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STRATEGIC COMPENSATION CONFERENCE
FLSA/POSITION CLASSIFICATION APPEALS UPDATE

Melissa Drummond
August 2002

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Agenda

• Classification Appeals Program
  • Digests 27 and 2
• Fair Labor Standards Act Program
  • Recent Issues and Decisions
• Compensation and Leave
  • Recent OPM Claim Decisions

 

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Adjudication Statistics

• Classification Appeals - 60%
  • Between 125 - 150
• Pay Claims - 30%
  • Between 60 - 75
• FLSA Claims - 10%
  • Between 10 - 25

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Important Aspects of Classification Appeals Process

• Differs based on Nature of Position
• PD Accuracy Issues
• Agency Administrative Report
• Factfinding
• Application of OPM standards
• OPM Decision is final and binding
  • Applies to similarly situated positions

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Appeal Decisions
FY00 - FY02

Decided Cases

FY 2002 (so far) - 62
FY 2001 - 136
FY 2000 - 139

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Appeal Outcomes
FY00 - FY02

	FY 2000	FY 2001	FY 2002 (so far)
Same	114	119	48
Upgrade	6	2	4
Downgrade	10	10	4
Misc	9	5	6

 

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Outcome of Appeals
Decided by Division

	Atlanta	Chicago	Dallas	Philadelphia	San Francisco	Washington
Upgrade	3	1	4	1	1	0
Downgrade	4	0	6	3	2	8
Misc	5	5	8	2	0	0

 

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Recent Digest Articles

• Digests 27 and 28
• ‘Back to the Basics’
• Links to Decisions
• Website

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IT WORK - #27-01, #28-01

• New IT JFS and special salary rate
  • GS-335-10 wanting to be GS-2210-11
  • GS-335-7s wanting to be GS-2210-07 or 09
    • Support of small LANs and integration with other networks and mainframes
    • Work on home pages and Intranet
    • Provided hardware support to IT specialists and used knowledge of hardware, peripheral devices, memory storage, etc.
    • No in-depth knowledge of IT principles to plan/analyze, design, test, configure, etc.

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• GS-644 FES STANDARD - #28-03

• F2 - Overall priorities and objectives were established by a higher-level position
• F3 - To ensure the integrity of the quality control, the appellants adapted existing tests instead of developing them and were not allowed the ability to substantially deviate from established practice
• F4/5 - Work did not involve systemic problems or those that required major testing or modification of quality assurance programs for other laboratories

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GEG FOR POSITIONS OF MGRS OF OPERATING ED. PROGRAMS - #28-04, #28-05

• Factor 1 – Student Load
  • Agency was inconsistent with tracking courses
  • OPM took an average number from two categories
• Factor 2 – Course Range and Variety
  • What is a "creditable course"? – It must meet the general intent/objectives of a college-level course
  • OPM disagreed with the agency, which changed the factor level designation
    

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4  Factor 2 – Course Range and Variety

• What is a "creditable course"? - It must meet the general intent/objectives of a college-level course
• OPM disagreed with the agency, which changed the factor level designation

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• 018, Safety and Occupational Health
  • Grade level was based on supervisory duties, requiring "supervisory" prefix
• GSLGEG
  • Did not meet 25% threshold due to subordinates’ independence, no "lead" prefix
  • Led technical projects assigned to ad hoc teams; did not have both technical and administrative "lead" responsibilities on a continuing basis

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GSSG - #28-06, #28-07

• Deputy positions
  • A deputy must fully share in the authorities and responsibilities of the Chief
• Crediting for subordinate supervisors
  • Factor 3-3b can only be credited to those who direct two or more subordinate supervisors, team leaders, or comparable personnel
• Term and temporary work
  • Guide covers temporary employees, unpaid volunteers, student trainees, etc.

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FWS VS. GS - #27-08, #28-08

• 4805, Medical Equipment Repairer
  • Repair/troubleshooting of medical equipment did not require knowledge of an electronics technician
• 2604, Electronic Mechanic
  • Appellant used Internet operating systems to analyze, diagnose, test, configure, and verify functionality of networking systems
  • Work required trade knowledge of electronics principles to determine whether problems were hardware- or software-based and to make repairs

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OPM GUIDANCE - #27-05, #28-02

• Factor 5 in GS-460 Forestry Standard
  • Addressed breadth and impact of position
• Level 1-9 in GS-200 JFS
  • How important is the "and" in the criteria?
    • Conceptual expert generating new concepts OR
    • Functional Program expert who:
      • conceives/plans broad or critical large-scale agency programs,
      • serves as consultant to top agency officials, AND
      • advises other HR experts throughout the agency.

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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.

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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.

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FLSA Information

• Federal Sector Administration - OPM
• FLSA Program Office
  • Coverage and Claims
• Pay and Leave Administration Division

• Private Sector - Department of Labor

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Hot Topics

• Mirror DoL regulations
  • Bates v. U.S., January 15, 2002
• Issue of Back Pay Interest
  • U.S. vs. Rowdy Adams, February 13, 2001
• Temporary Work – Schaller vs. U.S.
• Reconsideration of FLSA Decisions - 5 CFR 551.708
• Centralization of FLSA Claims function

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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)

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Important FLSA Guidance

• 29 U.S.C.
• 5 CFR 551
  • Definitions
  • General Principles
  • Exemption Criteria
• Factsheets on Claims and Coverage
• Work Aid
• OPM FLSA Claim Decisions

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Important FLSA Terminology -
5 CFR 551.104

• 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

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General Principles of Exemption - 5 CFR 551.202

• 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.
  • Three Exemption Categories

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Summary of General Exemption Principles - 5 CFR 551.202

• An employee who meets the exemption criteria must be designated FLSA exempt.
• Failure to meet exemption criteria under one category does not preclude exemption from under another category.
• FLSA designation rests on the duties actually being performed by the employee.

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Making Exemption Determinations

• Preparation
  • Gather Materials and confirm PD accuracy
• Factfinding
• Analysis
  • Eliminate primary duty tests
  • Analyze the pd and evaluation statement with regulatory guidance
• Conclusion

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Executive Exemption Criteria

• Is the primary duty test met?
  • Makes personnel changes and has authority to recommend personnel changes
• 80% test for certain employees

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Administrative Exemption Criteria

• Is the primary duty test met?
• Is the nonmanual work test met?
  • Intellectual OR specialized training/experience
• Is discretion/independentjudgment used?
• 80% test for GS-5 or GS-6 employees

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Professional Exemption Criteria

• Is the primary duty test met?
• Does the work requirecreative/analytical thought processes?
• Is discretion/independent judgment used?
• 80% test for GS-5 or GS-6 employees

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Temporary Work -
5 CFR 551.208

• Does the period of temporary work exceed 30 consecutive calendar days?
• Does the work not support the current FLSA designation?
• Emergency Work - 5 CFR 551.208(d)
  • Affects exempt employees if nonexempt duties are performed for more than 20% of the workweek

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Recent OPM Decisions

• Analysis of Three Criteria – F-0802-11-04
  • Also discusses the issue of back pay and references the FPM Manua
• Willful Violation – F-0856-11-01
  • Not simply an error
  • Did agency know that its conduct was prohibited by the Act or did it show reckless disregard of the requirements of the Act
• Executive Exemption – F-0081-09-01
  • Exempt Supervisory Firefighter
    • Percentage of time on duties
• Professional Exemption – F-0334-12-01
  • Exempt - First Decision in IT Specialist Work

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FLSA -
Jurisdictional Issues

• OGC Advisory
  • Impact of MOA on Carter v. Gibbs
• Rowdy Adams v. U.S., 96-93C, September 30, 1999
  • Supervisory Border Patrol Agent
• Number of Employees Supervised
• Primary Duty Test

• Recognized Organizational Unit

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Applying Exemption Criteria (2)

• Berg v. U.S., 95-748C, May 1, 2001
  • Production vs. Supporting Service
  • Adequacy of PD/Written Record
  • Impact of Step-by-Step Instructions
• Berg’s Unaddressed Issues
  • Professional Exemption Criteria
  • Pay Category of Work

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Other Issues

• Agency Agreements/Practices
  • Determination by Grade Level
  • Interrelationship of FLSA and Classification
  • Non-exemption
• Presumption

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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

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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
  • Impact of Carter v. Gibbs Decision

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Proposed Regulatory Changes for 5 CFR 551

• Address FLSA jurisdiction for DC Government employees.
• Clarify our role in administering the FLSA in comparison to Department of Labor.
• Stipulate that the 30-day test must be 30 consecutive calendar days.
• Establish a 45 calendar day time limit for filing reconsideration requests.

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Pay Claims - 5 CFR 178

• Similarities with FLSA
  • Must follow NGPs ifcovered 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

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Findings of Pay Claims

• Carter v. Gibbs
• Barring Act - 31 U.S.C. 3702(b)(1)
• 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

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Authority for Adjudication of Pay Claims - PL 104-316, 110 Stat. 3826

• 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

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Types of Pay Claims - Compensation

• Pay Retention - #01-0026
  • Misinformation does not allow granting of claim: {60 Comp. Gen. 417 (1981)}
• Retroactive Promotion (error) - #01-0020
  • Require approval by appropriate authority:  {B-190408, December 21, 1977}
• Performance of Higher Duties - #01-0012
  • Requires an official personnel action: {61 Comp. Gen. 408 (1982)}

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Types of Pay Claims - Leave

• Incorrect SCD affecting accrual - #01-0017
  • Employees must review their LES’  {B-189353, August 10, 1977}
• Annual Leave Buyback - #01-0035
  • Subject to forfeiture if not used  {B-182608, August 9, 1977}
• Suspension and non-pay status - #00-4386
  • Lump-sum payment not allowable for SL {B-190152, November 30, 1977}

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Types of Pay Claims -
Unpaid Compensation

• Beneficiary involved in murder of deceased - #00-3118:
  • Disqualified {B-175195, April 26, 1972}
• Divorce Decree - #01-0023
  • Courts of state of domicile have no jurisdiction {B-227728, March 23, 1988}
• Court-Ordered Child Support or Bankruptcy
  • Advisory Opinion - Yes and No {42 USC 659; 58 Comp. Gen 644 (July 9, 1979)}

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Excellent Representation

• Atlanta - Ginny Magnuson
• Chicago - Vacant
• Dallas - Bonnie Brandon
• Philadelphia - Bob Hendler
• San Francisco - Carlos Torrico
• Washington - Linda Kazinetz
• FLSA/Pay - Deborah McKissick

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QUESTIONS AND ANSWERS

• FEDCLASS_APPEALS@OPM.GOV
• FEDERAL_FLSA@OPM.GOV
• MADRUMMO@OPM.GOV
• (202) 606-2990