STRATEGIC COMPENSATION CONFERENCE
Melissa Drummond
Agenda
- Overview of Adjudicative Functions
- Classification Appeals Program Update
- Proposed Regulatory Changes
- Recent Digest Articles
- Information on FLSA Program
- Compensation and Leave Claims
Office of Merit Systems Oversight and Effectiveness
- Associate Director reports to OPM Director
- Has three major components
- Office of Merit Systems Effectiveness
- Office of Workforce Information
- Office of Merit Systems Oversight
- Five Field Components and Washington
Merit Systems Oversight Umbrella
- Office of Merit Systems Oversight
- Agency Reviews
- Special Studies
- Adjudication Function
- Classification Appeals
- Fair Labor Standards Act (FLSA) Claims
- Claims relating to Compensation and Leave (referred to as pay claims)
Adjudication Statistics
- Classification Appeals - 60%
- Pay Claims - 30%
- FLSA Claims - 10 %
Appeal Outcomes - FY99 - FY01
[This slide includes a bar chart that depicts whether appeal outcomes stayed the same or changed, from fiscal year 99 through the present. In fiscal year 1999, 124 appeal outcomes remained the same while 21 changed. In fiscal year 2000, 119 appeal outcomes remained the same while 20 changed. In fiscal year 2001 so far, 105 appeal outcomes remained the same while 16 changed.]
Appeal Outcomes - FY99 - FY01
[This slide contains a bar chart that depicts whether appeal outcomes resulted in downgrades, upgrades, or something else. In fiscal year 1999, there were 8 downgrades, 9 upgrades, and 4 other actions. In fiscal year 2000, there were 11 downgrades, 5 upgrades, and 4 other actions. In fiscal year 2001 so far, there has been 9 downgrades, 3 upgrades, and 4 other actions.]
Professionalism of OPM Representatives
[This slide contains an area chart that depicts agency and appellant responses to questions about the professionalism of OPM representatives. Sixty-nine agencies agreed and 3 disagreed when asked about the professionalism of OPM representatives. Fourty-one appellants agreed and four disagreed when asked about the professionalism of OPM representatives.]
Agency Response vs. OPM
[This slide contains a bar chart depicting agency response versus OPM response over time. The data points are as follows:
- For a period less than 6 months, agency was 14 and OPM 17;
- From 6-12 months, agency was 7 and OPM 14;
- From 13-18 months, agency was 8 and OPM 3; and
- For a period greater than 18 months, agency was 9 and OPM 8.]
Plain Language
[This slide contains a bar chart depicting the use of plain language. The data points used in the chart are as follows:
- 64 agencies agree and 8 disagree; and
- 32 appellants agree and 13 disagree.]
Addressing of Classification Issues
[This slide contains a graph depicting the issue of addressing classification issues. The data points used in the chart are as follows:
- 69 agencies agree and 3 disagree; and
- 17 appellants agree and 28 disagree.
Classification Appeals Process
- GS - Hierarchical Structure
- May appeal to agency or OPM
- FWS
- Need to go to agency first
- Exemptions
- Some agencies are exempt from parts of Title 5 and the Classification Act
- Final administrative recourse is the agency
Important Aspects of Classification Appeals Process
- PD Accuracy Process
- Agency Administrative Report
- Factfinding
- Application of OPM standards
- OPM Decision is final and binding
- Applies to similarly situated positions
Proposed Regulatory Changes for 5 CFR 511
- Require agencies to establish a classification appeal program.
- Remove the option of having appellants appeal to OPM through their agencies.
- Remove the option of filing a reconsideration request with the OPM Director.
Proposed Regulatory Changes for 5 CFR 532
- Add subpart on how to comply with job grading decisions, job grading appeal decisions, and OPM job grading certificates.
- Remove the option of filing a reconsideration request with the OPM Director.
Recent Digest Articles
- Digest 27
- 'Back to the Basics'
- Links to Decisions
- Website
Interdisciplinary Positions
- GS-401 that had previously been classified as a GS-408
- Final classification is determined by quals of person selected to
fill the position
- Interdisciplinary positions are applicable for professional
positions only
Technician vs. Professional
- Was confident that quals merited higher grade
- Studies were defined, planned, and directed by professional
- Training and keeping abreast of information is well within the standard
303-6 and 343-12
- One-grade requesting two-grade
- Worked with database that applied edit checks
- Used two clearly-defined coverage exclusions and standard letters
- Two-grade downgraded to one-grade
- Obtained basic information and used boilerplate letters
647-5
- Automated pd credited Level 2-3
- Complex procedures were performed less than 25% of the time
- Work was closely monitored and at times performed by higher-graded employees
- Automated PDs are not equivalent to benchmark PDs
963-8 upgrade to 9
- Appellant requested classification as 343-9
- Work clearly met the 963 series definition
- OPM found that the appellant had signatory authority equivalent to Level 2-4
- Performance or delivery of line program operations or services are not normally classified in the GS-343 series
905-12 upgrade to 13
- Standard allows for the "effect of individual stature" concept for borderline situations
- OPM found that experience credited under Responsibility but could not be considered again under "stature"
- Specific standard instructions take precedence over general guidance
RGEG
- Allows for intermediate point values
- Appellants believed that exceeding one degree in any aspect merited credit at the next degree
- Some aspects exceeded but others fell short
- Counterbalance nullified crediting of higher level
GS-110 - RGEG Coverage
- Appellant requested that his economic research be evaluated using the GS-110 standard
- RGEG specifically excludes research in the social sciences
- This type of research does not typically involve the types of investigative processes representative of RGEG work
GSSG
- Agency credited 3-4 to a field manager with 70 employees
- All of 3-3a was not met due to the lack of delegation of program responsibility - nullified 3-4 crediting
- Activities were stable and did not require significant flexibility in structure of work
GS-801 - GSSG Coverage
- Full supervision of two GS-12s and assumed supervisor's duties when absent
- Two GS-12s exercised considerable independence
- In analyzing a supervisory position, subordinate positions may need to be reviewed
WG-2604 - FWS vs. GS
- What is the paramount knowledge of the position/job?
- Job required knowledge of electronic principles but for the primary purpose of recognizing improper operation, determining cause of malfunctions, correcting defects
FWS JGS for WL
- Appellant requested additional credit for variety of skills/work
- OPM determined the target grade of the work being led
- Training involved formal organized training programs covering a recognized trade combined with on-the-job practice designed to progressively improve the students' skills
FLSA Information
- Federal Sector Administration - OPM
- FLSA Program Office
- Pay and Leave Administration Division
- Private Sector - Department of Labor
Hot Topics
- Issue of Back Pay Interest
- U.S. vs. Rowdy Adams, February 13, 2001
- Temporary Work
- Misclassifications discovered during FLSA factfinding
- Reconsideration of FLSA Decisions
- Centralization of FLSA Claims function
Important FLSA Moments
- 1938 - The Act is passed by Congress
- 1974 - Becomes applicable to public employees
- 1990 - Carter vs. Gibbs
- 1994 - Statute of Limitations Changes
- 6 to 2 years (3 years for willful violation)
- 1995 - Treasury Appropriations Act upholds 2 year statute after June 30, 1994
Important FLSA Terminology
- Exemption Status - an employee's designation by the agency
- Exempt - not covered by minimum wage/overtime provisions
- Nonexempt - covered by minimum wage/overtime provisions
- Primary duty - duty that constitutes the major part of an employee's work
General Principles of Exemption
- Each employee is presumed to be FLSA non-exempt
- If there is reasonable doubt on meeting exemption criteria, the employee should be FLSA non-exempt
- Burden of proof rests with the agency
Summary of General Exemption Principles
- Separate exemption criteria are not mutually exclusive
- Failure to meet exemption criteria under one category does not preclude exemption from under another category
- FLSA designation ultimately rests on the duties actually being performed by the employee
Making Exemption Determinations
- Preparation
- Gather Materials and confirm PD accuracy
- Analysis
- Eliminate primary duty tests that are not met
- Analyze the pd and evaluation statement with regulatory guidance
- Conclusion
Executive Exemption Criteria
- Is the primary duty test met?
- Makes personnel changes & has authority to recommend
personnel changes
- Is the 80-percent test met?
- 80% or more of workweek on supervisory and closely related work
Administrative Exemption Criteria
- Is the primary duty test met?
- Is the nonmanual work test met?
- Intellectual OR specialized training/experience
- Is discretion/independent judgment used?
- Is the 80-percent test met?
Professional Exemption Criteria
- Is the primary duty test met?
- Does the work require creative or analytical
thought processes?
- Is discretion/independent judgment used?
- Is the 80-percent test met?
Temporary Work
- Does the period of temporary work exceed 30 consecutive calendar days?
- Does the work not support the current FLSA designation?
- Emergency Work
- Affects exempt employees if nonexempt duties are performed
for more than 20% of the workweek
Foreign Exemptions
- Spends all hours of work in one or more exempt area
- Exempt area - any foreign country/territory under U.S.
jurisdiction except -
- All States & Washington, DC
- Puerto Rico, Virgin Islands American Samoa, Guam
Are Your FLSA Designations Correct?
- Cabinet-Level Agencies
- 1,527 GS-04 Exempt Employees
- 149 Nonexempt GS Supervisors
- 598 Nonexempt GS-13s
- Independent Agencies
- 14 Nonexempt GS Supervisors
- 545 Nonexempt GS-13s
- Small Agencies
FLSA Claims
- Federal Employees file with OPM
- Preserve the Claim Period
- Burden of Proof is on the Claimant
- Exemption Status
- Burden of Proof is on the Agency
- Must follow NGPs if covered by a collective bargaining
agreement
Pay Claims
- Similarities with FLSA
- Must follow NGPs if covered by an agreement
- Differences with FLSA Claims
- Agency denial is required
- 6-year Statute of Limitations
- Burden of Proof is on the claimant
- Decision is based upon the written record
Authority for Adjudication of Claims
- Legislative Branch Appropriations Act of 1996
- Uniformed service members' claims to DOD
- Travel, transportation, and relocation expenses to GSA
- Compensation and Leave claims for civilian employees to OPM
Basic Principles of Pay Claims Function
- Regulatory guidance
- CFR
- Reconsiderations are not accepted
- Civilian Personnel Manual
- Department of State Standardized Regulations
- Comptroller General Decisions
Types of Claims
- Compensation
- Back pay for performance of higher duties
- Standby vs. On-call
- Leave
- Unpaid Compensation
- Divorce Decree
- Redesignation
Findings of Pay Claims
- Carter v. Gibbs
- 6-year Statute of Limitations
- Majority find in favor of the agency
- Clear and convincing evidence before overturning an agency
- OPM decision is final
- Claimants may pursue further in court
Discussion Topics
- Issuance of new/revised standards in conjunction with the issuance of a classification appeal decision
- Up-to-date information on appellate authorities and claim offices within agencies
Excellent Representation
- Atlanta - Tim Heath *
- Chicago - Douglas Schauer
- Dallas - Bonnie Brandon
- Philadelphia - Bob Hendler
- San Francisco - Carlos Torrico
- Linda Kazinetz - Washington
- FLSA/Pay - Vacant
*Acting
QUESTIONS AND ANSWERS