Washington, DC

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

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Damon B. Ford
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


06/02/2023

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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 review whether the claimant has worked FLSA overtime in accordance with instructions in this decision, and if the claimant is determined to be entitled to back pay, the agency must pay the claimant the amount owed him plus interest as provided in 5 CFR 550.806. If the claimant believes the agency has incorrectly computed the amount owed him, he may file a new FLSA claim with the Office of Personnel Management (OPM), Agency Compliance and Evaluation (ACE), Washington, DC, office. The servicing human resources office must submit a compliance report containing a Standard Form 50 showing the personnel action taken.  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 report must be submitted to OPM, Merit System Accountability and Compliance, Agency Compliance and Evaluation, Washington, DC, office.

Introduction

On May 11, 2022, OPM received a FLSA claim from John T. McCann seeking the difference between the title 5 overtime (OT) he received and the FLSA OT rate he believes is owed him for the OT hours he worked during emergency deployments between September 2019, and November 2021. The claimant is assigned to the Mobile Emergency Response Support, Disaster Emergency Communications Division (DECD), 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 June 9, 2022 and accepted and decided this claim under section 4(f) of the FLSA of 1938, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).

Background and General Issues

On August 18, 2019, the claimant was assigned to his permanent Information Technology (IT) Specialist, GS-2210-12, position under standardized position description (PD) number PH7077. The agency designated his permanent position (herein referred to as his steady-state position) as FLSA exempt (i.e., not covered) based on meeting the computer employee exemption criteria. When deployed, the claimant is assigned as an Emergency Management Specialist, IM-0089-01, with an organizational title of Mobile Emergency Response Support (MERS) Specialist under PD number RES238. The agency designated this position as FLSA nonexempt (i.e., covered). He requests the difference between the title 5 OT he received and the FLSA OT rate for the 456.75 hours of OT worked between September 2019, and November 2021. The claimant states the OT was worked under emergency situations and should have been paid to him under the provisions of the FLSA because his emergency deployment position was designated as FLSA nonexempt. However, the claimant was instead paid straight time.

The claimant states that on December 22, 2021, he filed an FLSA claim with the Office of the Chief Component Human Capital Officer (OCCHCO) FEMA classification based on an OPM decision changing the exemption status of a similarly situated employee’s position from exempt to nonexempt. However, OCCHCO responded to his claim stating that he was not officially assigned to the same PD involved in that case. The claimant then filed this FLSA claim with OPM.

The claimant states his immediate supervisor is working with the OCCHCO FEMA classification to “review” the discrepancies in “our” PDs to “make us all FLSA Non-Exempt while deployed.” He requests OPM designate his steady-state position nonexempt and provide the back pay amount owed him when deployed as a MERS Specialist. The claimant also states there are some individuals whose steady-state position is FLSA nonexempt and will be “earning more income over others” performing the same steady-state work but are FLSA exempt. However, OPM must make its decision solely by comparing the claimant’s duties and responsibilities to FLSA regulations and guidelines. Since comparison to Federal regulations is the exclusive method for making exemption decisions, we cannot compare the claimant’s position to others, which may or may not be properly nonexempt, as a basis for deciding a claim.

Position Information

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 and found that some of the duties described in the claimant’s steady-state PD were incorrect, not performed, or overstated. For example, the PD states the claimant is responsible for designing, installing, integrating, managing, monitoring, maintaining, operating, and troubleshooting all network hardware and software that support the telecommunications compatibilities during deployed disaster support activities and non-deployed detachment support. However, our factfinding disclosed the claimant is responsible for installing, integrating, managing, monitoring, maintaining, operating, and troubleshooting hardware and pre-approved software located in the Software Center. Responsibility for designing hardware and software rests with higher-level agency employees.

The PD states the claimant researches, analyzes, and recommends network hardware and software upgrades. However, the claimant does not perform these duties. He also does not plan, direct, monitor, or evaluate the work of government and non-government employees assigned to deploy, place, setup, configure, operate, teardown, and maintain computer network equipment and associated systems. Responsibility for planning, directing, monitoring, and evaluating the work of others rests with team leader positions.

The PD states the claimant performs network manager functions for daily in-house operations and for deployed disaster support. However, the claimant does not perform network manager functions but performs technical support functions.

Our fact-finding disclosed the claimant does not develop applications programs utilizing commercial off-the-shelf software to satisfy detachment user requests and requirements. He does not research microcomputer and network hardware and software capabilities that address requirements of detachment personal computer users. He does not provide technical input to engineers, technicians, specialists, and non-technical government and non-government personnel at meetings or conferences concerning data communications systems, system integration, deployment, installation, upgrade, modification, and operation. Instead, FEMA’s Office of the Chief Information Officer performs these functions.

The claimant performs a variety of routine computer, telecommunication, and system administration technical support duties and responsibilities while operating under steady-state work conditions.

The claimant follows clearly defined guidance, methods, and processes during the performance of his steady-state work. He establishes and monitors employee access to Mobile Emergency Response (MER) Maynard Detachment’s (MMD) systems and instructs new employees regarding a variety of established technical and administrative processes and procedures associated with accessing and operating MMD computer and telecommunication systems; provides technical support (e.g., installation, testing, and troubleshooting) for new and existing systems and various platforms, operating systems, applications, and desktop configurations; and resolves customer support requests involving integration and/or configuration-related issues within the MMD office and emergency response vehicles (ERV).

The claimant identifies computer telecommunication, and system administration problems, based on established manufacturer or agency specifications and guidelines; coordinates with other MMD network specialists and security specialists to prevent recurring problems; and performs required network resource allocations.

The claimant provides computer technical support for MMD Local Area Network (LAN) and Wide Area Network (WAN) systems in accordance with established guidelines and manufacturer specifications; installs LAN distribution and cabling systems utilizing readily available computer hardware (e.g., CISCO routers and network switches); monitors the operability of network configurations; performs standard tests to ensure networks operate within prescribed parameters; and applies security patches in accordance with manufacturer specifications and MMD standard operating procedures (SOP).

The claimant coordinates the installation, maintenance, and troubleshooting of telecommunications services and components within the MMD office and onboard ERVs; maintains records of the computer, telecommunication, system administration, and LAN-based service configuration work he performs; reviews manufacturer specifications, performs basic cost comparisons, and performs pilot reviews of new off-the-shelf software applications and electronic systems and proposes alternatives to his immediate supervisor; and provides technical support to, and coordinates with, other personnel regarding the integration, installation, implementation, network administration, and system management of the MMD’s servers and client workstations running on Microsoft operating systems.

The claimant also performs MERS IT Specialist work while deployed for FEMA emergencies that is substantively the same as his previously described steady-state work.

In reaching our FLSA decision, we have carefully reviewed all information gained through separate interviews with the claimant and his second-level supervisor, as well as documents and information provided by the claimant and the agency. We did not interview the claimant’s immediate supervisor because at the time of our fact-finding the supervisor was deployed to a FEMA emergency.

Evaluation

Period of the claim

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. To confirm the FLSA filing requirements for FEMA employees, OPM requested the agency’s established FLSA claim process policy and/or procedures. However, the agency failed to respond to OPM’s request. The record contains an email from the claimant received by the agency on January 4, 2022, in which the claimant filed an FLSA claim with OCCHCO FEMA classification. Absent any policy and/or procedure to indicate otherwise, we consider January 4, 2022, the date the agency received a formal claim from the claimant. Therefore, the claim is preserved effective January 4, 2022, and is subject to a two-year statute of limitations commencing on January 4, 2020. Any time prior to that date falls outside the claim period (i.e., September 2019, to January 3, 2020).

FLSA Coverage

Sections 551.201 and 551.202 of title 5 CFR require an employing agency to designate an employee FLSA exempt only when the agency correctly determines that the employee meets one or more of the exemption criteria. In all exemption determinations, the agency must observe the following principles: (a) Each employee is presumed to be FLSA nonexempt unless the employing agency correctly determines that the employee clearly meets the requirements of one or more of the exemptions. (b) Exemption criteria must be narrowly construed to apply only to those employees who are clearly within the terms and spirit of the exemption. (c) The burden of proof rests with the agency that asserts the exemption. (d) 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. (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 exemption categories applied to Federal employees:  executive, administrative, and professional (including learned professional). As documented in the “FLSA Checklist” attached to the claimant’s steady-state PD, the agency determined the claimant’s duties do not meet the executive, or professional (including learned professional) criteria and the claimant does not disagree. After careful review we concur with the agency thus have not addressed those criteria separately in the analyses that follows.

The “FLSA Checklist” attached to the claimant’s MERS Specialist PD shows his deployed work is nonexempt by comparison to the administrative exemption criteria and we concur on the agency determination. The “FLSA Checklist” for his steady-state IT Specialist position shows his FLSA status is exempt and meets the computer employee exemption criteria (i.e., 5 CFR 551.210) of the FLSA. However, after a careful review of the actual work performed by the claimant, we disagree with the agency’s determination to exempt the claimant’s steady-state work based on the computer employee exemption criteria. We also find the claimant’s steady-state work does not meet the administrative exemption criteria (i.e., 5 CFR 551.206) as discussed below.

Computer employees exemption criteria

The current regulations under 5 CFR 551.210 describe the criteria for exemption for computer employees, as follows:

(a) Computer systems analysts, computer programmers, software engineers, or other similarly skilled workers in the computer field are eligible for exemption as professionals under section 13(a)(1) of the Act and under section 13(a)(17) of the Act. Because job titles vary widely and change quickly in the computer industry, job titles are not determinative of the applicability of this exemption.

(b) The exemption in section 13(a)(1) of the Act applies to any computer employee whose annual remuneration exceeds the salary-based non-exemption prescribed in §551.203. The exemption in section 13(a)(17) applies to any computer employee compensated on an hourly basis at a rate of basic pay (as defined in §551.203(b)) not less than $27.63 an hour. In addition, these exemptions apply only to computer employees whose primary duties consist of: (1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; (2) The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; (3) The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or (4) A combination of the aforementioned duties, the performance of which requires the same level of skills.

(c) Computer manufacture and repair. The exemption for employees in computer occupations does not include employees engaged in the manufacture or repair of computer hardware and related equipment. Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs (e.g., engineers, drafters and others skilled in computer-aided design software), but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related occupations as identified in paragraph (b) of this section, are also not exempt computer professionals.

(d) Executive and administrative computer employees. Computer employees within the scope of this exemption, as well as those employees not within its scope, may also have executive and administrative duties which qualify the employees for exemption under this subpart. For example, systems analysts and computer programmers generally meet the duties requirements for the administrative exemption if their primary duty includes work such as planning, scheduling, and coordinating activities required to develop systems to solve complex business, scientific or engineering problems of the organization or the organization’s customers. Similarly, a senior or lead computer programmer who manages the work of two or more other programmers in a customarily recognized organizational unit, and whose recommendations regarding the hiring, firing, advancement, promotion, or other change of status of the other programmers are given particular weight, generally meets the duties requirements for the executive exemption. Alternatively, a senior or lead computer programmer who leads a team of other employees assigned to complete a major project that is directly related to the management or general business operations of the employer or the employer’s customers generally meets the duties requirements for the administrative exemption, even if the employee does not have direct supervisory responsibility over the other employees on the team.            

The claimant’s steady-state work does not meet the criteria for exemption of computer employees detailed in 5 CFR 551.210.

While the claimant’s annual rate of basic pay substantially exceeds the salary-based non-exemption criteria provided in 5 CFR 551.203, his position fails to meet the additional computer employees exemption criteria described in 5 CFR 551.210(b)(1-4) whose primary duties consist of those tasks listed in that section. Unlike the occupations listed in 5 CFR 551.210(a), the claimant is not a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computer field eligible for exemption as a professional. Instead, he performs routine computer, telecommunication, and system administration technical support work. He responds to standard customer service requests (e.g., passwords, accesses, troubleshooting common computer and telecommunication issues); maintains day-to-day functionality, operability, and security of existing MMD and MERV systems and networks; provides basic maintenance and repairs to MMD and MERV computers and related telecommunication equipment, such as performing scheduled system upgrades as per manufacturer specifications; and performs routine tests and installs off-the-shelf communication lines, switches, routers, and modems.

Unlike the computer employees exemption, the claimant’s steady-state work also does not meet the primary duty test because he is not responsible for applying systems analysis techniques and procedures to determine hardware, software, or system functional specifications; designing, developing, documenting, analyzing, creating, testing or modifying computer systems or programs, including prototypes, based on and related to user or system design specifications; or designing, documenting, testing, creating and modifying computer programs related to machine operating systems.

In contrast to the computer employees exemption, the claimant’s steady-state work does not include analyzing MMD, DECD, or FEMA computer systems or networks, nor does it include consulting with users to determine hardware, software, or system functional specifications as established in 5 CFR 551.210. Instead, his work involves responding to routine customer service requests such as installation of standard pre-approved agency programs and applications, and access to various computer applications, programs, and networks. Responsibility for conducting analysis of MMD, DECD, or FEMA computer systems and networks and consulting with users to determine hardware, software, or system functional specifications rests with higher-level computer programmers, analysts, and engineers within the agency.

Unlike the computer employees exemption, the claimant’s steady-state work does not involve designing, developing, documenting, analyzing, creating, testing or modifying computer systems or programs, including prototypes, based on and related to user or system design specifications; nor does it include designing, documenting, testing, creating or modifying computer programs related to machine operating systems. These responsibilities rest with higher-level computer programmers and engineers within the agency.

Section 551.210(c) of title 5, CFR describes employees engaged in computer manufacture and repair of computer hardware and related equipment noting that such employees are not covered by the exemption. This does not apply to the claimant’s position as he does not perform such duties.

Unlike the criteria discussed in 5 CFR 551.210(d), we concur with the agency that the claimant’s position does not meet the executive criteria addressed in 5 CFR 551.205. In addition, because the claimant does not function as a systems analyst or computer programmer performing duties such as planning, scheduling, and coordinating activities required to develop systems to solve complex business, scientific or engineering problems of MMD, DECD, FEMA or its customers, as discussed later in this decision he does not meet the administrative exemption discussed in 5 CFR 551.206.

Based on the preceding analysis, the claimant’s steady-state work does not meet the criteria for the computer employees exemption.

Administrative exemption criteria

The current regulations under 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 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 operations 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.

The claimant’s steady-state work does not meet the administrative exemption criteria detailed in 5 CFR 551.206.

Unlike the administrative exemption, while the claimant performs office or non-manual work, his steady-state duties are not an extension of the agency’s management process or general business operations and do not help with or affect the management of significant matters within his agency. Instead, the claimant’s work is limited to the provision of computer and telecommunication technical support to MMD.

Unlike the administrative exemption, the claimant’s steady-state work does not require he exercise discretion and independent judgment with respect to matters of significance as addressed in the ten factors of 5 CFR 551.206(b). For example, he lacks the authority to formulate, affect, interpret, or implement management policies or operating practices at the MMD level; commit the agency with regard to matters with significant financial impact or to waive or deviate from established MMD, DECD, or FEMA policies, procedures, and well-established protocol without prior approval from his supervisor or higher-level management within MMD, DECD, or FEMA. He has no authority to negotiate and bind his agency concerning significant matters; does not consult with and provide expert advice to FEMA management; and is not involved in planning long or short-term organizational objectives for FEMA. He also lacks the authority to investigate and resolve matters of significance on behalf of management and is not authorized to represent FEMA in handling complaints, arbitration of disputes, or resolution of grievances against the organization. These responsibilities are vested with his supervisor or higher-level management within MMD, DECD, or FEMA. Therefore, the claimant’s steady-state work does not meet the administrative exemption criteria and by extension any IT related duties performed while deployed for emergencies.

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.

We have determined that the steady-state (non-emergent) work performed by the claimant during the claim period is nonexempt, i.e., covered under the overtime pay provisions of the FLSA. Therefore, in accordance with 5 CFR 551.211(f)(1), all work performed by the claimant during the claim period is nonexempt and covered by the provisions of the FLSA.

Decision on FLSA Coverage

The claimant’s work does not meet the computer employees, administrative, executive, professional or learned professional exemption criteria. Therefore, all work performed by the claimant during the claim period is nonexempt and he is entitled to compensation for all overtime hours worked at the FLSA overtime rate during the claim period. The agency must follow the compliance requirements on page ii of this decision. The agency must reconstruct the claimant’s pay records for the period of the claim and compute back pay for FLSA overtime pay owed and any interest on the back pay, as required under 5 CFR 550.805 and 550.806, respectively. While our decision specifically establishes the claim period for purposes of preserving the claim, by implication it also applies to the period going forward if the major duties and responsibilities evaluated in the decision essentially remain the same. If the claimant believes the agency incorrectly computed the amount owed, he may file a new FLSA claim with this office.

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