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


02/05/2024

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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 him. If the claimant believes that 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 June 30, 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 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 (DOT), in Melville, New York, with duty station in Nashua, New Hampshire. He believes his 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 June 2020 to June 2022. We received the agency administrative report (AAR) on July 19, 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 FLSA exemption status determination made by the agency. He believes the duties associated with his position do not justify the position being exempt from the overtime pay provisions of the FLSA. Furthermore, he states that due to the advent of the COVID-19 pandemic, he worked approximately two-hundred hours of overtime from June 2020 to June 2022, primarily overseeing and inspecting the work performed by contractor janitorial staff during COVID-19 cleanings in various facilities to ensure specific cleaning procedures and protocols were followed. The claimant requests to be compensated at the FLSA overtime pay rate for the overtime worked. Included in the record is an FLSA Exemption Worksheet, dated February 17, 2023, provided by the agency showing it designated the claimant’s position as FLSA exempt (i.e., not covered) by the overtime pay provisions of the FLSA based on meeting the administrative exemption criteria established in 5 CFR 551.206. In adjudicating this claim, our primary concern is to make an 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 against the FLSA exemption criteria and guidelines.

Position Information

Our review disclosed that the claimant’s official Job Analysis Tool (JAT) number ZBWW3DI to which the claimant is and was assigned during the claim period is not completely accurate because it describes duties and responsibilities he does not perform.. For instance, the claimant does not forecast “future resources needs to manage emerging environmental issues.” Furthermore, the JAT states the position, “[c]onducts studies, surveys and audits to identify environmental problems, works directly with legal counsel on issues and guidance as well as providing support to Service Area personnel.” However, the claimant neither conducts studies or audits to identify environmental problems nor works directly with legal counsel in any aspect of his work. Further, although the claimant may identify and recommend services needed to carry out a construction project safely and in accordance with environmental protection standards, he is not responsible for determining environmental technical requirements for “contract services in all phases of the environmental project.” This responsibility falls on the organization managing the project or the contract officer representative for the project.

ESOG’s mission is to achieve the safest occupational health workplace for all Air Traffic Organization 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 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 Safety and Environmental Compliance Manager (SECM) (i.e., organizational title of the position) for the Boston District of the ESOG’s Eastern Service Area (ESA). As such, he ensures that all facilities within his district meet environmental standards and compliance with EOSH program rules and regulations when carrying out projects involving construction, renovations, or altering of areas impacting existing buildings (e.g., replacement roof at an air traffic control center). The claimant identifies possible environmental concerns that may impact the project. He does this by reviewing initial Work Review Requests (WRRs) received from System Support Center (SSC) managers or Engineering Services (ES) to identify asbestos and lead impacts and ensures that the construction workplan addresses an abatement level contract for the work to be done. The claimant conducts asbestos and lead inspections as necessary. Then, in coordination with the local SSC managers or the point-of-contact (POC) for ES, and the facility project manager, he uses the Pre-Construction/Installation EOSH Checklist provided by the organization managing the construction project to review construction, installation and non-routine maintenance activities involving construction prior to commencement of work that potentially have EOSH impacts on the organization’s operations and its employees. As it relates to construction projects, the claimant is not involved in the day-to-day monitoring of the construction, this responsibility is assigned to the onsite engineer for the project. The claimant’s role is to serve as the POC for assessing unexpected environmental impacts (e.g., asbestos exposure) occurring during the project and makes recommendations for mitigation. The length of his involvement with the project depends on the scope of the project. For example, from a couple days to complete an SSC local project involving changing a water or sewer line to six months for replacement of a facility.

The claimant conducts various inspections, surveys, and assessments in the areas of, but not limited to, radiation (i.e., inspecting equipment for radiation leaks), noise level (i.e., inspections in areas of concerns), fall protection, confined space, hazardous energy control, mold, indoor air quality, and personal protective equipment (PPE). He also conducts drinking water testing and quality assessments for potential unsafe conditions reported through facility complaints. As a SECM, he is responsible for following up with SSC managers and providing assistance as needed with pending abatement plans or unresolved deficiencies found during safety inspections of the facility conducted under the Workplace Inspection program. He may also be assigned to conduct safety inspections at FAA facilities as necessary.

When performing his work, he applies knowledge of EOSH program policies and procedures and uses guidelines such as FAA Orders, Environmental Protection Act (EPA) standards, Occupational Safety and Health Act (OSHA) standards, Consensus Standards, and state and local environmental regulations. He exercises independence in planning and executing his work, researches issues or discusses with program managers as needed. The claimant’s supervisor does not review the technical methods or approaches used by the claimant to perform his work. His work is evaluated for conformity of EOSH program policies and requirements.

During the COVID-19 pandemic the claimant performed additional duties in support of an organizational effort to ensure air traffic control capacity remained. He oversaw and inspected the cleaning and disinfecting performed by janitorial contractor staff who were called to clean affected areas in FAA facilities after confirmed cases of COVID-19 were reported. As with his regular and recurring duties, to perform this work, the claimant applied knowledge of FAA orders, EPA standards and occupational health and safety methods to ensure the cleaning staff wore proper PPE, used approved chemicals, and followed cleaning protocols (i.e., application, waiting and wiping times) to clean specialized air traffic control equipment. Once the cleanings were completed he provided a written report on all aspects of the incident and work performed to the appropriate EOSH management team. Onset to these inspections, the claimant also provided training during two-week periods on proper PPE requirements, cleaning procedures and chemical use protocols.

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

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 (three years for willful violation). The claimant does not allege the agency committed a willful violation and there is no evidence the agency willfully violated the FLSA, thus we will not address the issue. 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 establishing the period of possible back pay entitlement (5 CFR 551.702(c)). The claimant did not file a claim with the agency before filing with OPM. The claim was received by OPM on June 30, 2022, thus subject to a two-year statute of limitations commencing on June 30, 2020, and any time prior to that (i.e., June 1, 2020, to June 29, 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; and (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 (5 CFR 551.205), administrative (5 CFR 551.206), and professional (including learned professional) (5 CFR 511.207 and 208).

To be exempt from the overtime pay provisions of the FLSA, the employee must meet the executive, administrative, or professional exemption criteria in 5 CFR sections 551.205 through 551.208. The agency determined that the claimant’s duties do not meet the executive or professional exemption criteria and the claimant does not contest that determination, and we agree. The agency determined that the claimant’s duties are exempt from the overtime pay provisions of the FLSA based on meeting the administrative exemption criteria, and the claimant disagrees. 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 and business operations of the organization.. Rather, as an SECM the claimant’s work is focused on ensuring that all facilities within his district are in compliance with environmental regulations and EOSH program policies and guidelines when carrying out building projects. In addition, he does not exercise discretion and independent judgment with respect to matters of significance as described in the ten factors listed in 5 CFR 551.206(b). For example, he has no authority to formulate, affect, interpret, or implement management policies or operating practices at his 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. Rather, the claimant’s position is limited to drafting standard operating procedures as necessary (e.g., site specific fire egress procedures), and his environmental protection and compliance duties require that he apply well established EOSH program policies and procedures and EPA standards and guidelines.

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 support functions within an organization that provides other types of technical operations support to its technical facilities. He carries out specific short-term assignments (i.e., reviewing and approving WRRs, conducting inspections, surveys, and quality assessments rather than major ones (e.g., environmental projects or studies to resolve environmental problems) in conducting the operations of his organization, thus his 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. He is not presented with situations requiring approval, for example, for additional money, people, or other resources to conduct his environmental protection and compliance activities. This authority rests with project managers 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 him to have authority to negotiate and bind his organization on significant matters or make significant decisions on behalf of his agency. Although the claimant has specialized knowledge and experience in the field of environmental protection and compliance, he does not provide consultation and expert advice to FAA management relating to the overall management or the general business operations of his organization. Rather, he provides technical advice and recommendations to SCC facility project managers on the technical aspects of environmental protection and compliance.

The claimant is not involved in the planning of long or short-term organizational objectives of his organization. For example, he 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 his organization. He 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 his organization.

Although the claimant performs his work independently, free of immediate supervision and direction, in contrast to the application of discretion and independent judgment, he uses knowledge and skill in applying well-established safety and environmental rules, regulations, standards which are applicable to the work assigned. He 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 he makes are not significant within the meaning of 5 CFR 551.206 in that they affect the procedural details of his 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, his position is FLSA nonexempt and covered by the overtime pay provisions of the FLSA. He is entitled to compensation for all overtime hours worked at the FLSA overtime pay rate. The claim was received by OPM on June 30, 2022, and the claimant can receive back pay for two years prior to that date (i.e., June 30, 2020). However, the period of the claim from June 1, 2020, to June 29, 2020, is time barred. The agency must follow the compliance requirements on page ii of this decision. 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 this decision essentially remain the same.

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 for the period of the claim and compute back pay for the difference between the FLSA overtime pay owed and any overtime pay already paid under the agency’s core compensation pay system, and interest on the back pay, as required under 5 CFR 550.805 and 550.806, respectively. If the claimant believes the agency incorrectly computed the amount, he may file a new FLSA claim with this office.

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