Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
Patient Care Services
Erie Veterans Affairs Medical Center
Department of Veterans Affairs
Erie, Pennsylvania
Robert D. Hendler
Classification and Pay Claims
Program Manager
Merit System Audit and Compliance
11/08/2011
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 OPM administers the Act. The agency should identify all similarly situated current and, to the extent possible, former employees, to ensure that they are treated in a manner consistent with this decision. There is no further right of administrative appeal. This decision is subject to discretionary review only under conditions 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 this decision.
Introduction
The claimant requests the exemption status of her position be changed from exempt to nonexempt under the Fair Labor Standards Act (FLSA) and that she be paid overtime pay at an uncapped rate from May 10, 2009, to present. She occupies the position of Supervisory Diagnostic Radiologic Technologist, GS-647-10, at the Veterans Affairs Medical Center (VAMC), in Erie, Pennsylvania. We have accepted and decided this claim under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).
We received the claim on January 24, 2011, and the agency’s administrative report on March 1, 2011. In reaching our decision, we have carefully reviewed all information furnished by the claimant and her agency, including information from a telephone interview with the claimant on July 8, 2011.
Background
The claimant’s believes she should be designated FLSA nonexempt for the time she performs nonsupervisory work and, thus, is challenging the executive exemption status determination made by her agency. The claimant is employed as a title 38 hybrid employee. Her Functional Statement divides her duties between diagnostic radiologic technologist (DRT) duties and supervisor/managerial duties, each being performed 50 percent of the time. Her position requires her to be “on-call” on a rotational basis. She states that when she is “on call” she is working in a capacity which does not meet any of the FLSA exemption criteria, and that the overtime hours she works involve the same duties performed by other nonsupervisory DRT’s who receive uncapped FLSA overtime. She believes her position should be designated as FLSA nonexempt minus the percentage of time she performs supervisory duties. The claimant states:
During the 50% of my duties that I function as a supervisor, I receive no overtime compensation. However, during the 50% of my duties functioning as a Radiologic Technologist I am required to be on call, covering the facility’s emergent diagnostic needs during off-tour hours. During this time, 100% of my overtime accrual is obtained in the role of direct patient care as an x-ray/CT Technologist, called in during emergent needs of the facility, performing labor intensive, non-administrative duties 100% of the time. The Human Resource Department at my VAMC has determined that my overtime is capped, even though I am performing identical duties as those nonexempt employees who are receiving uncapped overtime pay and higher on call pay rates.
The claimant asserts her claim is valid under section 551.211 of title 5, Code of Federal Regulations (CFR), Effect of performing different work or duties for a temporary period of time on FLSA exemption status. This section indicates that performing different work or duties for a temporary period of time may affect an employee’s exemption status provided certain criteria are met.
General issues
In support of her claim, the claimant cites OPM FLSA decisions, F-0850-12-01 and F-0810-12-02, in an attempt to assert that she performs nonexempt emergency work constituting more than 20 percent of her time each workweek, and therefore she too should be considered nonexempt for the entire workweek, as was the case in the referenced decisions.
The claimant may not rely on previous OPM-issued FLSA claim decisions. This prohibition is made clear on http://www.opm.gov/flsa/about.asp#not:
How NOT to Use Our FLSA Claim Decisions -- The FLSA claim decisions posted on these pages do not substitute for application of our FLSA regulations and are not "case law." These decisions should not be used as the basis for other FLSA claims because these decisions do not provide enough information for direct application in other FLSA claims.
The claimant’s reliance on these prior decisions is further undermined by the fact they reflect the application of regulations replaced effective October 17, 2007. Current FLSA regulations no longer contain the 20 percent rule upon which the claimant relies. Furthermore, the FLSA jurisdiction of OPM is limited to consideration of legal and regulatory liability. OPM has no authority to authorize payments based on consideration of equity determined by case-to-case comparison.
In the claimant’s response to the agency report, she states: “I cordially request that my GS grade level be adjusted to that of at least a GS 11 since I meet and exceed all criteria in the General Schedule Supervisory Guide.”
Although OPM has the authority to review the classification of a position at an employee’s request under 5 U.S.C. § 5112, the claimant’s position is no longer covered by the General Schedule (GS). Although the VA continues to use GS designations, DRT’s are appointed under the provisions of 38 U.S.C. § 7401(3) and have their compensation set under the provisions of 38 U.S.C. § 7451. As a result, the claimant is no longer covered by the position classification provisions of chapter 51 of title 5, U.S.C., and thus has no standing to appeal the classification of the position she occupies to OPM under 5 U.S.C. § 5112.
Position information
The claimant balances supervisory duties and DRT duties during normal duty hours of 8:00 a.m. to 4:30 p.m. As a Supervisory Diagnostic Radiologic Technologist, she manages and supervises the Diagnostic Radiologic staff. She provides technical and administrative supervision to four DRT’s, GS-647; one Medical Support Assistant, GS-679; and one Medical Instrument Technician, GS-649. She performs a full range of administrative duties including evaluating employee performance, delegating work, setting priorities, approving leave, making recommendations for promotions and awards, investigating disciplinary problems, and counseling subordinates. She has the responsibility for planning, developing, and directing the General, CAT scan, Ultrasound, and DEXA (Dual Energy X-ray Absorptiometry) operations of Radiology. This includes responsibility for managing all electronic and non-electronic patient imaging files and working closely with information technology staff to ensure image processing, transfer and archiving functions meet requirements. The claimant reports directly to the Chief of Clinical Services.
In her February 18, 2011, "Certification of Functional Statement," the claimant’s supervisor states:
As a DRT she [the claimant] is required to take call and be available for emergency x-ray procedures. She averages approximately 70 hours of on call availability each week and about 20 hours of earned overtime performing emergency procedures weekly. All overtime earned is in the role of a diagnostic radiology technician performing emergency radiology procedures.
The supervisor also states the claimant “does not perform supervisory duties while on call or in an overtime status.” The Functional Statement contains additional descriptive information on the work the claimant performs and we incorporate it by reference into this decision.
Evaluation of FLSA coverage
Section 551.202 of title 5, Code of Federal Regulations (
There are three exemption categories primarily applied to Federal employees: executive, administrative, and professional, found in Subpart B of part 551 of title 5, CFR.
The agency determined the claimant’s work is exempt from coverage under the FLSA based on the executive exemption criteria set forth in 5 CFR 551.205. Neither the claimant nor the agency assert the claimant’s work is covered by the administrative or professional exemptions and, based on careful review of the record, we concur. Therefore, our analysis is primarily limited to the executive exemption criteria in effect during the claim period.
Executive Exemption Criteria
Under the executive exemption criteria contained in 5
(1) Customarily and regularly directs the work of two or more other employees.
(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.
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.
Recognized organizational unit means an established and defined organizational entity which has regularly assigned employees and for which a supervisor is responsible for planning and accomplishing a continuing workload. This distinguishes supervisors from leaders of temporary groups formed to perform assignments of limited duration. 5 CFR 551.104.
Primary duty 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;
(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, and the significance of the decisions made.
5 CFR 551.104.
Customarily and regularly means a frequency which must be greater than occasional but which may be less than constant. 5 CFR 551.104.
The criteria used 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 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. 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. 5 CFR 551.205(b).
The claimant is an executive employee whose primary duty is management of a Federal agency or any subdivision thereof.
The claimant supervises the Imaging Service which is a recognized organizational subdivision with a continuing function and with regularly assigned employees. She performs such management functions as directing the work of subordinates, overseeing the assignment and completion of work by subordinates, evaluating employees’ performance, hearing employee complaints and grievances, recommending pay raises, approving leave, and resolving work-related problems posed by subordinates, customers, or higher-level management.
The claimant’s primary duty is management. Her duties include work planning and organization; work assignment, direction, review, and evaluation; and other aspects of managing subordinates and personnel administration. She plans and organizes the work of the unit, making assignments based on functional expertise and arranging for the accomplishment of priority projects. She carries out a variety of personnel administration functions such as creating schedules, approving leave requests, recommending performance awards, “balancing score cards”, and completing actions items.
The claimant customarily and regularly directs the work of two or more other employees.
The claimant is responsible for the daily supervision of six civilian Federal employees on a customary and regular basis.
The claimant has the authority to hire or fire other employees and/or her suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees are given particular weight.
The claimant’s recommendations for the hiring, advancement, and/or promotion of employees, granting of awards, etc., for her unit are given particular weight and those recommendations are relied upon by the Chief of Clinical Services and in turn by the Chief of Staff.
Based on the above, the claimant meets the executive exemption criteria contained in 5 CFR 551.205 under the current regulations.
The primary duty test is met
Primary duty 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 the work may be credited as the primary duty for exemption purposes provided that duty:
(1) Constitutes a substantial, regular part of a position;
(2) Governs the classification and qualification requirements 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, and the significance of the decisions made.
The claimant states that her hands-on DRT overtime work is not “directly and closely related,” as defined in 5 CFR 551.104, to her role as a supervisor. The claimant’s attempt to treat her hands-on DRT 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. The claimant states that the amount of time she spends in a supervisory role might be close to 50 percent, but it often fluctuates. Although supervision may comprise less than 50 percent of the claimant’s time, it is nonetheless considered a substantial, regular part of the position and governs its classification and qualification requirements; i.e., supervision is the basis for the grade of the position and the associated recruitment qualifications. These supervisory duties are clearly exempt work in terms of the basic nature of the work, the exercise of discretion and independent judgment, and the significance of the decisions made as discussed below. Further, as discussed in 5 CFR 551.104, the definition of “directly and closely related” states: “Work which both workers and supervisors are required to perform is considered to be closely related to the primary duty of the position (for example, physical training during tours of duty for firefighting and law enforcement personnel) and is exempt work.”
“Supervisory/Managerial Duties” in the claimant’s functional statement include:
- Instructs employees in specific tasks and job techniques; obtains and makes available necessary instructions, references, supplies and resources to fulfill the service’s mission.
- Provides on-the-job training to new employees in accordance with established procedures and practices.
Thus, the claimant's supervisory functions require her to be able to train her subordinates to perform hands-on DRT duties. Since her position requires her to be able to perform the same hands-on work as her subordinates, these functions must be construed as directly and closely related to the primary duty of her position and are exempt work.
Because the claimant’s work meets the executive exemption criteria, no further evaluation against other exemption criteria is necessary.
Evaluation of other FLSA issues
The claimant cites 5 CFR 551.211, Effect of Performing Different Work or Duties for a Temporary Period of Time on FLSA Exemption Status, and states: “The primary duties significantly change during my off-tour non administrative overtime work…becoming vastly different to fulfill the requirements of a DRT performing direct patient care in a clinical setting.”
However, 5 CFR 551.211(a)(1)applies only when an employee must perform work or duties that are not consistent with the employee’s primary duties for an extended period, that is, for more than 30 days, referred to as the “30-day test.” As discussed previously, the record indicates that when the claimant worked overtime she performed a full range of general imaging procedures and these duties are directly and closely related to her primary supervisory responsibilities. Although 5 CFR 551.211(a)(1) is not applicable to the claimant’s situation, we also note there is no evidence in the record to indicate the aforementioned “30-day test” is met. Aggregation of more than 30 nonconsecutive calendar days over an extended period does not meet the 30-day test.
The claimant also appears to believe that she is operating in an emergency situation under 5 CFR 551.211(f) when she is on-call and states:
During the period of time in which overtime in question occurs, 100% of my overtime accrual is obtained in the role of direct patient care as an x-ray/CT technologist, being called in by the emergency room staff during times of emergent needs of the facility to perform diagnostic radiology procedures. These procedures are determined to be emergent (STAT) in nature and fall within the operational guidelines of Radiology Policy No. 1, stating that, “only procedures which are considered STAT, utilizing this order option only when a patient’s condition is deemed to be life-threatening or a critical medical decision is pending.”
The claimant cites Medical Center Memorandum No. 118-11, June 25, 2010, titled "Emergency Services," as serving “to clarify the classification process of issues which are considered to be of emergent care” in support of the “emergent nature” of her on-call work.
The Emergency situation criteria provided in 5 CFR 551.211(f) state:
…the agency may determine (emphasis added) that an emergency situation exists that directly threatens human life or safety, serious damage to property, or serious disruption to the operations of an activity, and there is no recourse other than to assign qualified employees to temporarily perform work or duties in connection with the emergency.
However, 5 CFR 551.211(f) must be read and applied in its entirety. Under 5 CFR 551.211(f)(2), the exemption status of an exempt employee, such as the claimant, “must be determined on a workweek basis.” As provided for in 5 CFR 551.211(f)(2)(i), an exempt employee “remains exempt for any workweek in which the employee’s primary duties for the period of emergency work are exempt as defined in this part.”
As discussed previously, the claimant’s on-call work is directly and closely related to her exempt supervisory duties. They may not be severed from those duties and, since they are a regular and recurring part of her regular work, may not be considered as work “temporarily” assigned as required to meet the basic provisions of 5 CFR 551.211(f).
Further, the record does not show that any of the claimant's work during the claim period was in response to an official, agency-declared emergency. The declaration of an emergency as provided in the cited portion of the regulation is permissive. The agency may, at its discretion, declare an emergency exists. The “emergency situation” criteria of 551.211(f) provide flexibility to agencies to effectively deal with immediate emergency requirements associated with major disasters, weather related catastrophes, etc., affecting substantial numbers of people, threatening major disruptions in essential services, serious property damage and/or significantly impeding agency operations. Without an agency-declared emergency, 5 CFR 551.211 is not operative, and the claimant’s coverage under its provision is precluded.
In the claimants response to the agency report she states “my duties fall under the same non-administrative work as other VAMC radiology supervisors, clinical services managers, and surgical supervisors, whom cover on-call…, but whom do not have their overtime capped due to an exemption status.” 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 VAMC supervisors and/or managers in making our decision. See 5
Decision
The claimant is properly designated as FLSA exempt.