Washington, D.C.

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

---

Kimberly A. Steide, DPA
Principal Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance

07/07/2025

---

Date

Introduction

On January 29, 2024, OPM received an FLSA claim from the claimant, who from October 28, 2018, through February 11, 2024, served as a Telecommunication Specialist GS-0391-11 with the 55th Cyberspace Squadron (55th CS), Air Combat Command (ACC):1C, Enterprise IT (EIT): CTE, U.S. Department of the Air Force, Offutt AFB, Nebraska. We received the agency administrative report (AAR) on March 12, 2024, and 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.).

Background and general issues

On February 10, 2015, the agency classified the claimant’s Telecommunication Specialist position as exempt under the FLSA (i.e., not covered by the overtime pay provisions of the Act) based on the administrative exemption criteria established in 5 CFR 551.206. However, on June 26, 2023, the agency reclassified the claimant’s position as FLSA non-exempt (i.e., covered by the overtime pay provisions of the Act), yet provided no clear rationale for initially classifying the position as exempt. In its AAR to OPM, the agency states, in relevant part:

…[PD #R16519] was certified by management on [September 8, 2014] and classified by Air Force Personnel Center (AFPC) on [February 10, 2015] with a FLSA code of exempt. As noted in the PD, the AFPC Classification Office stated this PD is FLSA exempt under 5 U.S.C.§ 551.206 Administrative exemption criteria…

The claimant does not disagree with the agency’s decision to change his FLSA status from exempt to non-exempt. However, the claimant asserts the agency failed to pay him the difference between his normal hourly wage and the FLSA overtime (OT) pay he earned during the claim period. The claimant also notes that his FLSA exempt status during the claim period resulted in his agency offering him only compensatory time off (CTO) instead of OT. According to statements made by the claimant, he accepted and used some, but not all, of the CTO granted by the agency. Nothing in the record indicates the agency took action to determine any potential entitlement to back pay for FLSA OT or for any unused CTO the claimant may have earned during the claim period.

As stated, the claimant believes he is owed back pay for FLSA OT hours he worked during the claim period. He also believes he is owed back pay in the form of FLSA OT for the difference between CTO hours offered and used by him and for any unused CTO hours authorized by the agency during the claim period. He states, in relevant part:

…I should be paid at the OT rate for [CT] hours since I was not given the correct rate of compensation…Both the claimant and the supervisor initially certified to the accuracy of the claimant’s official PD during the claim period (PD #R16519).

However, in interviews with OPM, both the claimant and the supervisor identified duties, responsibilities, and authorities described in the PD which were not assigned to or performed by the claimant during the claim period. For example, the PD indicates the claimant was assigned program and project management responsibilities, such as coordinating the actions for carrying out telecommunications projects including the development, monitoring, and management of project milestones and determining the actions of various program functions. However, the claimant did not serve as a program or project manager during the claim period.

The PD indicates the claimant performed a variety of Federal contract-related oversight and liaison work during the claim period, such as serving in a liaison capacity between contractors and Air Force officials to resolve a wide variety of conventional problems involving high value telecommunications systems; developing statements of work for telecommunications projects; reviewing plans and specifications, developing programming and/or funding documents, and resolving questionable aspects of vendor proposals; providing technical review of design, calculations, cost estimates, implementation dates, and specifications for negotiation and/or administration of contracts; monitoring contractor performance and developing reports on the contractor’s technical quality performance; and coordinating with contractors and Air Force officials to resolve a wide variety of problems involving high value telecommunication systems. However, the claimant was not responsible for monitoring, liaising, or coordinating Federal contract-related work or projects during the claim period. Instead, these duties and responsibilities rested with the Contract Officer, program and project managers, the Chief of Technical Control (COTC), or higher-level officials within the agency.

The PD indicates the claimant was responsible for a variety of financial and budgetary functions, such as performing special staff and/or feasibility studies and economic analysis to determine systems requirements; reviewing plans and specifications for adequate analysis and justification of requirements, realistic cost estimates, and implementation dates, and considering supporting requirements such as scheduling deliveries, availability of installation and test personnel, site preparation, and similar concerns; surveying existing and/or proposed services for efficiency and economy; preparing budgetary data in support of programs/projects; and preparing budget, technical reports, staff studies, and briefings. However, the claimant was not responsible for the aforementioned financial and budgetary functions during the claim

period. Instead, these financial and budgetary functions and responsibilities rested with the supervisor, project and program managers, COTC, or higher-level officials within the agency.
The PD indicates the claimant was responsible for short and long-range planning and policy-related processes, such as planning and developing methods, procedures, policies, and techniques concerning telecommunication systems and developing planning documentation. However, the claimant was not assigned these responsibilities. Instead, responsibility for short and long-range planning and policy-related processes rested with higher-level officials within the agency.

The PD ascribed a number of technical duties not performed by the claimant during the claim period, such as designing networks and systems, conducting operational acceptance tests, and coordinating the allocation of resources. However, the claimant was not responsible for these tasks during the claim period.
The PD states the claimant possessed what seems to be supervisory responsibilities, such as resolving problems and delays, adjusting schedules, and diverting personnel and equipment to meet critical milestones. However, the claimant was not assigned these responsibilities. Instead, these responsibilities rested with the supervisor, project and program managers, the COTC, and higher-level officials within the agency.

Position information

The 55th Cyberspace Squadron is responsible for employing cyber defense capabilities to protect critical missions and infrastructure and for ensuring timely and reliable information across the full spectrum of conflict. During the claim period, the claimant served as a Telecommunication Specialist GS-0391-11, within the 55th Cyberspace Squadron and reported directly to the Chief, Technical Control Facility (CTCF), who had full authority to assign, direct, review, and accept or reject the claimant’s work.

The claimant followed established processes and guidelines, such as agency policies (e.g., Defense Information System Agency (DISA)), protocols, implementing directives, manuals, handbooks, site plans, equipment specifications, software characteristics, and detailed work procedures and directives and sought permission from his supervisor or higher-level agency officials prior to deviating from established processes and guidelines. Within the parameters of established guidelines and supervisory direction, the claimant independently performed a variety of telecommunication technical support tasks requiring application of standardized telecommunication concepts, principles, methods, and techniques; an understanding of the specific characteristics and availability of telecommunication equipment and services; and an understanding of the unique telecommunication requirements of the 55th CS.

The claimant applied knowledge of current telecommunication hardware and software and the compatibility and availability of new systems to identify and resolve a variety of standard telecommunication technical issues. He communicated with Employees within the 55th CS, office or related work units to obtain, clarify, and provide facts and/or technical and procedural information to resolve a variety of Telecommunication-related problems. He coordinated with program and project managers and subordinate personnel to provided telecommunication technical support to various 55th CS programs and projects.
The claimant participated in technical discussions related to 55th CS telecommunication issues and provided technical observations, advice, and recommendations when appropriate and provides telecommunication technical support to various 55th CS projects and programs. He maintained a variety of records (e.g., databases and logs) associated with his telecommunication work and developed and distributed related reports.

In reaching our FLSA decision, we have carefully reviewed all information gained through documents and information provided by both the claimant and the agency and through separate interviews with the claimant and his supervisor.

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)).

OPM received the claim on January 29, 2024. However, internal agency e-mail communications show that the claimant, through his supervisor, had been questioning the servicing Human Resources office and higher-level agency officials concerning the FLSA status of his position as early as August 10, 2022. Therefore, we find the claim was preserved effective August 10, 2022.

Willful violation

In his claim to OPM, the claimant expresses the belief that his agency willfully violated the FLSA. His claim states, in relevant part:

…Language from the Department of Labor states that back pay may be recovered for a two-year period or three-years for willful violations. The applicable period in this case should be three years prior to the earliest email I have from personnel discussing the miscategorization (1 0AUG2019) since my management was made aware of the issue and did not correct it.

The term “willful violation” is defined in 5 CFR 551.104 as follows:

Willful violation means a violation in circumstances where the agency knew that its conduct was prohibited by the Act or showed reckless disregard of the requirements of the Act. All of the facts and circumstances surrounding the violation are taken into account in determining whether a violation was willful.

Clearly not all violations of the FLSA are willful as this term is defined in the regulation. The agency acknowledges it erred in the claimant’s original exemption status determination, basing the FLSA exemption determination solely on the claimant’s standardized PD, rather than the actual duties, responsibilities, and authorities assigned to, and performed by, the claimant during the claim period. However, to prove willful violation, there must be evidence that the agency knew its conduct was prohibited by the Act or showed reckless disregard of the FLSA requirements. After a careful review, OPM finds the agency simply erred in its initial exemption status determination of the claimant’s position by failing to fully consider and evaluate the limited nature of his authority and responsibility in his actual duties performed as opposed to those described in his PD. Once the claimant’s concerns were brought to the attention of the AF personnel center, they reviewed the claimant’s work and corrected his FLSA exemption status. Therefore, we conclude the agency’s actions were not deliberate and do not meet the criteria for willful violation as defined in 5 CFR 551.104. Consequently, the claim is subject to a two-year statute of limitations. Thus, the claim date is preserved effective August 10, 2022, and the claim period commences on August 10, 2020.

Evaluation 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) 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.

The agency did not provide OPM with documentation showing its rationale for determining the initial FLSA exemption status of the claimant’s position effective February 10, 2015, or their reclassification of the position’s FLSA exemption status effective June 26, 2023.

There are three primary exemption categories applied to Federal employees: executive, administrative, and professional. Neither the claimant nor the agency asserts that the claimant’s work during the claim period was covered by the executive or professional exemption and based on careful review of the record, we agree. Therefore, our analysis is limited to the administrative exemption criteria in effect during the claim period.

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;

(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.

An examination of the duties performed, and authorities held, by the claimant indicates the work does not meet the administrative exemption criteria. During the claim period, the claimant did not perform a support function of substantial importance to the agency as envisioned in 5 CFR 551.206. Instead, his primary duties were limited to providing telecommunication technical support to the 55th CS and related processes and customers. In contrast to the administrative exemption criteria, his work did not involve the application of discretion and independent judgment to matters of significance with respect to the management of the agency’s general business operations.

Unlike the administrative exemption, the claimant’s telecommunication technical duties were not an extension of the organization’s management process and did not help with or affect the management of significant matters within the agency. Instead, his duties affected the specific functional task he performed during day-to-day operations for the 55th CS. Unlike the administrative exemption, the scope and effect of the claimant’s duties were limited to 55th CS programs and processes. Furthermore, his telecommunication technical duties constitute only one element of the larger spectrum of the line work performed within his command.

Unlike the administrative exemption, the claimant did not exercise discretion and independent judgment with respect to matters of significance as addressed in the ten factors listed in 5 CFR 551.206(b). He had no authority to formulate, affect, interpret, or implement management policies or operating practices at the agency-level. Such authority rested with his supervisor or higher-level AF officials. Instead, the claimant performed telecommunication technical support for the 55th CS, which did not affect the organization overall operation to a substantial degree. He had no authority to commit the organization to matters with significant financial impact or to waive or deviate from established agency policies, procedures, and well-established protocol without prior approval from his supervisor or higher-level agency management. He lacked the authority to negotiate and bind the organization concerning significant matters, he did not consult with and provide expert advice to agency management, and he was not involved in planning the agency’s long or short-term organizational objectives.

Also, unlike the administrative exemption, he did not investigate and resolve matters of significance on behalf of agency management, nor was he authorized to represent any level of the agency (e.g., 55th CS, ACC, EIT: CTE, or AF) in handling complaints, arbitration of disputes, or resolution of grievances against these organizations. Instead, these responsibilities rested with his supervisor or higher-level management within the agency.

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

Compensatory time

Guidelines for agency use of CTO for non-exempt work is outlined under section 550.114 of the CFR. It states:

Section 550.114 of the CFR states, in relevant part:

(a) At the request of an employee who is not exempt under subpart B of this part, the head of an agency (or designee) may grant compensatory time off from an employee's tour of duty instead of payment under § 551.501 for an equal amount of irregular or occasional overtime work.

(b) At the request of an employee, as defined in 5 U.S.C. 2105, the head of an agency may grant compensatory time off from an employee's basic work requirement under a flexible work schedule under 5 U.S.C. 6122 instead of payment under § 551.501 of this part for an equal amount of overtime work, whether or not irregular or occasional in nature.

The agency incorrectly classified the claimant’s position as FLSA exempt during the claim period (i.e., August 10, 2020, through August 10, 2022). As a result, it offered only CTO as compensation for overtime hours worked by the claimant. Section 550.114, of title 5 C.F.R., indicates the value of an hour of compensatory time off is equal to the overtime hourly rate that is payable in dollars. The claimant believes he is owed compensation for the difference between FLSA OT pay and the regular pay afforded to him for all used and unused CTO credited to him during the claim period. Contrary to the claimant’s belief, used CTO hours constitutes full compensation by an agency for corresponding overtime hours.

However, 5 CFR 550.114(b), indicates that CTO must be requested by the non-exempt employee. Neither the claimant nor the agency has provided documentation showing the claimant has requested CTO in lieu of FLSA OT for overtime hours worked during the claim period. Consequently, the claimant has the right to exchange any unused CTO hours earned during the claim period for FLSA OT.

Decision on FLSA coverage and compliance instructions

The claimant’s work meets none of the exemption criteria detailed in 5 CFR 551.205 through 551.217 including the administrative criteria, as discussed above. Therefore, his position is nonexempt and covered by the overtime pay provisions of the FLSA and he is entitled to compensation for all overtime hours worked during the claim period at the FLSA OT pay rate as detailed in 5 CFR 551.501(a).

The agency must reconstruct the claimant’s pay records for the period of the claim (i.e., August 10, 2020, through August 10, 2022), and compute back pay for the FLSA overtime pay owed as well as any interest due on the back pay, as required under 5 CFR 550.805 and 550.806, respectively. In addition, the claimant has the option of requesting FLSA OT pay for any unused CTO during the claim period which the agency has already granted in lieu of FLSA OT. The agency must reconstruct the claimant’s pay records and calculate the difference between any CTO already paid, and the total amount of CTO owed the claimant during the claim period and compensate him accordingly. 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 him, he may file a new FLSA claim with this office.

Back to Top