Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
Office of Equal Rights
Federal Emergency Management Agency
U.S. Department of Homeland Security
Baton Rouge, Louisiana
Damon B. Ford
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
09/06/2022
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). 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 instructions in this decision, then, pay the claimant any amount owed her. If the claimant believes that the agency has incorrectly computed the amount owed her, she may file a new FLSA claim with this office. 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).
On February 7, 2022, OPM’s Merit System Accountability and Compliance received a Fair Labor Standards Act (FLSA) claim from Ms. Monique D. McCrary requesting a review of her position’s FLSA designation and backpay for 86 hours of overtime worked during emergency deployments from June 5, 2021 to February 7, 2022, when she served as a Civil Rights Analyst (CRA), IM-0160-03 reservist with the Civil Rights Division (CRD), Office of Equal Rights (OER), Federal Emergency Management Agency (FEMA), U.S. Department of Homeland Security (DHS) in Baton Rouge, Louisiana. We received the agency administrative report (AAR) on February 17, 2022 and 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.).
The agency asserts the claimant’s duties during the claim period meet the FLSA’s executive exemption criteria (5 CFR 551.205) based solely on duties and responsibilities described in the claimant’s standardized position description (PD), PD# RES200, which they believe demonstrates authority, discretion, and independent judgment with regard to the supervision of subordinate CRD employees.
However, the claimant asserts that, during the claim period, she was a “trainee” and as such did not exercise authority, discretion, and independent judgment with regard to the supervision of subordinate CRD employees. Therefore, she believes her position should be FLSA nonexempt and estimates the agency owes her 86 hours of FSLA backpay for overtime hours worked by her while deployed for FEMA emergencies during the claim period.
The applicability of the FLSA differs depending on an individual’s roles and relationship within a Federal agency. Section 551.104 of title 5 CFR defines “trainee”, in relevant terms, as a person attached to a Federal activity [primarily for the purpose of training] who is entitled neither to payment of wages from the agency for the time spent in training nor to a job at the completion of their training period; and is not considered a “Federal employee” for purposes of the FLSA. However, this same section defines “employ” meaning “to engage a person in an activity that is for the benefit of an agency” and “employee” meaning a person who is employed “as a civilian in an Executive agency, as defined in section 2105 of title 5, United States Code.” Based on documents provided by the agency (e.g., claimant’s payroll records and Notification of Personnel Action Standard Form 50s) and information provided by the claimant and her supervisor, OPM determined that during the claim period, the claimant was employed as a developmental “employee” who performed an activity that was for the benefit of an Executive agency (i.e., FEMA) through her work as a reservist Civil Rights Analyst. Therefore, the claimant’s role and relationship with FEMA was as an “employee” for purposes of this FLSA claim decision.
During interviews with OPM, both the claimant and her immediate supervisor identified duties and responsibilities in the claimant’s official PD which were overstated or not performed by the claimant during the claim period. For example, the PD emphasizes the authority and responsibility of the position for enforcement of civil rights laws, regulations, and guidelines;
… enforces the incorporation of civil rights principles in all stages of a disaster response, recovery, and long-term activities…;
… enforce FEMA’s commitment to equitable and impartial delivery of its programs and activities and equitable and impartial delivery of programs and activities funded by FEMA…;
…implement systems, structures, and processes within the disaster operation to enforce civil rights compliance that no member of the public shall be, denied the benefits of, deprived of participation in, or discriminated against in any program or activity carried out by FEMA…;
…[is responsible for] enforcement of civil rights jurisdiction in connection with programs and services provided by FEMA and by recipients of FEMA financial assistance under the following authorities, included Sections 308 and 309 of the Stafford Act; Title VI of the Civil Rights Act; Sections 504 and 508 of the Rehabilitation Act; Age Discrimination Act of 1975; Title IX of the Education Amendments Act of 1972; 44 C.F.R. Parts 7, 16, and 19; 44 C.F.R. § 206.11; Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency;” and Executive Order 12898, “Environmental Justice in Minority and Low-Income Populations…; and
…administering the Agency’s civil rights compliance and enforcement procedures outlined in 44 CFR Part 7, part 16 and applicable compliance-related issues and processes regarding information and communications technology, brought under the provisions of section 508 of the rehabilitation act…
However, both the supervisor and the claimant confirmed that, during the claim period, the claimant had neither the authority nor the responsibility to enforce civil rights laws, regulations, or guidelines to agency and/or non-agency personnel during FEMA emergency deployments. Instead, the claimant was a developmental employee, whose primary role during FEMA emergency deployments was to work with local organizations to gather disaster-related data and information (i.e., community assessments) necessary to identify groups or individuals who may be at-risk of not receiving the full range of benefits provided or funded by FEMA programs (e.g., people with speech, visual, mobility, or cognitive disabilities or with limited English proficiency) and to develop and submit plans for the mitigation of these issues in accordance with established guidelines.
The PD credits the claimant’s position with significant levels of authority, discretion, and independent judgment regarding FEMA civil rights programs. For example, the PD states the position:
…ensures equitable and impartial delivery of FEMA’s [civil rights] programs, services and benefits through research, planning, project management and organizing tools to provide civil rights complaint data and trend analyses to senior leadership…
… ensure FEMA’s commitment to nondiscrimination based on disability in FEMA-conducted and FEMA-assisted [civil rights] programs and activities…
However, during the claim period, the claimant was not assigned nor did she exercise the authority, discretion, and independent judgment for FEMA civil rights programs described in her official PD. Instead, as a developmental employee, the claimant utilized established Federal, State, local and agency guidelines, as well as guidance and direction from her immediate supervisor, to identify and address basic civil rights issues during FEMA emergency deployments.
The PD credits the claimant’s position with a variety of supervisory duties and responsibilities, including discipline, task assignments, technical training and direction, and performance evaluations of subordinate employees:
…brief subordinate staff on information relevant to their assignments and evaluate performance, communicate any deficiencies, and take corrective action, depending on the size and scope of the disaster and staffing requirements…
…provide guidance, direction, and training to subordinate staff on the requirements under civil rights laws, regulations, and guidance about OER Civil Rights policies, procedures, and practices and to investigate complaints alleging discrimination, depending on the size and scope of the disaster, and staffing requirements…
However, the claimant’s supervisor verified that, during the claim period, the claimant was a developmental civil rights analyst who was neither assigned nor exercised supervisory duties and responsibilities.
The PD states the position develops and provides guidance, technical assistance, and training proactively through outreach and upon request to support agency-wide understanding of and responsibility for civil-rights-related obligations in any program or activity carried out by FEMA or funded by FEMA. However, although the claimant provides basic civil rights information and guidance to disaster survivors and representatives of State and local organizations on an as-needed basis during assigned FEMA disaster deployments, both the supervisor and the claimant verified that she was not responsible for providing agency-wide guidance, technical assistance, and training concerning FEMA’s civil-rights-related obligations during the claim period.
CRD is a component of FEMA’s OER and is responsible for implementing and supporting FEMA’s civil rights programs. The claimant is a reservist Civil Rights Analyst attached to CRD who performs a variety of duties in support of FEMA civil rights policies and programs.
She complies with established Federal laws and regulations (e.g., Sections 308 and 309 of the Stafford Act; Title VI of the Civil Rights Act; Sections 504 and 508 of the Rehabilitation Act; Age Discrimination Act of 1975; Title IX of the Education Amendments Act of 1972; 44 C.F.R. Parts 7, 16, and 19; 44 C.F.R. § 206.11; Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency;” and Executive Order 12898, “Environmental Justice in Minority and Low-Income Populations); and FEMA policies and standard operating procedures (SOP) to identify and address civil rights issues during assigned FEMA emergency deployments.
She performs community assessments to identify vulnerable populations; gathers disaster-related data and information (e.g., population demographics, and available supplies and services); coordinates with representatives of State and local governments to facilitate community outreach and address the needs of disaster survivors; and develops plans to mitigate disaster-related civil rights issues and submits community assessments and mitigation plans to her supervisor for consideration, correction, and further action.
She identifies disaster-related populations with limited English proficiency and works with FEMA’s Office of External Affairs to translate information necessary for them to understand and obtain needed disaster-related benefits and services.
She provides basic civil rights information and guidance to disaster survivors and to applicable representatives of State and local organizations during assigned FEMA disaster deployments.
She reviews OER enforcement and outreach activities and special initiatives designed to eliminate discrimination in intra-and inter-agency work groups during the implementation of FEMA civil rights programs and provides observations and recommendations to her supervisor.
In reaching our FLSA decision, we have carefully reviewed all information gained through separate interviews with the claimant, her supervisor, and her servicing Human Resources (HR) office, as well as documents and information provided by the claimant and her agency.
As provided for in 5 CFR 551.702(b), all FLSA claims filed 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 and the record shows the claimant did not file a claim with her agency. Therefore, we find the claim was preserved effective February 7, 2022, when OPM received the claim, and the claim period commences on February 7, 2020.
Sections 551.201 and 551.202 of title 5 CFR require an employing agency to designate an employee FLSA exempt only when the agency correctly determines that the employee meets one or more of the exemption criteria. In all exemption determinations, the agency must observe the following principles: (a) each employee is presumed to be FLSA nonexempt unless the employing agency correctly determines that the employee clearly meets the requirements of one or more of the exemptions. (b) Exemption criteria must be narrowly construed to apply only to those employees who are clearly within the terms and spirit of the exemption. (c) The burden of proof rests with the agency that asserts the exemption. (d) If there is a reasonable doubt as to whether an employee meets the criteria for exemption, the employee will be designated FLSA nonexempt. (e) While established PDs 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. Our analysis of the claimant’s actual duties follows.
The agency asserts that the authority, discretion, and independent judgment described in her standardized PD meets the executive exemption criteria of the FLSA. Neither the agency nor the claimant asserts her position meets any of the other exemptions detailed in 5 CFR part 551, and based on careful review of the record, we agree. However, authority, discretion, and independent judgment are also indicative of the FLSA’s administrative exemption criteria. Therefore, we have evaluated the claimant’s actual duties during the claim period against the executive and administrative exemption criteria.
I Executive exemption criteria
Under the current FLSA regulations, 5 CFR 551.205 defines an executive employee as:
(a) An executive employee is 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). Primary duty, as defined in 5 CFR 551.104, typically means the duty that constitutes the major part (over 50 percent) of an employee’s work. A duty constituting less than 50 percent of an employee’s work (alternative primary duty) may be credited as the primary duty for exemption purposes provided that duty: (1) Constitutes a substantial, regular part of the work assigned and performed; (2) Is the reason for the existence of the position; and (3) Is clearly exempt work in terms of the basic nature of the work, the frequency with which the employee must exercise discretion and independent judgment as discussed in 5 CFR 551.206, and the significance of the decisions made. An executive employee performs the following:
(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 an employee’s job duties to make such suggestions and recommendations; the frequency with which such suggestions and recommendations are made or requested; and the frequency with which the employee’s suggestions and recommendations are relied upon. Generally, an executive’s suggestions and 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 duties actually performed by the claimant during the claim period do not meet the executive exemption criteria. Unlike this exemption, the claimant’s primary duty is not management. She was a developmental employee during the claim period and was not customarily and regularly responsible for directing the work of two or more other employees, nor did she possess the authority to hire or fire other employees or to suggest or recommend the hiring, firing, advancement, promotion, or any other change of status for other employees during the claim period. Furthermore, because she was a developmental employee, suggestions and recommendations provided by her are not given particular weight by her supervisor or higher-level management. Therefore, the claimant’s duties during the claim period do not meet the executive exemption criteria.
II 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 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 duties actually assigned to and performed by the claimant during the claim period do not meet the administrative exemption criteria. Unlike this exemption, the claimant’s duties were not an extension of the agency’s management process and did not help with or affect the management of significant matters within her agency. Unlike this exemption, the claimant was not a full performance employee whose responsibilities included the performance of support functions of substantial importance to FEMA. Instead, the claimant was a developmental employee whose duties were closely monitored by her first-line supervisor and focused on and were limited to the provision of technical and administrative support for FEMA’s civil rights programs during assigned FEMA emergency deployments.
As a developmental employee, the claimant was neither assigned nor did she exercise discretion and independent judgment with respect to matters of significance as addressed in the ten factors of 5 CFR 551.206. For example, she lacked the authority to formulate, affect, interpret, or implement management policies or operating practices at the CRD, OER, or higher levels within the agency; commit the agency with regard to matters with significant financial impact or to waive or deviate from established CRD, OER, or FEMA policies, procedures, and well-established protocol without prior approval from her supervisor or higher-level FEMA management; negotiate and bind her agency concerning significant matters; consult with or provide expert advice to FEMA management; and was not involved in planning long or short-term organizational objectives for FEMA. She also lacked the authority to investigate and resolve matters of significance on behalf of management and was not authorized to represent FEMA in handling complaints, arbitration of disputes, or resolution of grievances against the organization. These responsibilities were vested with her supervisor or higher-level management within CRD, OER, or FEMA. Therefore, the duties performed by the claimant during the claim period do not meet the administrative exemption criteria.
Based on the preceding analysis, the work performed by the claimant during the claim period meets neither the executive nor administrative exemption criteria and is therefore nonexempt and covered by the provisions of the FLSA.
The actual duties performed by the claimant during the claim period do not meet the executive or administrative exemption criteria. Therefore, all work performed by the claimant during the claim period was nonexempt and covered by the overtime pay provisions of the FLSA 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. 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 this 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.