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


03/04/2024

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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 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, 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 Atlanta, Georgia, with duty station in San Juan, Puerto Rico. 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 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 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 with the advent of the COVID-19 pandemic, he worked approximately one-hundred hours of overtime from April 2020 to April 2022 inspecting the work of contractor cleaning staff during COVID-19 cleanings in various facilities to ensure specific FAA cleaning procedures based on Centers for Disease Control and Prevention (CDC) guidelines were followed. The claimant requests to be compensated for the overtime worked at the FLSA overtime pay rate.

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. 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 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 SJUW3DI to which he 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 reviews and approves environmental audits, permits, and other documents, but he does not review and approve environmental studies as stated in the JAT. Further, although he is expected to keep abreast of changing regulations in his field, his position is not responsible to forecast “future resources needs to manage emerging environmental issues.” This responsibility rests with program managers at the headquarters level. In addition, 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, although the claimant may be asked to participate in studies conducted by headquarter level personnel to gather quality assessment information and the like, he neither conducts studies to identify environmental problems nor works directly with legal counsel on issues and guidance 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 belongs to the organization managing 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 its service areas to maintain compliance with EOSH program polices and guidelines. EOSH programs and sub programs include but are not limited to asbestos, lead, air quality, safe drinking water, hazardous waste, hazardous materials, spill prevention control and countermeasures, gas emissions, personal protective equipment (PPE), electrical safety, and radiation safety.

The claimant is assigned to the EOSH Support Center (Team B) and serves as the Safety and Environmental Compliance Manager (SECM)(i.e., organizational title of position) for the Miami District (covering Tampa, Florida to the U.S. Virgin Islands) 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 policies. The claimant identifies possible environmental concerns that may impact facility projects involving altering of areas impacting existing buildings, renovations, and construction. He does this by reviewing initial Work Review Requests (WRRs) received from a variety of sources but primarily from System Support Center (SSC) managers, to identify asbestos and lead impacts and ensures that construction workplans address an abatement level contract for the work to be done. The claimant may conduct asbestos and lead inspections as necessary. He also uses the Pre-Construction/Installation EOSH Checklists provided by the organization managing the project to conduct walkthroughs and/or 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 project engineer. His role throughout the duration of the project is to serve as the technical expert for assessing unexpected environmental impacts (e.g., fuel oil spill) and to make recommendations for mitigation. The length of his involvement with the project depends on the scope of the project.

The claimant conducts various inspections, surveys, and assessments in the areas of, but not limited to, radiation (e.g., inspecting equipment for radiation leaks), noise and light intensity level inspections in areas of concern, fall protection, confined space, hazardous energy control, mold, indoor air quality, and PPE. He also conducts drinking water testing and quality assessments for unsatisfactory conditions reported through facility inspections, employees, and/or union 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 facility safety inspections conducted under the Workplace Inspection Tool (WIT) program. He may also be assigned to conduct safety inspections under the WIT program at FAA facilities as necessary.

When performing his work, he applies knowledge of EOSH program policies and procedures, FAA Orders, Environmental Protection Act (EPA) standards, Occupational Safety and Health Act (OSHA) standards, consensus standards, state and local environmental regulations, and bargaining union agreements. He exercises independence in planning and executing his work, researches issues or discusses with his supervisor or program managers as needed. The claimant’s supervisor does not review the technical methods or approaches used by the claimant to perform his work. The claimant meets with his supervisor on a weekly basis to provide updates on his work activities. His work may be tracked for completion of assignments and evaluated for conformity to 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 inspected the work performed by cleaning contractor staff called to clean and disinfect affected areas in FAA facilities after confirmed cases of COVID-19 were reported. He also provided training for routine level cleanings. As with his regular and recurring duties, to perform this work, the claimant applied knowledge of well-established FAA orders, EPA and OSHA standards, and in addition CDC guidelines to ensure the cleaning staff wore proper PPE, used approved cleaning chemicals, and followed application protocols (i.e., holding 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 managers.

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 (ESA ESOG Team B 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 May 6, 2022, thus subject to a two-year statute of limitations commencing on May 6, 2020, and any time prior to that (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; 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 main 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).

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, but 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 agency. Rather, as a SECM his 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 may draft standard operating procedures (e.g., location specific earthquake 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., long-term 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 is assigned to 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. He also does not perform any work requiring him to have authority to negotiate and bind the organization on significant matters or make significant decisions on behalf of the organization. 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 the organization. Rather, he provides technical advice and recommendations to SCC facility project managers on the technical aspects of EOSH compliance.

The claimant is not involved in the planning of long or short-term organizational objectives of the 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 the 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 regulations and 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 May 6, 2022, and the claimant can receive back pay for two years prior to that date (i.e., May 6, 2020). However, the period of the claim from April 2020 to May 5, 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 the 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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