managers.  We were unable to confirm from any other sources whether the claimant held these authorities but, given the short duration and principal purpose of this temporary supervisory assignment, it is doubtful the agency delegated them to him during this period.  In addition, because the burden of proof lies with the agency to show that a position is FLSA exempt and the DHS has failed to provide any information indicating the claimant retained such authorities, we conclude the claimant did not hold any of them during this brief period. 

The claimant’s position met the requirements of paragraph (a)(2) of the executive exemption criteria.  He customarily and regularly exercised discretion and independent judgment in planning and organizing the work of his unit.  His extensive experience in investigating drug smuggling and money “laundering” cases enabled him to assign, direct, review, and evaluate the case work done by his subordinate GS-12 criminal investigators.  In managing his subordinates, the claimant also carried out other aspects of personnel administration including approving leave and providing input on employee performance to the Group Manager. 

Although the claimant’s position met paragraph (a)(2) of the executive exemption criteria, it failed to meet all of the required exemption criteria because it did not meet paragraph (a)(1) of the criteria, and thus all of the conditions described in 5 CFR 551.208(b).   

Administrative Exemption Criteria

As described under 5 CFR 551.205, an administrative employee is an advisor, assistant, or representative of management, or a specialist in a management or general business function or supporting service who meets all of the criteria listed under the administrative exemption previously addressed in this decision in our evaluation of the claimant’s nonsupervisory GS-13 criminal investigative work.  In applying the criteria to the position he held during his temporary promotion, we find he did not meet the primary duty requirements typical of administrative employees.  During his temporary promotion, his primary duty was to function solely as the direct technical supervisor over seven or eight GS-12 criminal investigators.  His work had none of the characteristics of administrative employees including:  (1) significantly affecting the formulation or execution of management policies or programs; or (2) involving general management or business functions or supporting services of substantial importance to the organization serviced; or (3) involving substantial participation in the executive or administrative functions of a management official.  Therefore, because the claimant’s work during his temporary promotion did not meet the primary duty test of the administrative exemption criteria, we find it was not covered by the criteria. 

Decision on FLSA Coverage

The claimant’s work was nonexempt (i.e., covered by the overtime pay provisions of the FLSA), and he is entitled to compensation for all overtime hours worked at the FLSA overtime rate for the period of the claim he was improperly designated as FLSA exempt, i.e., from May 24, 1987, to March 7, 1992, less his active duty military service time from August 27, 1990, to July 7, 1991.  Since his FLSA settlement was for a time period subsequent to March 7, 1992, it is not germane to the overtime pay calculations for the period of the claim covered by this decision.  The agency must follow the compliance requirements on page ii of this decision. 

The claimant must submit evidence showing the amount and extent of overtime that was performed as provided for in 5 CFR 551.706(a).  The agency will have the opportunity to review this evidence using any other sources of information available, including witnesses, before a determination is made as to whether the claimant is entitled to any back pay under the FLSA and any interest as required under 5 CFR Part 550, subpart H. [6]  Any petition for attorney’s fees and expenses must be submitted to the agency out of which this claim arose.  Should the claimant be determined to be entitled to back pay which the claimant believes to be incorrectly computed, the claimant may file a new FLSA claim with this office. 

Back to Top