Washington, D.C
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
Damon B. Ford
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
07/11/2024
Date
Finality of Decision
As provided in section 551.708 of title 5, Code of Federal Regulations (CFR), this decision is binding on all administrative, certifying, payroll, disbursing, and accounting officials of agencies for which the U.S. Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA). The agency should identify all similarly situated current and, to the extent possible, former employees, and ensure that they are treated in a manner consistent with this decision and inform them in writing of their right to file an FLSA claim with the agency or OPM. There is no right of further administrative appeal. This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708 (address provided in section 551.710). The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.
The agency is to compute the claimant’s overtime pay in accordance with the instructions in this decision, then pay the claimant any amount owed. If the claimant believes the agency has incorrectly computed the amount owed him, he may file a new FLSA claim with this 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 April 4, 2022, OPM received a FLSA claim from representatives of the claimant who is challenging the exemption status and requests back pay for approximately one hundred hours of overtime worked while assigned as a Safety and Occupational Health (SOH) Specialist, FV-0018-I, with the Terminal Construction Center ALT-B (Team B), Terminal SUV/WX Engineering Group, Engineering Services Group, Technical Operations, Eastern Service Area, Federal Aviation Administration (FAA), U.S. Department of Transportation, Atlanta, Georgia; and during his temporary promotion to the position of SOH Program Manager, FV-0018-J, with Environmental and Occupational Health and Safety (EOSH) Compliance Team, EOSH Services Group, Director, Facilities and Engineering Services, VP, Technical Operations, TD03 Chief Operating Officer, Washington, DC, between April 4, 2020, and April 4, 2022. We received the agency administrative report (AAR) on June 17, 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
The claimant was officially assigned to a SOH Specialist, FV-0018-I, position under Job Analysis Tool (JAT) ASOG3CI, at the beginning of the claim period. However, sometime after his assignment to this JAT, the agency discontinued JAT ASOG3CI, but retained no copies of the document. Consequently, the agency was unable to provide a copy of the JAT to OPM. Later in the claim period, the claimant was temporarily promoted to the position of EOSH Program Manager, FV-0018-J, under JAT SIVJ013, to which he was assigned at the time of this review. The agency provided a copy of JAT SIVJ013 in the AAR, as well as copies of separate Notification of Personnel Action Standard Form 50s (SF-50) confirming the claimant’s assignment to both the SOH Specialist, FV-0018-I, under JAT ASOG3CI and the SOH Program Manager FV-0018-J, under JAT SIVJ013.
The agency asserts the claimant is not eligible for FLSA overtime pay because the duties described in both of the aforementioned positions meet the administrative exemption criteria of the FLSA (5 CFR 551.206).
The agency asserts that both positions required the performance of non-manual work directly related to the business operations of the agency and its customers and that the exercise of discretion and independent judgement with respect to matters of significance were primary duties of both the SOH Specialist, and the SOH Program Manager positions. The agency also cites the occupational series and grade levels of these positions as additional support for its decision to exempt the claimant’s positions from the overtime pay provisions of the FLSA. In its Rationale Report for OPM, the agency writes:
The 0018 series is in the Professional Job Category, Career Level 4 results in the I Band level assignment, represents a senior level specialist and is equivalent to a non-supervisory GS-13 in the General Schedule.
The 0018 series is in the Professional Job Category, Career Level 5 results in the J Band level assignment, represents a recognized subject matter expert and is equivalent to a non-supervisory GS-14 in the General Schedule.
The claimant disagrees with the agency’s FLSA exemption determination for both the SOH Specialist, and the SOH Program Manager positions, asserting that the actual work of these positions did not require him to exercise discretion and independent judgement with respect to matters of significance; perform advisory or management functions; or perform many of the complex operational duties and responsibilities described in his JAT. Therefore, he believes both positions should be designated as FLSA nonexempt, and he should be awarded back pay for hours of overtime worked while assigned to these positions.
OPM FLSA exemption status determinations are made solely by comparing duties, responsibilities, and authorities actually assigned to and performed by the claimant during the claim period to FLSA regulations and guidelines. Since comparison of actual duties, responsibilities, and authorities to FLSA regulations is the exclusive method for making exemption status determinations, we cannot rely solely on the agency-established series and grade of an official JAT or written descriptions of duties, responsibilities, and authorities contained within the JAT, which may not be fully accurate, as a basis for deciding a claim.
In reaching our FLSA decision, we have carefully reviewed all documents and information provided by the claimant and his agency, as well as information gained through separate interviews and e-mail communications with the claimant, his current and former supervisors, and staff of his servicing Human Resources (HR) office.
Position information
Since the agency was unable to provide OPM a copy of the claimant’s official JAT for the SOH Specialist, position (i.e., ASOG3CI), OPM conducted interviews with the claimant and his supervisor to identify and confirm the actual duties and responsibilities assigned to and performed by the claimant while assigned to the SOH Specialist, position. Our findings are as follows. While assigned to JAT ASOG3CI, the claimant served as a SOH Specialist under the EOSH Team B supervisor, who had full authority to assign and direct the work of the claimant, including assigning priorities, timelines, and methods and reviewing and accepting, rejecting, or modifying reports or decisions made by the claimant.
The claimant applied a working knowledge of established EOSH guidelines, principles, methods, and techniques to provide technical support to various EOSH programs, such as confined space, fall management, fire safety, asbestos, and COVID-19 response programs. He strictly adhered to the full range of established safety and occupational health policies and standards; used discretion to select and apply the most appropriate standard for each situation encountered; sought guidance and direction from his supervisor or higher-level agency personnel for situations or issues which lacked clear guidance or precedent; and explained EOSH guidelines and processes to a variety of agency and non-agency personnel as needed.
As a subject matter expert in SOH, the claimant clarified current FAA policies concerning EOSH policies for various agency and non-agency personnel (e.g., site managers and Federal contractors) on an as needed basis.
He reviewed SOH aspects of contracts for the Contracting Officer (CO) to ensure compliance with established EOSH standards; drafted scopes of work for SOH-related tasks for CO consideration; and provided technical information to the site manager regarding SOH aspects of new or ongoing Federal contracts.
He recommended abatement of specific EOSH violations identified during routine inspections (e.g., presence of asbestos and fire extinguishers at an unacceptable height on walls); monitored the progress of the abatement process by Federal contract personnel and/or site supervisors; and developed and submitted reports to his supervisor.
He coordinated with fellow Team B EOSH specialists, the Team B supervisor, and Team C personnel (e.g., Safety Engineers, Industrial Hygienists (IH), and program managers) to identify common job-related technical and procedural issues and to obtain guidance to address these issues.
He performed site inspections to determine if facilities met EOSH guidelines and to identify potential new issues. He identified violations of established EOSH guideline within Work Inspection Tool (WIT) reports submitted through Team B inspections. He also recommended abatement of violations and work stoppage in situations where obvious violations of policy and/or immediate danger to personnel, equipment, or property existed and coordinated with the site manager, Federal contractors, Team C, and the Team B supervisor to facilitate abatement of violations.
He provided EOSH-related technical support to the CO, including developing statements of work, reviewing contract plans and specifications for obvious noncompliance with established OSH guidelines, and reporting findings and observations to the CO for further action.
Work performed by the claimant typically impacted Team B and closely related EOSH processes and programs supported by his team.
During the latter part of the claim period, the claimant served as a EOSH Program Manager under JAT SIVJ013. However, both the claimant and the supervisor identified duties and responsibilities in JAT SIVJ013, which were incorrect, overstated, or not performed by the claimant during the claim period. For example, many statements in the JAT indicate the claimant is assigned program and/or project management duties and responsibilities. The JAT states the claimant applies knowledge of FAA’s policies and objectives to identify, define, and organize resources for large projects, programs, and work activities; acquires and allocates resources to accomplish activities within established schedules and budgetary requirements; develops the spend plan, budget, and operating plan for the program; and manages and implements projects using the corporate work plan and generally accepted practices of cost, budget, and schedule. The JAT states the claimant’s position applies experience and expert knowledge of program management principles, theories, concepts, procedures and operations to conduct functional activities for the assigned EOSH program/project which requires the developing of new and innovative approaches and that the claimant identifies and resolves highly complex problems that often cross organizational boundaries; and is responsible for planning the overall program and monitoring progress to make sure that deliverables and milestones are being met across the various projects and programs. However, the claimant is not assigned project management responsibilities, nor is he responsible for managing OSH programs. Instead, individual FAA OSH programs (e.g., confined space, fall management, fire safety, asbestos, and compliance) are managed by specific program managers at FAA headquarters and are typically responsible for management of associated projects.
The JAT states the claimant serves as a consultant and advisor to management on a broad range of EOSH programs, policies, and procedures that support the mission, goals, and initiatives of the Air Traffic Organization (ATO) and that he develops and evaluates methods to assess program strengths and identifies and recommends areas for improvement. However, although the claimant is a SOH technical expert, he does not serve as a consultant and advisor to management regarding a broad range of EOSH programs, policies, and procedures, nor does he develop and evaluate methods to assess EOSH program strengths or identify and recommend areas for improvement of EOSH programs, policies, or procedures. Instead, these responsibilities rest with the Team B supervisor or Team C personnel.
The JAT makes many statements indicating the claimant is responsible for providing contract officer technical representative (COTR) support for various aspects of Federal contracts. The JAT states the claimant applies experience and expert knowledge of contract and program management concepts and principles and knowledge of financial management principles, objectives, and regulations for budget formulation and execution; develops statements of work; coordinates with contract support teams to ensure projects meet required cost, schedule, and performance metrics; develops, monitors, and updates processes and metrics to support organizational success, meets reporting deadlines; and monitors the contractor’s compliance with schedules; communicates program plans, contract requirements, financial management and technical issues to stakeholders; and develops briefings to convey strategic vision and /or organizational policies to internal and external audiences. However, responsibility for Federal contracts, and for formulating and executing budgets associated with Federal contracts, rests with the CO. We found that the claimant serves as a COTR, and that he uses his knowledge in the area of SOH to provide technical support to the CO by determining if SOH aspects of contracted work is being performed in accordance with established contract parameter.
The JAT states the claimant serves as a liaison between ATO management officials and support organizations to resolve complex and challenging national and service areas environmental and employee safety matters/problems and ensures services align with the philosophies and direction of the LOB. However, the claimant is not assigned these responsibilities. Instead, responsibility for conducting liaison between ATO management officials and support organizations to resolve national and service area environmental and employee safety matters/problems and ensures services align with the philosophies and direction of the LOB, rest with the Team B supervisor or higher-level agency officials.
The JAT states the claimant operates under broad policies and objectives, which provide general guidance for addressing issues but often require the development of new approaches. The JAT also states that the claimant is often asked to develop new policies, procedures, and approaches that take into consideration FAA policies, government-wide rules, and regulations, and external concerns, and that he may create new solutions and policy interpretations as situations require. However, our review revealed the claimant operates strictly within established guidelines and that he cannot deviate from established guidelines without prior approval from his supervisor or a higher-level agency official.
The JAT states the claimant’s work is typically reviewed only at completion for success in achieving planned results. However, the claimant’s work receives regular reviews prior to completion by his supervisor, Team C project managers, and the CO, who provide feedback and additional direction as needed.
The JAT states that the work performed by the claimant directly affects accomplishments of one or more organizational objectives and that the claimant’s work may impact the activities of multiple lines of business external to the ATO and that he/she exercises broad discretion to ensure that work is integrated with ATO objectives and policies. However, our review revealed that the direct effects of the claimant’s work are typically limited to the accomplishments and objectives of Team B.
During the claim period, the claimant served as a SOH specialist and a SOH technical expert under the Director, Facilities and Engineering Services (F&ES), who had full authority to assign and direct the work of the claimant, including assigning priorities, timelines, and methods and reviewing and accepting, rejecting, or modifying reports or decisions made by the claimant.
The claimant applied a knowledge of established guidelines, principles, methods, and techniques to provide technical support to various EOSH and F&ES programs. He strictly adhered to the full range of established EOSH, F&ES, and FAA policies and standards and sought and received authorization prior to deviating from established guidelines. He selected and applied the most appropriate standard for each situation encountered; sought guidance and direction from his supervisor or higher-level agency personnel for situations or issues which lacked clear guidance or precedent; and explained EOSH, F&ES, and FAA guidelines and policies to various agency and non-agency personnel (e.g., site managers and Federal contractors) on an as needed basis.
The claimant served as a COTR and used his knowledge of SOH to provide technical support to the CO. He reviewed contract plans and specifications for obvious noncompliance with established OSH guidelines and standards, and determined if safety and occupational health aspects of contracted work was performed in accordance with established contract parameters. He developed statements/scopes of work involving SOH-related tasks for the CO’s consideration and reported findings and observations associated with SOH-related contract work to the CO for further action. He also provided technical information to the site manager regarding SOH aspects of new or ongoing Federal contracts.
He recommended abatement of specific guideline violations identified by other SOH specialists during routine inspections (e.g., presence of asbestos and fire extinguishers at an unacceptable height on walls); monitored the progress of the abatement process by Federal contract personnel and/or site supervisors; worked with contractors and various affected agency personnel to facilitate recommended abatement; and developed and submitted reports to his supervisor.
He coordinated with other SOH specialists, the Team B supervisor, and Team C personnel (e.g., safety engineers, IH, and program managers) to identify common job-related technical and procedural issues, which may affect the health and safety of agency and non-agency personnel and provided and/or sought guidance to address these issues as necessary.
He identified violations of established EOSH, F&ES, and FAA guidelines identified within Work Inspection Tool (WIT) reports and kept appropriate personnel informed of all relevant issues and concerns. He coordinated with the site manager, Federal contractors, Team C, and the Team B supervisor to facilitate abatement of violations.
Work performed by the claimant typically impacted EOSH and F&ES processes and programs supported by his team.
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. OPM received the claim on April 4, 2022. Therefore, the claim is preserved effective April 4, 2022. Therefore, based on 5 CFR 551.702(b), the claim period commences on April 4, 2020. However, the claimant seeks FLSA overtime pay commencing in March 2020. Because that date exceeds the two-year statute of limitations it is time barred. Therefore, we find the claim was preserved effective April 4, 2022, when OPM received the claim, and the claim period commences on April 4, 2020.
Applicability 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, 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; and (e) while established position descriptions and titles may assist 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 (5 CFR 551.205), administrative (5 CFR 551.206), and professional (including learned professional) (5 CFR 551.207 and 208). Neither the claimant nor the agency asserts the claimant’s work meets the executive or professional exemption and based on careful review of the record, we agree. However, the agency believes the claimant’s position meets the administrative exemption criteria of the FLSA, but the claimant disagrees. Therefore, our analysis below is limited to the administrative exemption criteria in 5 CFR 551.206.
Administrative exemption criteria
The current regulations under 5 CFR 551.206 establish the administrative exemption criteria, in relevant part, as follows:
An administrative employee is an employee whose primary duty is the performance of office or non-manual work directly related to the management or general business operations, as distinguished from production functions, of the employer or the employer’s customers and whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
(a) In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. The term “matters of significance” refers to the level of importance or consequence of the work performed.
(b) The phrase discretion and independent judgment must be applied in light of all the facts involved in the particular employment situation in which the question arises. Factors to consider when determining whether an employee exercises discretion and independent judgment with respect to matters of significance include, but are not limited to, whether the employee:
(1) Has authority to formulate, affect, interpret, or implement management policies or operating practices;
(2) Carries out major assignments in conducting the operation of the organization;
(3) Performs work that affects the organization’s operations to a substantial degree, even if the employee’s assignments are related to operation of a particular segment of the organization;
(4) Has the authority to commit the employer in matters that have significant financial impact;
(5) Has authority to waive or deviate from established policies and procedures without prior approval;
(6) Has authority to negotiate and bind the organization on significant matters;
(7) Provides consultation or expert advice to management;
(8) Is involved in planning long-or short-term organizational objectives;
(9) Investigates and resolves matters of significance on behalf of management; 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 choice, 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 escribed in manuals or other sources.
An evaluation of the actual duties, responsibilities, and authorities assigned to and performed by the claimant during the claim period indicates neither the work of the SOH Specialist, nor the SOH Program Manager positions meets the administrative exemption criteria.
The claimant’s work in both positions does not meet the administrative exemption criteria in 5 CFR 551.206. Although during the claim period he performed non-manual administrative and technical support work, neither the work of the SOH Specialist, nor the SOH Program Manager positions required him to perform a support function of substantial importance to SOH and EOSH as envisioned in 5 CFR 551.206. Instead, the primary duties of both positions were limited to performing operational tasks (e.g., liaising with groups and individuals to facilitate abatement of violations of EOSH guidelines) involving skill in applying well-established techniques, procedures, and specific occupational safety and health standards described in relevant manuals and regulations and providing technical and administrative support to EOSH programs and related processes.
In contrast to the administrative exemption criteria, neither the SOH Specialist, nor the SOH Program Manager duties involved the application of discretion and independent judgment to matters of significance with respect to the management or SOH and EOSH general business operations.
Unlike the administrative exemption, neither the duties assigned under the SOH Specialist, nor the SOH Program Manager positions claimant are an extension of the FAA’s management process and do not help with or affect the management of significant matters within his agency. Instead, the duties of these positions affected the specific functional tasks of facilities and the functional tasks the claimant performed during day-to-day operations within his team. Thus, duties associated with both the SOH Specialist, and the SOH Program Manager positions are limited to EOSH programs and processes and constitute only one element of the larger spectrum of the line work performed within his organization.
Unlike the administrative exemption, neither the SOH Specialist, nor the SOH Program Manager position required the claimant to exercise discretion and independent judgment with respect to matters of significance as described in the ten factors listed in 5 CFR 551.206(b). He was not assigned authority in either position to formulate, affect, interpret, or implement management policies or operating practices, carry out major assignments in conducting the operation of the EOSH, or perform work that affected the organization’s operations to a substantial degree. Such authorities rested with either his supervisor or higher-level management within FAA.
Unlike the administrative exemption, in neither the SOH Specialist nor the SOH Program Manager position did the claimant have the authority to commit FAA with regard to matters with significant financial impact or to waive or deviate from established agency policies, procedures, and well-established protocol without prior approval from his supervisor or higher-level agency management. Similarly, both positions lack the authority to negotiate and bind the organization concerning significant matters or to consult with and provide expert advice to the organization’s management. Furthermore, neither the SOH Specialist nor the SOH Program Manager positions were involved in planning long or short-term organizational objectives.
Also, unlike the administrative exemption, neither the SOH Specialist nor the SOH Program Manager positions were responsible for investigating and resolving matters of significance on behalf of the organization’s management or representing any level of the EOSH in handling complaints, arbitrating disputes, or resolving grievances against the organization. Instead, these responsibilities rest with his supervisor or higher-level management within FAA.
Based on the preceding analysis, the actual work performed by the claimant while assigned to the SOH Specialist and SOH Program Manager positions does not meet the administrative exemption criteria.
Decision on FLSA Coverage
The work performed by the claimant while assigned to the SOH Specialist and SOH Program Manager positions does not meet the executive, administrative, or professional exemption criteria, as discussed above. Therefore, the positions are properly designated as FLSA nonexempt and thus covered by the overtime pay provisions of the FLSA. The claimant is entitled to receive compensation at the FLSA overtime pay rate for all overtime hours worked during the claim period. 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 this decision essentially remain the same. Since the claim was received by OPM on April 4, 2022, the claimant is entitled to receive back pay for all hours of overtime worked two years prior to that date, i.e., April 4, 2020.
The agency must reconstruct the claimant’s pay records for the period of the claim, including the difference between the FLSA overtime rate and any overtime pay already paid under the agency’s core compensation pay system, and consider any travel related to training and/or inspections as hours of work, 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. If the claimant believes the agency incorrectly computes the amount owed, he may file a new FLSA claim with this office