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



01/26/2024

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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 compute the claimant’s overtime pay in accordance with the instructions in this decision, then, pay the claimant any amount owed her. If the claimant believes that the agency has incorrectly computed the amount owed her, she may file a new FLSA claim with this office. The servicing human resources office must submit a compliance report containing a Standard Form (SF) 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 6, 2022, OPM’s Merit System Accountability and Compliance received an FLSA claim from the claimant’s designated representatives. The claimant is an Environmental Protection Specialist, FV-0028-I, with organizational title of Safety and Environmental Compliance Manager (SECM), assigned to the Environmental Occupational Safety and Health (EOSH) Support Center, EOSH Support Operations Group (ESOG), Technical Services, Technical Operations, Federal Aviation Administration (FAA), U.S. Department of Transportation, in Des Moines, Washington, with duty station in Salt Lake City, Utah. She believes her FLSA exemption status should be nonexempt (i.e., covered) by the overtime pay provisions of the FLSA, and thus due FLSA overtime pay for overtime worked during the period of April 2020 to April 2022. We received the agency administrative report (AAR) on June 17, 2022. We have accepted and decided this claim under section 4(f) of the FLSA as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).

Background and General Issues

The claimant disagrees with the exemption status determination made by her agency. She believes the duties associated with her position do not justify the position being exempt from coverage of the FLSA. The claimant states that due to the advent of the COVID-19 pandemic she worked approximately 700 hours of overtime from April 2020 to April 2022, primarily working as an “EOSH Representative On-Call for all Reactive Level 3 COVID related cleanings throughout the Western Service Area (WSA),” (duties later described in this decision), and requests compensation for the work performed at the FLSA time-and-a-half overtime pay rate. Regarding the work performed during the pandemic, in its AAR, the agency states it considers that work as “other duties as assigned” and that the temporary or ancillary duties performed should not influence the FLSA determination for the subject position. In adjudicating this claim, our primary concern is to make our own independent decision about the exemption status of the claimant’s position. We must make that decision by comparing the actual duties assigned to and performed by the claimant to FLSA exemption criteria and guidelines.

Position Information

The claimant’s SF 50s documenting her employment history with the agency show she is and was assigned to position description/Job Analysis Tool (PD/JAT) number SLCW3DI during the claim period. The agency was unable to locate and provide a copy of the claimant’s PD/JAT and/or FLSA Exemption Determination Worksheet for the position. However, 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 have applied this principle.

ESOG’s mission is to achieve the safest occupational health workplace for all Air Traffic Organization (ATO) employees, and to strive to enhance and improve environmental compliance at all facilities through innovation, collaboration, communication, employee empowerment, workforce development and incident response. The EOSH Support Center provides support to facilities in specified districts within its service areas to maintain compliance with EOSH program rules and regulations. EOSH programs and functional areas include but are not limited to asbestos, lead, air quality, drinking water, pesticides and herbicides, hazardous waste/hazardous materials, under and above ground tanks, spill prevention control and countermeasures, personal protective equipment, and various safety related programs.

The claimant is assigned to the EOSH Support Center (Team A) and serves as the SECM for the Salt Lake City district of the ESOG’s WSA. As such, she assures that all facilities within her district meet environmental standards and compliance with EOSH program rules and regulations. She is the point-of-contact for System Support Center (SSC) managers or technicians for all technical EOSH program related inquiries. She reviews the Scope of Work (SOW) and approves Work Request Reviews (WRRs) for projects initiated by Engineering Services (ES) or SSCs involving renovations, remodeling, or altering of areas impacting existing building materials (e.g., ADA upgrade involving drilling into walls and floors) and/or introducing hazardous chemicals. She researches, pulls and provides historical lead and asbestos survey data needed for projects, and provides technical assistance to project initiators on how to safely carry out the project in accordance with applicable program policies and regulations.

The claimant conducts asbestos and lead inspections or surveys, drinking water, radiation and noise level surveys in specific areas of concern. She also conducts air quality monitoring including sampling for any known or suspect air contaminants, and mold assessments after water intrusion events. She writes reports for all inspections and surveys she conducts including any laboratory results and provides them to her manager, team coordinator, and Team C program managers. As a SECM and as requested she may also conduct safety inspections for FAA facilities or workplaces, fall protection assessments to include completing fall hazard checklists and reviewing rescue plans, and confined space assessments to include reviewing site specific entry procedures. The claimant is responsible for submitting an annual Emergency Planning and Community Right-to-Know (EPCRA) report to state regulatory agencies and fire departments to meet hazardous chemical reporting requirements for qualifying FAA facilities within her district.

When performing her work, she applies knowledge of EOSH program principles and procedures and uses guidelines such as Environmental Protection Act (EPA) standards, Consensus Standards (e.g., standards from the American National Standards Institute), Occupational Safety and Health Act (OSHA) standards, FAA orders, and EOSH program policies and guidelines. She exercises independence in planning and executing her work, and researches issues to discuss with Team C program managers, as needed. The claimant’s supervisor does not review the technical methods or approaches used by the claimant to perform her work. Her work is evaluated for conformity of EOSH program policies and requirements. As requested, the claimant may provide guidance to less experienced SECMs.

In addition to her regular and recurring duties, during the COVID-19 pandemic the claimant served as an “EOSH Representative On-Call for all Reactive Level 3 COVID related cleanings” of FAA facilities (control rooms, tower cabs) throughout the WSA. Like for her regular and recurring duties, she applied knowledge of EPA standards and occupational health and safety methods and procedures to perform the work. The  duties involved conducting safety briefings with the contracted cleaning staff prior to the cleanings; reviewing safety data sheets against EPA lists of approved chemicals to ensure proper chemical usage; overseeing the cleaning staff during cleanings to ensure specific procedures and protocols were followed; providing training on how to clean specialized air traffic control equipment (e.g., cleaning motions to be used); and reporting the work performed (in writing or using iAuditor an inspection application) to facility managers and other managers in her chain of command as appropriate.

In reaching our FLSA decision, we have carefully reviewed all information provided by the claimant and her representatives, and the agency, including information obtained from separate telephone interviews with the claimant and her supervisor, Supervisory Aviation Technical Systems Specialist, FV-2186-J, with working title of EOSH Support Center Manager (Team A).

Evaluation

Period of the claim

As provided for in 5 CFR 551.702(b), all FLSA pay claims filed after June 30, 1994, are subject to a two-year statute of limitations (three years for willful violation). 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 to preserve the claim period. The date the agency or OPM receives the claim is the date that determines the period of possible entitlement to back pay (5 CFR 551.702(c)). The claimant did not file a claim with her agency before filing with OPM and makes no assertion of willful violation.  The claim was received by OPM on May 6, 2022, thus is subject to a two-year statute of limitations commencing on May 6, 2020, and any time prior to that date (i.e., April 2020 to May 5, 2020) falls outside the claim period and is consequently time barred.

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) If there is a reasonable doubt as to whether an employee meets the criteria for exemption, the employee will 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 main exemption categories applied to Federal employees: executive, administrative and professional.

To be exempt from the overtime pay provisions of the FLSA, the employee must meet the executive (5 CFR 551.205), administrative (5 CFR 551.206), or professional, including learned professional (5 CFR 551.207 and 208). exemption criteria. As previously noted, the agency was unable to provide a copy of the claimant’s official PD/JAT of record and/or FLSA Exemption Determination Worksheet to support the position’s FLSA exemption designation. However, as part of the administrative report to OPM the agency provided its rationale for the FLSA exemption designation of the Environmental Protection Specialist, FV-0028-I positions, stating the FLSA exempt determination for the positions in question (one being the claimant’s position) was based on meeting the administrative exemption criteria. Neither the claimant nor the agency asserts the claimant’s work is covered by the executive or professional exemption criteria and based on careful review of the record, and the claimant's assigned duties and responsibilities, we conclude the claimant's position does not meet the executive or the professional (or learned professional) exemption criteria. The claimant disagrees with the agency’s determination that her position meets the administrative exemption criteria. Therefore, our analysis is limited to the administrative exemption criteria in 5 CFR 551.206.

Administrative exemption criteria

The current regulations in 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 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 work performed by the claimant does not meet the administrative exemption criteria in 5 CFR 551.206. Although the claimant’s primary duty involves the performance of office or non-manual work, it is not directly related to the management of the EOSH, or the general business operations of the ATOs. Rather, as a SECM the claimant’s work is focused on ensuring that all facilities within her district carrying out building projects are in compliance with environmental regulations and EOSH program policies and guidelines. In addition, she does not exercise discretion and independent judgment with respect to matters of significance as described in the ten factors of 5 CFR 551.206(b). For example, she has no authority to formulate, affect, interpret, or implement management policies or operating practices at her level. Work that significantly affects the formulation or execution of policies or practices generally refers to employees who actually make policy, make policy decisions, or develop proposals that are acted on by others. This authority is outside the scope of the claimant’s position. Instead, her environmental compliance duties require that she apply well established EOSH program policies and procedures and environmental protection standards and parameters.

The claimant does not carry out major assignments in conducting the operations of the organization. The claimant’s work focuses on carrying out technical environmental compliance functions within an organization that provides other types of technical operations support to its technical facilities. She carries out specific short-term assignments (i.e., reviewing SOWs and approving WRRs, conducting inspections and surveys, and complying with environmental reporting requirements) rather than major ones (e.g., conducting environmental program projects or studies) in conducting the operations of the organization, thus her work does not affect the organization’s operations to a substantial degree. The claimant does not have the authority to commit the employer in matters that have significant financial impact. She is not presented with situations requiring approval, for example, for additional money, people, or other resources to conduct her environmental compliance activities. This authority rests with project initiators and management officials.

Furthermore, the situations the claimant regularly deals with do not require waiving or deviating from established policies and procedures without prior approval. The claimant also does not perform any work requiring her to have authority to negotiate and bind the organization on significant matters or make significant decisions. Although the claimant has specialized knowledge and experience in the field of environmental protection and compliance, she does not provide consultation and expert advice to FAA management relating to the overall management or the general business operations of the unit, such as would be provided by certain management consultant or program analyst positions. Rather, she provides technical advice to ES or SCC facility managers on the technical aspects of environmental compliance.

The claimant is not involved in the planning of long or short-term organizational objectives of the organization. For example, she is not involved in the strategic planning efforts that may serve to establish, achieve, or otherwise impact either the long-or short-term objectives or goals of the organization. She is also not responsible for investigating and resolving matters of significance on behalf of management or representing the organization in handling complaints, arbitrating disputes, or resolving grievances. These matters are within the authority and responsibility of management positions at higher levels of the organization.

Although the claimant performs her work independently, free of immediate supervision and direction, in contrast to the application of discretion and independent judgment, she uses knowledge and skill in applying well-established safety and environmental rules, regulations, standards which are applicable to the work assigned. She does not make significant, far-reaching decisions or recommendations in the development, interpretation or application of agency level environmental protection policies or critical criteria. Therefore, the decisions she makes are not significant within the meaning of 5 CFR 551.206, in that they affect the procedural details of her environmental compliance work and primarily focus on deciding whether a project conforms to clearly applicable criteria.

Based on the preceding analysis, the work performed by the claimant does not meet the administrative exemption criteria in 5 CFR 551.206.

Decision on FLSA Coverage

The claimant’s work does not meet the executive, professional, or administrative exemption criteria. Therefore, her position is nonexempt and covered by the overtime pay provisions of the FLSA. She is entitled to compensation for all overtime hours worked at the FLSA overtime rate. The claim was received by OPM on May 6, 2022, and the claimant is entitled to receive back pay for two years prior to that date, i.e., commencing on May 6, 2020. As previously noted, the time from April 2020 to May 5, 2020, is time barred. While our decision specifically establishes the claim period for purposes of preserving the claim, by extension it also applies to the period going forward if the major duties and responsibilities evaluated in the decision essentially remain the same. The agency must follow the compliance requirements on page ii of this decision.

The claimant provided an approximate number of overtime hours worked during certain pay periods. The agency provided Time and Attendance records (i.e., copies of timecards from CASTLE) showing the claimant worked overtime hours during certain pay periods. The agency must review the claimant’s pay records during the claim period, and compute back pay for the difference between the FLSA overtime pay owed and any overtime already paid under the agency’s core compensation pay system, and interest on the back pay, as required in 5 CFR 550.805 and 550.806, respectively. If the claimant believes the agency incorrectly computed the amount, she may file a new FLSA claim with this office.

 

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