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


05/22/2023

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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 review whether the claimant has worked FLSA overtime in accordance with instructions in this decision, and if the claimant is determined to be entitled to back pay, the agency must pay the claimant the amount owed her plus interest as provided in 5 CFR 550.806. 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 servicing human resources office must submit a compliance report showing the actions taken within 30 days of the compliance action. The report must be submitted to OPM, Merit System Accountability and Compliance, Agency Compliance and Evaluation, Washington, DC, office. If the claimant believes the agency has incorrectly computed the amount owed her, she may file a new FLSA claim with the Office of Personnel Management (OPM), Agency Compliance and Evaluation (ACE), Washington, DC, office.

Introduction

On March 7, 2022, OPM received an FLSA claim from LeAnne M. Ford seeking the difference between overtime (OT) pay provided under title 5, United States Code (U.S.C.) while her position was exempt and the FLSA OT rate for the OT hours worked and the compensatory (comp) time off hours earned between July 7, 2019, and November 11, 2021. The claimant is assigned to the Public Assistance Section, Recovery Division (RD), Region 4, Regional Offices, Federal Emergency Management Agency (FEMA), U.S. Department of Homeland Security, in Tallahassee, Florida. We received the agency administrative report (AAR) on April 1,2022 and accepted and decided this claim under section 4(f) of the FLSA of 1938, as amended, codified at section 204(f) of title 29U.S.C.

Background and General Issues

On July 7, 2019, the claimant’s position was converted to her current Emergency Management Specialist, (Recovery) IC-0089-12 position, with an organizational title of Recovery Specialist under position description (PD) number L15235. The agency initially designated her permanent position (herein referred to as her steady-state position) as FLSA exempt based on meeting the administrative exemption criteria. When deployed the claimant is assigned as an Emergency Management Specialist, IM-0089-01, with an organizational title of Public Assistance Operations Support Specialist under PD number RES059, designated by the agency as an FLSA nonexempt position.

In an email dated December 8, 2021, the claimant was notified that the agency had changed the FLSA designation of her steady-state position to nonexempt. This happened after the Office of the Chief Component Human Capital Officer (OCCHCO) FEMA classification reviewed the FLSA determinations of numerous FEMA PDs, including the claimant’s PD. The record shows that effective November 21, 2021, the agency processed a Change in Data Element Standard Form (SF) 50 changing the FLSA designation of the claimant’s steady-state position from exempt (i.e., not covered) to nonexempt (i.e., covered) by the overtime pay provisions of the FLSA. However, no changes were made to her PD’s coversheet or the major duties and responsibilities. The claimant states that the agency has paid her at the exempt employee rate for the overtime worked and earned comp time off hours, which she believes was subject to exempt pay caps, prior to November 21, 2021. On December 13, 2021, she emailed her supervisors and asked if back pay would be granted to employees whose FLSA designation was changed and was referred to her servicing human resources (HR) office. She states she was told information on the back pay issue would be provided to supervisors from headquarters staff but has heard nothing. Subsequently, the claimant filed this FLSA claim with OPM. She requests the difference between the title 5 OT pay she received while her position was exempt and the FLSA OT rate for the 83.5 hours of OT worked and the 32 hours of comp time off earned between July 7, 2019, and November 11, 2021. The OT and comp time off hours appear to have been worked and earned under both steady-state and emergency situations which she believes should have been paid to her under the provisions of the FLSA but instead was paid straight time.

As stated above, the agency made no changes to the claimant’s PD coversheet’s FLSA designation or the major duties and responsibilities section when they processed an SF-50 updating the FLSA designation of her steady-state position to nonexempt. The PD clearly states it is a standard PD and employees assigned to it may perform one or more of the duties listed. However, a review of the PD shows exempt-type duties are included. Therefore, we had to determine whether the claimant regularly performs exempt or nonexempt work and did this by performing claimant and supervisory interviews. Our findings are discussed below.

Position Information

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 applied this principle. Our review disclosed that the claimant performs Public Assistance (PA) Program duties, and her steady-state PD is not completely accurate in that it describes numerous duties associated with emergency management programs in which she does not work or are higher-level management duties. For instance, the claimant does not address a broad range of issues concerning the regional application of FEMA statutes. She does not identify and track the resolution of conflicts in Federal planning requirements and assistance programs. The claimant does not develop and prepare regional emergency management plans, policies, procedures, and risk assessments. She does not attend stakeholder forums, serve as a senior regional functional proponent, direct regional recovery operations, or provide coordination, guidance, and assistance to major regional activities. The claimant does not execute emergency recovery program operations, ensure Stafford Act functional responsibilities are carried out, or facilitate on-going communications with internal and other Federal agency operations staff. She does not compile, reconcile, and correlate workload data from a variety of sources, address issues raised by regional staff members, or provide them solutions and options. The claimant does not collaborate with counterparts in other regions or headquarters, perform Individual Assistance Program functions, or develop plans to ensure essential functions continue during all-hazard events. She does not coordinate with others to ensure essential functions continue during any event or incident or develop and issue recovery plans, procedures, and risk assessments with voluntary organization partners. The claimant does not evaluate plans for compliance with management directives and policies, maintain communications between stakeholders, or implement programs to engage stakeholders in reducing the frequency, severity, and cost of disasters, injuries, fatalities, and the impact on the environment. She does not provide regional feedback on exercises, participate in on-site program reviews, or serve as a team member on reviews of crisis event recovery operations. The claimant does not perform technical writing functions or write/edit technical materials. She does not assure that materials presented are consistent with agency policy and with other information presented by the agency.

The PD also overstates duties performed by the claimant. For instance, it states the claimant applies broad emergency management knowledge and skill to a range of recovery issues, with many of them being complex and controversial. Rather, our fact-finding disclosed the claimant applies a variety of specific emergency management knowledge and skill to a range of recovery issues, which are considered complex and controversial when the State wants a project authorized before it can be coordinated with the appropriate FEMA organizations. The PD states the claimant manages recovery programs and projects for FEMA; responsible for ensuring the efficient and effective execution of all phases of assigned portions of significant, regional recovery projects. Instead, after the claimant speaks to her state counterparts and the applicant regarding their FEMA project, she verifies with them that she understands their questions and concerns. She then tracks the progress of the project and checks to see who it was assigned to so she can request the status of the project for the State.

FEMA’s mission is helping people before, during, and after disasters. The agency consists of 10 regions located across the continental United States and its territories. PA is FEMA’s largest grant program and provides assistance to State, local, territorial, and tribal (SLTT) governments, and certain types of private nonprofit (PNP) organizations so communities can quickly respond to and recover from major disasters or emergencies declared by the President. FEMA provides supplemental Federal grant assistance for debris removal, emergency protective measures, and the restoration of disaster-damaged, publicly owned facilities (e.g., roads and bridges, water control facilities, public buildings, public utilities, parks, and recreational facilities) and specific facilities of certain PNP organizations. The program also encourages protection of the damaged facilities from future incidents by providing assistance for hazard mitigation measures. FEMA provides this assistance based on the authorities granted in statutes, executive orders, regulations, and policies.

FEMA implements the PA Program after the President declares that an emergency or major disaster exists, and the declaration authorizes assistance to SLTT governments and certain types of PNP organizations. The program encompasses numerous phases and begins with the State conducting briefings for all potential applicants so they can submit PA requests under the State’s Federal award. The process continues with FEMA approving PA requests, applicants identifying and reporting all disaster-related damage to FEMA, and applicants submitting the scope of work (SOW) and costs for FEMA review and validation. The process moves forward with FEMA and the State conducting final project reviews, FEMA obligating funds to the State who is responsible for distributing the funds to the applicants, FEMA confirming with the applicants all claimed damage is accurately documented, applicants submitting progress reports or changes for FEMA review, applicants completing the work and requesting the closeout of projects, and the State certifying completion of the work. The process ends with FEMA closing out the disaster.

The claimant is one of two Region 4 Recovery Specialists involved with the PA Program’s closeout phase and they are FEMA Integration Team (FIT) members embedded with the Florida Division of Emergency Management. They are the “face of FEMA” for Florida State employees by providing them support as needed.

The claimant serves as a liaison between Florida State employees and FEMA Region 4 staff members. For instance, when a state employee requests the status of a project the claimant checks computer programs and databases to see if the region received the required paperwork and if there are any notations providing project updates. If she cannot determine what is happening, she contacts the assigned project program delivery manager (PDMG) for a status update and provides the information to the requestor. The claimant downloads FEMA regulations and goes over concepts including FEMA reimbursable administrative costs with her state counterparts, as needed. She explains the paperwork the State needs to retain and provide to show eligibility for reimbursement. She reviews State regulations to see if they align with FEMA regulations. For example, the claimant recommended changes to State counterparts regarding their Essential Elements of Information for PA Projects regulation by referencing some language they should add from FEMA’s PA Program and Policy Guide. After a major disaster affects the State, the Governor may submit a letter requesting a declaration by the President through FEMA and the claimant provides examples of information to provide. The claimant uses FEMA computer programs and databases to track the various on-going State projects to ensure they are moving forward. She also provides updates to Regional Office staff regarding information such as when adverse weather is forecasted for Florida and State personnel needing FEMA PA Program training.

The Emergency Management Mission Integrated Environment (EMMIE) program is FEMA’s system that tracks and manages PA grant applications from the initial request through project closeout. The claimant accesses the program and the information she inputs includes her initial grant closeout package comments and notes explaining changes in a project’s SOW (e.g., material for a road changing from asphalt to concrete). She also inputs notes from project PDMG meetings, which guide applicants throughout the PA Program delivery process. The claimant attends PDMG meetings and serves as the notetaker. The Disaster Assistance Regional Tracking System (DARTS) is a FEMA Region 4 database that tracks incoming correspondence from the Tribal and State governments the region supports (i.e., six Tribal Nations and Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee). She accesses this database and inputs information including project status update requests and the steps taken to locate and provide the information to the State, and quarterly project progress reports.

After the applicant completes the project and the State certifies completion of the work, State personnel send an email to a Region 4 group email account stating the project is ready for closeout processing. The package is entered into the EMMIE program by data entry personnel and is assigned to the claimant for an initial review by her supervisor. She accesses EMMIE and reviews the package, which includes documentation such as worker time sheets, invoices and proof of payment, copies of contracts, and environmental issues encountered with the project. The claimant uses the PA Program Management and Grant Closeout Standard Operating Procedure (SOP) to determine if the documentation and evidence comply with PA policies and regulations. If the claimant determines the package lacks any required information, she requests the State submit the missing documents. The claimant recommends approval/non-approval of the project closeout before additional FEMA reviews are completed, which may include environmental, mitigation, or insurance reviews. The final review and project closeout approval/non-approval is made by a Region 4 senior program official.

After completing a project, an applicant can request a direct administrative costs (DAC) package be processed and the State typically submits a DAC package request at the same time. This is for reimbursement for costs incurred by the applicant and State that are properly documented and directly chargeable on a project worksheet (PW) for a specific project. State personnel send an email to a Region 4 group email account stating the DAC packages are ready for processing. The packages are entered into the EMMIE program by data entry personnel and assigned to the claimant for an initial review by her supervisor. She accesses EMMIE and reviews the provided documentation (e.g., time staff spends conducting an initial disaster-damage inspection, preparing and submitting a PW, adjusting or estimating cost over/under runs, and assembling, transmitting, and developing final actual costs for grant closure) to determine if the DAC are eligible under the PA Program in accordance with the Section 324 Management Costs and DAC FEMA Disaster Assistance Policy. If the claimant determines the package lacks any required information, she requests the State submit the missing documents. The claimant recommends approval/non-approval of the costs before an additional review by the State and the final review and approval/non-approval by a Region 4 senior program official.

The record shows that as a FIT member the claimant is infrequently deployed for FEMA emergencies. However, when the claimant is deployed for FEMA emergencies as a PA Operations Support Specialist the work performed may substantively be the same as her previously described steady-state work. She may also coordinate with the State to ensure they receive needed supplies (e.g., water and generators) and consolidate disaster-related damage. For example, the claimant states she worked as part of a team that consolidated preliminary damage assessments for Hurricane Dorian in 2019, which was forwarded to the Region 4 management team so they could analyze the data and determine if the damage sustained warranted a major disaster declaration.

In reaching our FLSA decision, we have carefully reviewed all information gained through separate interviews with the claimant and her current and previous supervisors, as well as documents and information provided by the claimant, her current supervisor, and the agency.

Evaluation

Period of the claim

As provided for in 5 CFR 551.702(b), all FLSA 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 must submit a written claim to either the employing agency 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. The record shows she appears to conflate the two-year statute of limitations look back period and submitting a written claim in order to preserve the claim period concepts when she states her agency did not correct her position’s FLSA determination in a timely manner and Stafford Act employees, such as herself, have no time limits within which to file a FLSA claim. In an August 1, 2022, email to OPM a servicing HR staff member confirmed the claimant did not file a claim with her agency. OPM received her claim on March 7, 2022, and this date is appropriate for preserving the claim period.

Applicability of FLSA coverage

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. (e) The designation of a position’s FLSA status ultimately rests on the duties actually performed by the employee. Our evaluation of the claimant’s duties as they relate to the FLSA exemption criteria follows.

There are primarily three exemption criteria applied to Federal employees: executive, administrative, and professional. As noted above, the claimant’s agency changed her FLSA designation to nonexempt but made no changes to her PD coversheet or the exempt-type major duties and responsibilities. The FLSA checklist attached to her PD shows the agency determined the claimant’s duties do not meet the executive or professional criteria. After careful review we concur with the agency thus have not addressed those criteria separately in our analysis. The agency appears to assert the duties and responsibilities described in her PD meet the administrative exemption criteria of the FLSA provided in 5 CFR 551.206. However, after reviewing the actual work assigned by management and performed by the claimant, we disagree with the agency keeping the claimant’s work exempt based on the administrative exemption criteria. Therefore, our evaluation is limited to the administrative exemption criteria of the FLSA.

Administrative exemption criteria

The current regulation under 5 CFR 551.206 describes 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 that 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 standards described in manuals or other sources.

In carrying out her Recovery Specialist duties, the claimant must use a certain degree of judgment in recommending whether or not to close out a project and if DAC are eligible for reimbursement. However, her primary duties do not include the exercise of discretion and independent judgment with respect to matters of significance within the meaning of this term in 5 CFR 551.206. The claimant relies on the guidance in the PA Program Management and Grant Closeout SOP and Section 324 Management Costs and DAC FEMA Disaster Assistance Policy, respectively, to assist her in developing her recommendation. However, she does not determine agency approval or non-approval. The claimant’s recommendation is one of several provided by specialty regional-level groups before a Region 4 senior program official makes the final decision.

The claimant implements FEMA operating practices to a certain degree when using PA Program guidance to perform her work. The guidance provides standard operating procedures and policies explaining State and applicant eligibility under the PA Program’s closeout phase. Carrying out established and defined work operations, as in this case, is not equivalent to having the authority to formulate, affect, interpret, or implement management policies or operating practices, i.e., the authority to make or interpret policy, or to devise or modify the operating practices that will implement those policies, as they are to be followed by others within the organization. Thus, the nature of her work relates exclusively to program operations as defined in PA closeout guidance rather than the program management carried out by higher-level supervisory personnel and others in the agency.

The claimant carries out a major assignment in conducting the operations of the organization, i.e., performing agency mission-oriented work. FEMA’s mission is helping people before, during, and after disasters. She serves as a Recovery Specialist with the PA Program and is a FIT member assisting her Florida State government counterparts. The claimant is a liaison between her State and FEMA Region 4 staff members by serving as “the face” of FEMA. Her duties include keeping State counterparts up to date on the status of their on-going projects, explaining concepts from FEMA regulations as requested, reviewing State disaster regulations to see if they align with FEMA disaster regulations, and providing approval/non-approval recommendations for project closeouts and DAC packages.

The claimant performs work that affects the organization’s operations to a substantial degree in the PA Program’s closeout phase. She works in the Recovery Division, which is made up of the Individual Assistance, PA, and PA Appeals Sections. The claimant is assigned to PA, the largest section in the division with the most employees and the PA Program is FEMA’s largest grant program. However, as noted above, the decisions she makes do not meet the full intent of discretion and independent judgment with respect to matters of significance within the meaning of this term in 5 CFR 551.206. The claimant relies on well-established PA Program guidance, which is applied throughout FEMA’s regions and its territories.

The claimant does not have the authority to commit the agency in matters with significant financial impact or to waive or deviate from established PA or FEMA policies, procedures, and well-established protocol without prior approval from her supervisor or higher-level management within the RD, PA Branch, or FEMA. She has no authority to negotiate and bind her agency concerning significant matters; does not consult with and provide expert advice to FEMA management; and is not involved in planning long or short-term organizational objectives for FEMA. She also lacks the authority to investigate and resolve matters of significance on behalf of management and is not authorized to represent FEMA in handling complaints, arbitration of disputes, or resolution of grievances against the organization. Instead, these responsibilities are vested with her supervisor or higher-level management within the RD, PA Branch, or FEMA.

Based on the preceding analysis, the claimant’s work does not meet the administrative exemption criteria.

Effect of performing different work or duties for a temporary period of time on FLSA exemption status

As described in 5 CFR 551.211(f)(1), the criteria for the exemption of work performed by employees under emergency situations, in relevant part, is as follows:

(f) Emergency Situation. Notwithstanding any other provision of this section, and regardless of an employee’s grade or equivalent level, the agency may determine that an emergency situation exists that directly threatens human life or safety, serious damage to property, or serious disruption to the operations of an activity, and there is no recourse other than to assign qualified employees to temporarily perform work or duties in connection with the emergency. In such a designated emergency:

(1) Nonexempt employee. A nonexempt employee remains nonexempt whether the employee performs nonexempt work or exempt work during the emergency

We have determined that the steady-state (non-emergent) work performed by the claimant during the claim period is nonexempt, i.e., covered under the overtime pay provisions of the FLSA. Therefore, in accordance with 5 CFR 551.211(f)(1), all work performed (including deployments) by the claimant during the claim period is nonexempt and covered by the provisions of the FLSA.

Decision on FLSA Coverage

The claimant’s work does not meet the administrative exemption criteria. Therefore, all work performed by the claimant during the claim period is nonexempt and she is entitled to compensation for all overtime hours worked at the FLSA overtime rate during the claim period. The agency must follow the compliance requirements on page ii of this decision. The agency must reconstruct the claimant’s pay records for the period of the claim 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. The agency’s calculation should include the difference between the title 5 overtime pay received and the FLSA overtime rate, plus interest. 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 the decision essentially remain the same. If the claimant believes the agency incorrectly computed the amount owed, she may file a new FLSA claim with this office.

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