Washington, DC

U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code

---

Robert D. Hendler
Classification and Pay Claims
Program Manager
Merit System Audit and Compliance


06/22/2011

---

Date

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).  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 5 CFR 551.710).  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.  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 as provided for in 5 CFR 551.708.   

Introduction

On July 27, 2009, OPM’s Center for Merit System Accountability, now Merit System Audit and Compliance, received an FLSA claim from Ms. Barbara R. King regarding the time she served as the Sexual Assault Prevention and Response Program Manager (SARC) at SAFB, Texas.  We received the agency administrative report (AAR) on September 22, 2009, and an email from the claimant on October 4, 2009, commenting on the AAR.  We have accepted and decided this claim under section 4(f) of the FLSA of 1938, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).

In reaching our FLSA decision, we have carefully reviewed all information furnished by the claimant and the agency, including information obtained from telephone interviews with the claimant, both of her first-level supervisors during the period of her claim, the Air Education and Training Command Sexual Assault Response and Prevention Coordinator, and pertinent Air Force program documentation.

The claimant states her role working with victims for the “response” portion of her job should be categorized as a “First Responder” and meets “the requirements of Department of Labor’s [DoL] first responders and the Part 541 Exemptions under the Fair Labor Standards Act (FLSA).”  She requests:  (1) she “[r]eceive retroactive premium pay for working “administratively uncontrollable overtime” with interest for the Period [sic] 1 Oct 07 through 29 Feb 09;” (2) “[r]estoration of credit hours/compensation lost;” (3) “[c]onsideration of position to determine if status was on call, on call back or stand by and any back pay/credit available;” and (4) “[r]esearch if position should remain fully exempt, non-exempt, or be exempt for management and program responsibilities and be non-exempt for periods of emergency after-hours work.” 

The claimant also asks OPM to:  (1) “[a]ssess” if DoD follows the rules for FLSA exempt positions in having to use accrued leave “(annual, sick, comp time, credit hours) for absences from work that are shorter than a full day;” (2) determine how exempt Department of Defense (DoD) employees are charged for short absences from work; (3) determine “[i]f short absences should have been time off without charge to leave, restore leave taken with a credit to [her] leave balance;” (4) review the SARC and Sheppard AFB workload data to determine whether it is exempt or nonexempt “during the periods of emergency response to victims” stating the “DoD [Department of Defense] Instruction lists the SARC as both a manager, professional and a First Responder;” (5) return any “used leave (annual, sick, used comp time, credit hours) or otherwise compensate [her] for time taken off using accrued leave for periods of less than one full day;” (6) pay “the differential for overtime worked with interest” if the “position/function is evaluated to be non-exempt;” and (6) if the work is found to qualify for “ ‘stand by’ duty pay and such pay be given with other pay/allowances; calculate percentage and pay out for the period  1 Oct 07 through 29 Feb 09 with interest.”

The claimant further asks OPM to:  (1) “properly” code the SARC position for “future employees with Air Force and Department of Defense; ensure they are informed of the status requirements for the position, and offered premium pay, standby duty pay and other compensation commensurate with the position requirements;” (2) “publish the results of this inquiry” to DoD full-time SARCs and their supervisors, human resources offices, timekeepers and “program managers so they may apply for any compensation personally due to them;” and (3) “waive the period of the claim to allow it to be retroactive to the start date as the SARC, or the beginning of the SARC Program implementation DoD-wide if the individual came into the program as one of the initial trained SARCs for their installation.”

General issues

In addition to seeking redress for herself, the claimant seeks to use this decision to remedy what she appears to believe are programmatic issues concerning the compensation SARCs receive Air Force- and DoD-wide.  However, because the designation of an employee as FLSA exempt or nonexempt ultimately rests on the duties actually performed by the employee, we cannot consider the exemption status of other employees or positions in making our decision.  See 5 CFR 551.202(e).  Under 5 CFR 551.702(a), a claimant may file a “claim challenging the correctness of his or her FLSA exemption status determination [emphasis added].”  Therefore, this decision will not address or respond to the issues raised by the claimant concerning other employees or the broad programmatic issues she seeks to raise that are not covered by the FLSA claims adjudication process.

Evaluation

Period of the Claim

As provided for in 5 CFR 551.702(b), FLSA pay claims are subject to a two-year statute of limitations, except in cases of willful violation where the statute of limitations is three years.  In her claim request, the claimant states:  “I am not sure of what evidence, if available, that the claim period was preserved in accordance with the time limits in 5 CFR 551.702 is required to assert my claim within the time limits or if this communication fulfills this requirement.”  Therefore, since the claimant has provided no evidence she preserved her claim with her agency prior to filing with OPM, we find the claim was preserved effective July 27, 2009, when it was received by OPM.  The claimant identified the period of her claim to be October 1, 2007 through February 29, 2009.  Therefore, the entire period of the claim identified by the claimant falls within the two-year statute of limitations provided for in 5 CFR 551.702(b).

We note the appellant asks us to waive the period of the claim.  The FLSA does not merely establish administrative guidelines; it specifically prescribes the time within which a claim must be received in order to be considered on its merits.  OPM does not have any authority to disregard the provisions of the FLSA, make exceptions to its provisions, or waive the limitations it imposes.

Position Information 

The AAR includes a copy of AF Standard Corps Personnel Document (SCPD) 9G816 classified initially as Sexual Assault Prevention and Response Program Manager, GS-101-12.  The cover sheet shows the original classification crossed out and replaced by YA-0101-02.  The SCPD cover sheet states “Conversion Effective Date:  21 Jan 2007” and “NOTE:  THIS PERFORMANCE PLAN IS SUPERSEDED [sic] BY NSPS [National Security Personnel System] REGULATIONS EFFECTIVE:  01/21/2007.”  In her response to the AAR, the claimant states she did not work under the SARC position description (PD) provided in the AAR:  “The PD cover sheet clearly states that the position description became invalid when NSPS was enacted.  I worked under objectives and goals designed by my supervisor and I and those are reflected on my Performance Appraisals of record by my supervisors (Col Kris Beasley and/or Col David Norsworthy)."

We do not agree.  The SCPD functions as both PD and performance plan.  While the claimant’s SCPD performance plan was superceded by an NSPS performance plan, the PD portion of the SCPD remained intact.  Notification of Personnel Action, Standard Form 50, provided in the AAR shows the claimant occupied PD 9G816 until July 19, 2009, when she was placed in another position.  The AAR includes a statement signed by the claimant and her supervisor on September 18, 2009[1], that “SCPD Number 9G816 is complete and accurate” with a note added by the claimant:  “This is the core document; under NSPS I also worked under goals created by my supervisor.”  We also find the major duties and responsibilities in PD 9G816 consistent with the performance expectations outlined in the DoD NSPS performance appraisal (DD Form 2906) provided by the claimant.

DD Form 2906 shows three primary “job objectives:”  (1) “manage the Sexual Assault Response for Sheppard AFB;” (2) “[d]evelop and implement a Sexual Assault Prevention Training Program” in accordance with DoD Instruction 6495-2; and (3) function as a supervisor over the staff assigned to her.  The first duty is shown as occupying 50 percent of the claimant’s time, the second duty 35 percent of the time, and the third duty 15 percent of the time.

These objectives mesh closely with the major duties listed in the PD of record.  Duty 1 states the claimant serves as the installation’s SARC “developing and managing prevention and support programs and activities for sexual assault and other areas of interpersonal violence and victim needs, as directed by the commander.”  Among the functions listed under this duty are: developing plans, programs, guidelines, and budgets; assessing the installation’s need for the establishment and/or modification of processes, procedures, contacts, and training to carry out the program and meet program objectives; developing and/or modifying installation plans, milestones, and evaluation measures to ensure meeting goals and objectives; developing and implementing a communication strategy to expand awareness of sexual assault and, in conjunction with the Family Advocacy Office (FAO), domestic violence; developing opportunities for command emphasis on core values and positive behavior; seeking, analyzing, and documenting input from interested parties about the program and making recommendations to concerned program officials including the vice commander and headquarters level program manager, as appropriate, for modifications to the Air Force program and practices; evaluating procedures, results, relationships, and interactions to improve mission accomplishment, implement quality improvements, or in response to concerns about statutory and regulatory compliance and/or customers requirements; and ensuring compliance with reporting requirements defined in the implementing instructions.

Duty 2 states the claimant ensures the development and implementation of prevention programs relating to sexual assault.  Among the functions listed under this duty are:  participating with the Family Advocacy Program Manager in domestic violence prevention activities; serving as an advisor to the Community Action Information Board and the commander’s consultant on institutionalizing core values; consulting on and coordinating activities in other areas of human relations needing prevention efforts; serving as the point-of-contact for ongoing prevention, education, and training for all base personnel, leadership, and deploying personnel; ensuring the delivery of mandatory training and assessing needs specific to the installation population; assisting individual commanders in identifying unit training needs; identifying the need for and sources of training and obtaining or providing the training; providing and/or obtaining initial and ongoing training of volunteer victim advocates (VA); and assisting in or providing training for first responders to sexual assault reports.

Duty 3 states the claimant develops, implements, and maintains an installation victim support system.  Among the functions listed under this duty are:  developing a response system which may include a sexual assault response team approach; ensuring use of the case management system required by DoD directive and AF instruction; contacting and arranging for the full range of installation support services; e.g., medical, security and chaplain, and off-base services; e.g., crisis centers and community support groups, needed to support the needs of individual alleged victims and the program to ensure the availability of 24-hour victim advocacy services; ensuring the availability of trained volunteer VAs “24 hours each day and 365 days a year”; recruiting, screening, interviewing, and selecting VAs from military members, AF civilian employees, and AF spouses, informing the wing commander of selections; periodically assessing VA training needs; evaluating VAs’ level of knowledge; developing a VA recognition program; and assigning individual VAs to victims or ensuring a system of assignment is in place.  Other listed functions include: supporting victim needs through VAs and ensuring the continuity of care, including support if the victim moves to another installation or leaves the AF; publicizing and advertising reporting procedures for sexual assault in particular; ensuring information on both on- and-off-base assistance is available; serving as on-scene representative to coordinate the efforts of investigating agencies and VAs; keeping victims and other appropriate personnel informed of case status; working with military and civilian law enforcement units to establish protocol and procedures to ensure 24-hour notification of a VA in all incidents of alleged sexual assault, participation in safety planning, and establishment or modification of safety measures; developing Memorandums of Understanding with appropriate authorities and community resources to ensure a desirable standard of care for AF personnel seeking off-base support; interfacing with FAO staff to facilitate shared prevention efforts; and interfacing with local and State authorities and other AF Major Commands as appropriate.

Duty 4 states the claimant serves as the installation commander’s consultant for all sexual assault issues and represents the commander and vice commander on committees, working groups, at conferences, and in community meetings.  The claimant keeps the vice commander informed of issues, program status, areas in need of improvement, etc., as well as case management and installation climate, and the status of victim care and any assistance needed that is not being provided by base agencies.

The first duty is shown as occupying 30 percent of the claimant’s time, the second duty 30 percent of the time, the third duty 20 percent of the time, and the fourth duty 20 percent of the time.

Evaluation of FLSA Coverage

The claimant refers to and relies on having her “response” work in dealing with victims, during and after hours, as properly categorized as a “First Responder” meeting the requirements of DoL’s “First responders and the Part 541 Exemptions” under the FLSA.  However, as a Federal employee, the claimant is subject to the FLSA regulations issued by OPM in part 551 of 5 CFR as provided for under 29 U.S.C. 204(f).  OPM’s administration of the FLSA must comply with the terms of the FLSA but the law does not require OPM’s regulations to mirror the Department of Labor’s FLSA regulations.  OPM’s administration of the FLSA must be consistent with DOL’s administration of the FLSA only to the extent practicable and only to the extent that this consistency is required to maintain compliance with the terms of the FLSA. 

Case law indicates that due to the peculiar nature of the statutory framework surrounding federal employment, it is reasonable for OPM’s regulations to vary from Labor Department standard.  See e.g., Billings v. United States, 322 F.3d 1328 (Fed. Cir. 2003). As such, the law does not require OPM’s regulations be perfectly consistent with DOL’s FLSA regulations.  OPM regulations are controlling for covered Federal employees as Congress gave OPM independent authority to regulate FLSA for covered Federal employees.  While there is legislative history indicating that OPM should administer the FLSA “in such a manner as to assure consistency” with DOL regulations and policies, there is no such requirement in the FLSA itself.  While OPM attempts to be consistent with DOL’s FLSA regulations, generally OPM utilizes FLSA guidance from DOL for instructive purposes only. Thus, the claimant is not covered by and may not rely on DoL’s FLSA regulations to advance her claim.

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:  Each employee is presumed to be FLSA nonexempt.  Exemption criteria must be narrowly construed to apply only to those employees who are clearly within the terms and spirit of the exemption.  The burden of proof rests with the agency which asserts the exemption.  If there is a reasonable doubt as to whether an employee meets the criteria for exemption, the employee should be designated FLSA nonexempt.  The designation of a position’s FLSA status ultimately rests on the duties actually performed by the employee.  Our analysis of the claimant’s duties follows.  Because the claimant’s duties did not substantially change during the claim period, and in the interests of providing a complete analysis of the claim, we have analyzed the claim under the applicable versions of the regulations in effect during the claim period.[2]  Neither the claimant nor the agency asserts the claimant’s work was covered by the professional exemption as detailed in 5 CFR 551.207 and, based on careful review of the record, we agree.  Therefore, our analysis will be limited to the executive and administrative exemptions in effect during the period of the claim.

I.  Executive Exemption Criteria

A. 1998 Regulations

Under the executive exemption criteria in 5 CFR 551.205 (1998), in effect at the beginning of the claim period, an executive employee is a supervisor or manager who manages a Federal agency or any subdivision thereof (including the lowest recognized organizational unit with a continuing function) and customarily and regularly directs the work of subordinate employees and meets both of the following criteria:  (a) the primary duty test, and (b) the 80 percent test.

The agency states the claimant’s SARC position is a supervisory position which satisfies the executive exemption criteria because:

she customarily and regularly directed the work of …[the] Deputy SARC [a military officer], and …[the] Sexual Assault Prevention and Response Assistant, 2 full-time employees.  She also directed the work of…a reservist, and some 20 Victim Advocates.  Additionally, she has the authority to make personnel changes that included but were not limited to selecting, removing, advancing in pay, or promotion of subordinate employees, or had the authority to suggest or recommend such actions; and customarily exercised discretion and independent judgment in such activities as work planning and organization, work assignment, direction, review and evaluation, and other aspects of management of subordinates, including personnel administration.

In contrast, the claimant states her authority over the Deputy SARC identified in the AAR “was severely limited and did not include the authority to discipline, remove, promote or reassign.”  The claimant states she had limited supervisory authority over the reservist and that she had no input to the reservist’s “appraisal/job review."  The claimant also states the Sexual Assault Prevention and Response Assistant was “on extended sick-leave during 2007-2008 and upon her return was detailed to another position” not under the claimant’s supervision.

(a) The primary duty test is met if the employee: 

(1) has authority to make personnel changes that include, but are not limited to, selecting, removing, advancing in pay, or promoting subordinate employees, or has authority to suggest or recommend such actions with particular consideration given to these suggestions and recommendations; and

(2) customarily and regularly exercises discretion and independent judgment in such activities as work planning and organization; work assignment, direction, review, and evaluation; and other aspects of management of subordinates, including personnel administration.  

The primary duty test is not met. 

The record shows the claimant directed a recognized organizational unit.  However, the appellant did not supervise two or more employees as defined in the FLSA required to meet the executive exemption.  Under 5 CFR 551.104, employee is defined, inter alia, as a person who is employed as a civilian in an executive agency as defined in 5 U.S.C. § 105 or as a civilian in a military department as defined in 5 U.S.C. § 102.  Under 5 CFR 551.103(b)(4), a member of the Uniformed Services is not covered by the FLSA.  Therefore,the military staff cited by the agency, including the Deputy SARC and the reservist, may not be considered as employees for purposes of the FLSA.

Under 5 CFR 551.103(b)(3), a volunteer is not covered by the FLSA and, thus, may not be considered an employee for purposes of the FLSA.  As defined in 5 CFR 551.104, a volunteer means a person who does not meet the definition of employee and who volunteers or donates his or her service, the primary benefit of which accrues to the performer of the service or to someone other than the agency, and under which circumstances there is neither an expressed nor implied compensation agreement.  Services performed by such a volunteer include personal services that, if left unperformed, would not necessitate the assignment of an employee to perform them.[3]  Thus, VAs are volunteers under the FLSA and may not be considered as employees for purposes of applying the executive exemption to the claimant’s work.[4]  The Sexual Assault Prevention and Response Assistant was the only employee who was supervised by the claimant under the provisions of the FLSA.

(b) The 80 percent test makes special provisions for employees in positions properly classified as GS-5 or GS-6; firefighting or law enforcement employees in positions properly classified at GS‑7, GS-8, or GS-9 who are subject to section 207(k) of title 29 U.S.C.; and supervisors in Federal Wage System positions classified below situation 3 of Factor 1 of the Federal Wage System Job Grading Standard for Supervisors.  These employees must spend 80 percent or more of the work time in a representative workweek on supervisory and closely related work to meet this test. 

The 80 percent test in 5 CFR 551.205(b) is not appropriate for the claimant’s position.  

Thus, we conclude the claimant did not meet the executive exemption under the 1998 regulations.

B. 2007 Regulations

Under the current FLSA regulations, effective October 17, 2007, 5 CFR 551.205 provides:

(a) an executive employee is defined as an employee whose primary duty is management (as defined in 5 CFR 551.104) of a Federal agency or any subdivision thereof (including the lowest recognized organizational unit with a continuing function) and who: 

(1) Customarily and regularly directs the work of two or more other employees; and

(2) Has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees, are given particular weight. 

(b) Particular weight.  Criteria to determine whether an employee’s suggestions and recommendations are given particular weight by higher-level management include, but are not limited to:  Whether it is part of the employee’s job duties to make such suggestions and recommendations; the frequency with which such suggestions and recommendation are made or requested; and the frequency with which the employee’s suggestions and recommendations are relied upon.  Generally, an executive’s suggestions or recommendations must pertain to employees whom the executive customarily and regularly directs.  Particular weight does not include consideration of an occasional suggestion with regard to the change in status of a co-worker.  An employee’s suggestions and recommendations may still be deemed to have particular weight even if a higher level manager’s recommendation has more importance and even if the employee does not have authority to make the ultimate decision as to the employee’s change in status.

As defined in 5 CFR 551.104, management means performing activities such as interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or financial records for use in supervision or control; appraising employees’ productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment, or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures. 

The claimant’s work did not meet the executive exemption criteria under the current regulations.  Her primary duties did not constitute management as defined in 5 CFR 551.104 because she did not fully perform any of the activities listed.  Although she directed the work of Federal civilian employee VAs, as previously discussed the VAs were volunteers for purposes of the FLSA and, thus, cannot be considered employees for purposes of 5 CFR 551.104 or 5 CFR 551.205.  Also as previously discussed she did not customarily and regularly direct the work of two or more other employees as defined for purposes of the FLSA.

Thus, we conclude the claimant did not meet the executive exemption under the 2007 regulations. 

II.  Administrative Exemption Criteria 

A. 1998 Regulations

Under the administrative exemption criteria contained in 5 CFR 551.206 (1998), in effect at the beginning of the claim period, an administrative employee is an advisor or assistant to management, a representative of management, or a specialist in a management or general business function or supporting service and meets all four of the following criteria:

(a)    Primary duty test.  The primary duty test is met if the employee’s work (1) significantly affects the formulation or execution of management programs or policies; or (2) involves management or general business functions or supporting services of substantial importance to the organization serviced; or (3) involves substantial participation in the executive or administrative functions of a management official.

(b)   Nonmanual work test.  The employee performs office or other predominantly nonmanual work which is (1) intellectual and varied in nature; or (2) of a specialized or technical nature that requires considerable special training, experience, and knowledge.

(c)    Discretion and independent judgment.  The employee frequently exercises discretion and independent judgment, under only general supervision, in performing the normal day-to-day work. 

(d)   80-percent test.  In addition to the primary duty test that applies to all employees, General Schedule employees in positions properly classified at GS-5 or GS-6 (or the equivalent level in other white collar pay systems) must spend 80 percent or more of their work time in a representative work week on administrative functions and work that is an essential part of those functions to meet the 80-percent test.

The primary duty test is met.

The first element of the primary duty test is met because the claimant’s primary and paramount SARC function was to formulate and execute the local SARC programs, including its policies.  As defined in section 5 CFR 551.104 (1998), formulation or execution of management programs or policies means work that involves management programs and policies which range from broad national goals expressed in statutes or Executive orders to specific objectives of a small field office.  Employees make policy decisions or participate indirectly, through developing or recommending proposals acted on by others.  Employees significantly affect the execution of management programs or policies typically when the work involves obtaining compliance with such policies by other individuals or organizations, within or outside of the Federal Government, or making significant determinations furthering the operation of programs and accomplishment of program objectives.  Administrative employees engaged in such work typically perform one or more phases of program management (that is, planning, developing, promoting, coordinating, controlling, or evaluating operating programs of the employing organization or of other organizations subject to regulations or other controls). 

The claimant’s supervisors stated they relied on the claimant to manage the SARC program on their behalf.  To this end, the claimant determined how to plan and structure the program’s work, including how to use the VAs and her assigned military staff, including deciding who would respond to telephone calls from victims, and who would accompany victims transported for medical or other emergency treatment or meet them at the treatment site.  These decisions included deciding to who would carry and respond to the victim hot line cell phone and who would be assigned to each new case.  The claimant estimated a new case arose every nine days.  The claimant’s program management duties also included planning and executing the large-scale training program needed to reach the large military student population of approximately 5,000 on-base at any time and a base population of approximately 15,000 active duty personnel, students, and others.  She determined how to brief approximately 250 new airmen each week, deciding on the resources needed to conduct the briefings and how to structure the briefing to reach the intended audience.  The claimant’s performance standards reflect these program management responsibilities.  In addition to managing the response to sexual assaults, described in the claimant’s PD as occupying 50 percent of her time, the performance plan states the claimant would:

Develop and implement Sexual Assault Training Prevention Training Program IAW DoDI 6495-2.  Provide effective awareness education to the base population, first responders, and post trauma support agencies, focusing especially on Airmen-in-Training, our most at-risk-population.  Develop and use creative techniques and methods to help improve effectiveness.  Annually conduct Sexual Assault awareness activities and establish professional relationships with on- and off-base agencies and assist with victim advocacy groups to educate, track trends and promote Sexual Assault awareness.   

The claimant’s efforts to treat her hands-on victim support duties as a separable primary duty is misplaced.  For purposes of the FLSA, primary duty is singular and establishes the primary and paramount purpose of the employee’s work.  Although discussed in relationship to supervisory duties in the 1998 regulations, activities in which both workers and supervisors are required to engage themselves are considered to be closely related to the primary duty of the position.  Thus, the direct victim support work performed by the claimant must be construed as closely related to her SARC function and must be included in the calculation of her exempt program management primary duty.

The claimant’s reference to DoL’s “First Responder” regulations to nonexempt her hands-on victim support duties is misplaced since she may not rely on DoL’s regulations as discussed previously.  However, we will address this issue since it is the underpinning of her claim.

Section 541.3(b)(1)of 29 CFR states:

The section 13(a)(1) exemptions and the regulations in this part also do not apply to police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees, regardless of rank or pay level, who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work.

With regard to the executive exemption, 29 CFR 541.3(b)(2) states such employees are not exempt since their primary duty is not management and does not meet the requirements of 29 CFR 541.100.  Section 541.3(b)(3) of 29 CFR states “[s]uch employees do not qualify as exempt administrative employees because their primary duty is not the performance of work directly related to the management or general business operations of the employer or the employer’s customers as required under § 541.200.”  However, as noted in Federal Register, Vol. 69, No. 79, Friday, April 23, 2004, page 22130, in which DoL responded to comments on its proposed FLSA regulations defining and delimiting the exemptions for executive, administrative, professional, outside sales, and computer employees:

Federal courts have found high-level police and fire officials to be exempt executive or administrative employees only if, in addition to satisfying the other pertinent requirements, such as directing the work of two or more other full time employees as required for the executive exemption, their primary duty is performing managerial tasks such as evaluating personnel performance; enforcing and imposing penalties for violations of the rules and regulations; making recommendations as to hiring, promotion, discipline or termination; coordinating and implementing training programs; maintaining company payroll and personnel records; handling community complaints, including determining whether to refer such complaints to internal affairs for further investigation; preparing budgets and controlling expenditures; ensuring operational readiness through supervision and inspection of personnel, equipment and quarters; deciding how and where to allocate personnel; managing the distribution of equipment; maintaining inventory of property and supplies; and directing operations at crime, fire or accident scenes, including deciding whether additional personnel or equipment is needed.  See, e.g., West v. Anne Arundel County, Maryland, 137 F.3d 752 (4^th Cir.) (EMT captains and lieutenants), cert. denied, 525 U.S. 1048 (1998); Smith v. City of Jackson, Mississippi, 954 F.2d 296 (5th Cir. 1992) (fire chiefs); Masters v. City of Huntington, 800 F. Supp. 363 (S.D.W. Va. 1992) (fire deputy chiefs and captains); Simmons v. City of Fort Worth, Texas, 805 F. Supp. 419 (N.D. Tex. 1992) (fire deputy and district chiefs); Keller v. City of Columbus, Indiana, 778 F. Supp. 1480 (S.D. Ind. 1991) (fire captains and lieutenants).

The claimant’s decision to perform victim support work assignable to VAs and other program staff reflects the exercise of exempt program management authority and does not change the primary purpose of her work from exempt to nonexempt.  As the SARC, the claimant was responsible for formulating local program policies, making policy decisions, and/or recommending proposals that were acted on by her supervisor.  As an exempt administrative employee, the claimant performed all of the phases of program management described above, e.g., planning, coordinating, or evaluating operating programs.

The claimant also meets the second element of the primary duty test because her work involved management or general business functions or supporting services of substantial importance to the organization serviced.  As defined in 5 CFR 551.104 (1998), management or general business function or supporting service, as distinguished from production functions, means the work of employees who provide support to line managers.  (1) These employees furnish such support by (i) Providing expert advice in specialized subject-matter fields, such as that provided by management consultants or systems analysts; (ii) Assuming facets of the overall management function, such as safety management, personnel management, or budgeting or financial management; (iii) Representing management in such business functions as negotiating and administering contracts, determining acceptability of goods or services, or authorizing payments; or (iv) Providing supporting services, such as automated data processing, communication, or procurement and distribution of supplies.  (2) Neither the organizational location nor the number of employees performing identical or similar work changes management or general business functions or supporting services into production functions.  The work, however, must involve substantial discretion on matters of enough importance that the employee’s actions and decisions have a noticeable impact on the effectiveness of the organization advised, represented, or serviced. 

The claimant’s work met the criteria because her work involved providing a management support function of substantial importance to the base as defined above.  The SARC function is a staff function similar to human resources management or financial management.  It is intended to assist SAFB line managers to proactively prevent sexual assaults or other areas of personal violence from happening and acts as the commander’s agent to ensure victims receive the full range of support services they need.  As stated in Duty 1, the claimant was expected to serve as the “commander’s consultant and coordinator for Wingman support activities involved in the institutionalization of respect and the Air Force core values.”  At SAFB this was complicated by the challenge of inculcating such values and behaviors in the large military student population.  The claimant’s representational duties included representing the commander and vice commander on committees, working groups, at conferences, and in community meetings.  These duties also included developing Memorandums of Understanding with appropriate authorities and community resources to ensure a desirable standard of care for AF personnel seeking off-base support; interfacing with FAO staff to facilitate shared prevention efforts; and interfacing with local and State authorities and other AF Major Commands as appropriate.  Thus, we find the appellant’s work met the second element of the primary duty test.

The claimant’s work did not meet the third element of the primary duty test because her work did not involve substantial participation in the executive or administrative functions of a management official.  As defined in 5 CFR 551.104 (1998), participation in the executive or administrative functions of a management official means the participation of employees, variously identified as secretaries, administrative or executive assistants, aides, etc., in portions of the managerial or administrative functions of a supervisor whose scope of responsibility precludes personally attending to all aspects of the work.  This is not descriptive of the type and nature of the work the claimant performed as SARC.

The nonmanual work test is met.

We find the claimant’s SARC functions met the first element of the nonmanual work test because it was intellectual and varied in nature.  As defined in 5 CFR 551.104 (1998), work of an intellectual nature means work requiring general intellectual abilities, such as perceptiveness, analytical reasoning, perspective, and judgment applied to a variety of subject-matter fields, or work requiring mental processes which involve substantial judgment based on considering, selecting, adapting, and applying principles to numerous variables.  The employee cannot rely on standardized application of established procedures or precedents, but must recognize and evaluate the effect of a continual variety of conditions or requirements in selecting, adapting, or innovating techniques and procedures, interpreting findings, and selecting and recommending the best alternative from among a broad range of possible actions.

The SARC program required understanding and applying knowledge of multiple subject-matter fields that cross several social science and related occupations.  The work required knowledge of adult education and training sufficient to plan for and deliver program briefings to a wide variety of adult audiences; knowledge sufficient to assess the need and provide for the full range of psychological and medical support for victims of sexual assault; knowledge of the investigative and judicial requirements related to the handling of sexual assaults; and knowledge of program planning and management techniques, principles, and practices sufficient to conduct an activity-level SARC program.  The claimant was required to apply substantial judgment based on considering, selecting, adapting, and applying principles to numerous variables in managing the SARC program.  Although she was required to operate the program within the parameters of DoD and AF regulations, her program management responsibilities required her to evaluate and determine the most effective way of implementing the program tailored to meet the needs of SAFB’s diverse targeted populations, including successive groups of military students.  As discussed in Duty 1 of the PD, the claimant was expected to establish and/or modify processes, procedures, and training necessary to meet program objectives.  The claimant’s performance standards state the claimant was to “develop and use creative techniques and methods to improve [the program’s] effectiveness.”  This could not be accomplished by relying on application of standardized procedures or well-established techniques and precedents outlined in agency standards.  Program goals extended beyond making audiences aware of sexual assault issues to dealing with such related issues as domestic violence and inculcating AF core values in military students described in the claimant’s performance standards as SAFB’s “most at-risk-population.”  The claimant’s performance self-assessment for the period of October 1, 2007, to September 30, 2008, speaks to the claimant’s focus on program improvement, including (1) changing the setting for law enforcement interviews of victims which “[v]ictims, SARC, Advocates and Special Agents all agree is leading to better statements and less traumatized victims,” (2) creating a “password protected case management meeting tool” requested for use by other SARC offices and the FAO, and (3) developing a strategic plan linking sexual assault education and awareness programming, on-call case availability, funding, key partnership meetings, and special event planning with victim based events to ensure victims were supported and program goals were met.  Thus, we find the claimant’s SARC work was intellectual and varied in nature.

The claimant’s nonmanual work as discussed previously met the second element of the nonmanual work test.  As defined in 5 CFR 551.104 (1998), work of a specialized or technical nature means work which requires substantial specialized knowledge of a complex subject matter and of the principles, techniques, practices, and procedures associated with that subject-matter field.  This knowledge characteristically is acquired through considerable on-the-job training and experience in the specialized subject-matter field, as distinguished from professional knowledge characteristically acquired through specialized academic education.

As SARC, the claimant applied a substantial knowledge of subject-matter common to several social sciences concerning adult behavior as it relates to sexual assault, domestic violence, and related areas of human interaction sufficient to manage the SARC program.  This knowledge extended to preventing and dealing with the aftermath of sexual assault and domestic violence and provided continuity of care for the victims of both restricted and unrestricted sexual assault.  In order to reach her intended audiences, the claimant had to apply the principles and practices of adult training sufficient to modify and/or develop program training tailored to specific audiences.  As SARC, development of such knowledge and skill resulted from considerable specialized program training required for all SARCs and on-the-job training and discussions with others in the program, including the Command SARC.  As discussed under “Recruitment Knowledges, Skills and Abilities (KSA)” in the claimant’s PD of record, the work of the position required knowledge of a wide range of social science principles, concepts, and practices relating to the prevention of and response to sexual assault and other acts of interpersonal violence; knowledge of social service delivery systems and concepts, principles, and theories relating specifically to sexual assault and other acts of interpersonal violence; and knowledge of laws, regulations, Executive orders, etc., relating to victim advocacy, sexual assault, and other acts of interpersonal violence. 

The discretion and independent judgment test is met.

The claimant exercised the level of discretion and independent judgment to meet this test.  As defined in 5 CFR 551.104 (1998), discretion and independent judgment means work that involves comparing and evaluating possible courses of conduct, interpreting results or implications, and independently taking action or making a decision after considering the various possibilities.  However, firm commitments or final decisions are not necessary to support exemption.  The “decisions” made as the result of independent judgment may consist of recommendations for action rather than the actual taking of action.  The fact that an employee’s decisions are subject to review, and that on occasion the decisions are revised or reversed after review, does not mean the employee is not exercising discretion and independent judgment of the level required for exemption.  Work reflective of discretion and independent judgment must meet the following three criteria:

(1)   The work must be sufficiently complex and varied so as to customarily and regularly require discretion and independent judgment in determining the approaches and techniques to be used, and in evaluating results.  This precludes exempting an employee who performs work primarily requiring skill in applying standardized techniques or knowledge of established procedures, precedents, or other guidelines which specifically govern the employee’s action. 

(2)   The employee must have the authority to make such determinations during the course of assignments.  This precludes exempting trainees who are in a line of work which requires discretion but who have not been given authority to decide discretionary matters independently. 

(3)   The decisions made independently must be significant.  The term “significant” is not so restrictive as to include only the kinds of decisions made by employees who formulate policies or exercise broad commitment authority.  However, the term does not extend to the kinds of decisions that affect only the procedural details of the employee’s own work, or to such matters as deciding whether a situation does or does not conform to clearly applicable criteria. 

As SARC, the claimant worked independently in performing her daily activities, including planning, organizing, and executing the SAFB SARC program sufficient to meet the degree of discretion and independent judgment characteristic of this test.  The claimant’s supervisors both stated they relied on the claimant to manage the program independently.  One supervisor stated the SARC program was in the “process of being constructed” at the time the claimant occupied the SARC position, that program regulations and instructions had gaps, and that he relied on the claimant to deal with these gaps and to elevate the issues and propose solutions to the Command SARC.  Both supervisors relied on the claimant to advise them on technical program issues and to represent SAFB with on-post and external organizations to arrange for and provide victim support services.  The decisions the claimant made were significant within the meaning of the regulation in that they affected how the program was managed, including how to use program staff and resources, and what adjustments needed to be made to training materials and approach to reach discrete audiences.  These decisions were not solely limited to the procedural details of her work.    

The 80-percent test in 5 CFR 551.206(d) (1998) is not applicable. 

Because the claimant’s position is classified above the GS-5 or GS-6 or equivalent grade level, this criterion does not apply to the claimant’s work.

Thus, we conclude the claimant met the administrative exemption under the 1998 regulations.

B.  2007 Regulations

The current regulation under 5 CFR 551.206 (2007), 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;

(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.  

*                      *                      *                      *                      *

(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 claimant’s work met the administrative exemption criteria of the current regulation.  As discussed previously, the claimant’s program management duties included the exercise of discretion and independent judgment with respect to matters of significance.  Also as discussed previously, as the SARC the claimant’s supervisors expected her to interpret and implement DoD and AF program policies as well as develop and implement local program policies and procedures as necessary to achieve broad program goals.  The claimant’s performance self-assessment for the period of October 1, 2007 to September 30, 2008, discussed previously speaks to these responsibilities.  Although she managed a small staff program, nonetheless her work affected SAFB’s efforts as a training installation to institutionalize AF core values in its large military student population.  The claimant represented SAFB in arranging for victim support services with community organizations for AF personnel seeking off-base support and worked with other AF components, as discussed in the aforementioned self assessment, to improve program quality and victim support.  The claimant’s supervisors viewed her as a program expert, and depended on her advice on technical and administrative program matters.  They relied on her to develop and propose both short- and long-term program plans specific to SAFB as discussed previously in this decision.

Thus, we conclude the claimant met the administrative exemption under the 2007 regulations.

Decision on FLSA Coverage

Based on the above analysis, and the general principles governing exemptions provided in 5 CFR 551.202 (of both 1998 and 2007 regulations), the claimant clearly met the criteria for the administrative exemption provided in 5 CFR 551.206 (of both the 1998 and 2007 regulations) during the period of the claim and therefore was not covered by the overtime pay provisions of the FLSA.  Therefore, her claim for FLSA overtime must be denied.

Since the claimant was exempt during the period of the claim, she was also not covered by the provisions of 5 CFR 551.431 for time spent on standby duty or in an on-call status or the compensatory time off provisions of 5 CFR 551.531.  Therefore, we will not address these or any of the other premium pay issues raised by the claimant.  As an exempt employee, any entitlement the claimant may have to the premium pay she seeks must be pursued through the compensation and leave claim provisions of 5 CFR, Part 178.

Back to Top