Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
Damon B. Ford
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
09/05/2024
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 the instructions in this decision, then pay the claimant any amount owed. If the claimant believes the agency has incorrectly computed the amount owed him, he may file a new FLSA claim with this office. The servicing human resources office must submit a compliance report containing a Standard Form 50 showing the personnel action taken. Compliance action taken on this decision must be completed within 60 days of the date of this decision as provided for in 5 CFR 551.708(c)(1). The report must be submitted to OPM, Merit System Accountability and Compliance, Agency Compliance and Evaluation, Washington, DC, office.
On May 6, 2022, OPM received an FLSA claim from representatives of the claimant challenging the exemption status of his position and seeking the difference between the hours of non-FLSA overtime (OT) pay the claimant received and the FLSA OT pay rate for 100 OT hours he worked between April 2020 and April 2022. During part of this period, the claimant occupied an Industrial Hygienist, FG-0690-14, position (herein referred to as FG-0690-14, IH) and was assigned to the Environmental Occupational Safety and Health (EOSH) Team, Planning and Requirements Group, Eastern Service Center, Mission Support Services, East Point, Georgia, Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT), in College Park, Georgia. During another part of the claim period, he occupied an Industrial Hygienist, FV-0690-J, position (herein referred to as FV-0690-J, IH) and was assigned to the EOSH Program Support Center, Technical Services, Technical Operations Eastern Service Area (ESA), Atlanta, Georgia, FAA, DoT, in College Park, Georgia. During another part of the claim period, he was detailed to Unclassified Duties and was assigned to the EOSH Performance and Management Services Team, EOSH Integration Services Team, EOSH Services Group, Air Traffic Control Facilities, Technical Operations, Washington, DC, FAA, DOT, in College Park, Georgia. 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.).
The claimant disagrees with the exemption status determinations made by the agency. The agency determined the positions are exempt (i.e., not covered) by the overtime pay provisions of the FLSA, but the claimant believes they should be designated as nonexempt (i.e., covered) by the FLSA. He requests he be properly paid for OT hours worked as referenced above. 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.).
Background and General Issues
During the claim period, the claimant served in three positions. Between May 6, 2020, and October 10, 2020, he occupied an FG-0690-14, IH position and his assignment Standard Form (SF) 50 included position number ASOV3KY. However, the position document (PD)/job analysis tool (JAT) was not for the FG-0690-14, IH position, so it could not be used. The agency no longer retained the PD/JAT for the position, so it was not provided to OPM. Between October 11, 2020, and January 30, 2021, and again between July 1, 2021, and May 6, 2022, he occupied an FV-0690-J, IH position under standardized PD/JAT number AHFS6GJ, which was provided by the agency. Between January 31, 2021, and June 30, 2021, he was officially detailed to Unclassified Duties for six months and his assignment SF-50 included position number 00NO0PD. However, the record shows he performed the duties of his permanent (i.e., FV-0690-J, IH) position under standardized PD/JAT number AHFS6GJ part of the time and Unclassified Duties part of the time. The listing of Unclassified Duties provided by the agency did not describe the actual duties performed, so the listing could not be used. Additionally, the listing of Unclassified Duties provided by the claimant was for a different detail, so that listing could not be used.
The claimant states that due to the advent of the Coronavirus Disease 2019 (COVID-19) pandemic, the overtime hours he worked (later described in this decision) primarily involved overseeing and inspecting cleaning performed by contractors at various facilities. In adjudicating this claim, our primary concern is to make an independent decision about the FLSA exemption status of the claimant’s positions. We must make that decision solely by comparing the claimant’s duties and responsibilities to FLSA regulations and guidelines.
As discussed in 5 CFR 551.202(e), while established position descriptions and position titles “may assist in making initial FLSA exemption determinations, the designation of an employee as FLSA exempt or nonexempt must ultimately rest on the duties actually performed by the employee.” In adjudicating this claim we applied this principle.
Summary
In general, during the COVID-19 pandemic the claimant performed additional duties in support of an organizational effort to ensure air traffic control capacity remained. When an employee who reported to a staffed facility (i.e., FAA offices and control towers) tested positive for COVID-19, the facility was cleaned by a contractor. As an extension of his regular and recurring duties, the claimant could have been assigned to oversee the cleaning process. The Service Support Center (SSC) manager served as the coordinator and set up the date and time with the contractor to send workers to clean the facility. The claimant wore personal protective equipment (PPE) (e.g., safety boots, gloves, goggles, and a respirator) and ensured the FAA maintenance standard operating procedure was followed. For example, he ensured contractor personnel used cleaning chemicals in employee work areas approved by the Centers for Disease Control and Prevention (CDC). If the facility manager or designee and air traffic personnel were in the facility, they were isolated from the areas being cleaned. The claimant input the information (e.g., background information and the results of the cleaning process) in a report template before it was uploaded to the database that held such reports. Our discussion of the duties in each of the claimant’s positions follows.
FG-0690-14, IH position
As previously mentioned, the agency did not provide a PD/JAT for the FG-0690-14, IH position. Therefore, we limit our discussion to a description of the actual duties performed by the claimant while he occupied the position during part of the claim period.
The claimant provided support functions to the Safety and Environmental Compliance Managers (SECM) in the eastern service area (ESA) (i.e., Boston, New York, Washington, DC, Atlanta, Memphis, Jacksonville, and Miami Districts).
The claimant provided technical support regarding the Asbestos, Indoor Air Quality, and Occupational Medical Surveillance Programs. He responded to requests for information to safely plan work from the SECMs for the SSC managers related to the above programs. For instance, after a contractor company completed an asbestos abatement project within FAA office space, the claimant was contacted by the servicing SECM to verify an asbestos material landfill would receive the asbestos waste. In accordance with Occupational Safety and Health Administration (OSHA) and Environmental Protection Agency (EPA) regulations, the waste can only be sent to a landfill authorized to receive asbestos waste. The claimant researched the landfill on that State’s website to ensure it was authorized to receive such waste and informed the SECM. The claimant supplied FAA-specific standard operating procedures (SOP) to the SECMs, which were written plainly and required no interpretation. The SOPs covered topics that included environmental safety procedures to be followed to drill through floors with asbestos, and how indoor air samples should be taken when there were SSC employee complaints about foul or musty odors in the air, coughing, or headaches. If safety procedures were requested on a topic with no SOP, the claimant contacted the appropriate HQ Program Office section to discuss the guidance that should be provided in accordance with the circumstances. If an emergency, such as a hurricane, required deviation from FAA-established procedures, he worked closely with his supervisor and/or other management officials so guidelines were developed to fit the situation.
The claimant also provided Asbestos General Awareness and Indoor Air Quality Training after being notified the training was due. He also provided Indoor Air Quality Refresher Training to the subordinates of SSC managers. Based on staff availability, the claimant set-up a ZOOM or TEAMS call, put together (to include incorporating needed updates) and presented the training material, and provided the course information to the attendees. Each training session was based on the established requirements of the Federal agency(s) overseeing the program (i.e., OSHA and/or EPA). The claimant verified staff attendance and notified training program personnel and appropriate staff managers to ensure credit was given to attendees.
The claimant assisted SECMs with developing the statement of work (SOW) for contracts concerning asbestos and indoor air quality issues (e.g., surveys and removal), as requested. The SECM would forward the draft SOW to the claimant for review. He used established information regarding workplace health hazards and exposures to ensure required information was included (e.g., types of specialty/protective materials and equipment needed, certification/training requirements for contractor personnel, proper disposal of removed material requirements, and applicable FAA, State, and local regulatory requirements). The claimant returned the draft to the SECM after making any recommended changes.
FV-0690-J, IH position
Our review disclosed the duties described in the PD/JAT (AHFS6GJ) for this position are not completely accurate because it describes duties not performed by the claimant, performed by other FAA organizations, or were higher-level management duties. For instance, the claimant did not organize resources for large projects/programs/work activities. He did not direct and manage all health and industrial hygiene program objectives and goals for the service area. He did not acquire and allocate resources to accomplish activities within established schedules and budgetary requirements. The claimant did not develop new and innovative approaches, methodologies, and/or techniques or develop and deliver training on industrial hygiene topics. He did not conduct measurements using industrial hygiene meters and industrial hygiene sampling. The claimant did not represent FAA at national policy forums. The claimant did not develop new policies, procedures, or approaches. He did not create new solutions and policy interpretations. The claimant’s work was not typically reviewed only at completion for success in achieving planned results. He did not have broad discretion to ensure the alignment of organizational goals and policies and the requirements of projects or other work activities. The claimant’s work activities did not impact directly on the objectives of one or more organizational units, major subdivisions, line of business/staff office (LOB/SO), or impact on the objectives of the FAA.
The PD/JAT also overstates duties performed by the claimant. For instance, it states he provides direct project management. Rather, our fact-finding disclosed the claimant served as a project advisor. The PD/JAT states the claimant develops and executes programs in occupational safety and health. Instead, we found he only ensured compliance with the occupational safety and health programs.
The claimant stated he continued to perform the FG-0690-14, IH duties after he was reassigned to this FV-0690-J, IH position during part of the claim period, which we recognize in our application of the exemption criteria later in this decision.
For instance, he provided the same technical support functions to the SECMs in the ESA regarding the Asbestos, Indoor Air Quality, and Occupational Medical Surveillance Programs. He responded to requests for information to safely plan work from the SECMs for the SSC managers related to the above programs. Like the previous position, after a contractor company completed an asbestos abatement project within FAA office space, the claimant was contacted by the servicing SECM to verify an asbestos material landfill would receive the asbestos waste. He then researched information to identify a landfill on the State’s website authorized to receive the waste. The claimant supplied FAA-specific SOPs to SECMs, which were written plainly and required no interpretation. These covered topics that included environmental safety procedures to be followed to drill through floors with asbestos and how indoor air samples should be taken when there were SSC employee complaints about foul or musty odors in the air, coughing, or headaches. If safety procedures were requested on a topic with no SOP, the claimant contacted the appropriate HQ Program Office section to discuss the guidance that should be provided in accordance with the circumstances. If an emergency, such as a hurricane, required deviation from FAA-established procedures, he worked closely with his supervisor and/or other management officials so guidelines were developed to fit the situation.
Like his previous position, the claimant provided Asbestos General Awareness and Indoor Air Quality Training after being notified the training was due. He also provided Indoor Air Quality Refresher Training after being contacted by an SSC manager. All training tasks (including ZOOM and TEAMS meetings), procedures, administrative processes (reporting attendance), and references were identical to those described in training work previously performed in the FG-0690-14 position.
Like the FG-0690-14, IH position the claimant assisted SECMs with developing the SOW for contracts concerning asbestos and indoor air quality issues (e.g., surveys and removal), as requested. The SECM would forward the draft SOW to the claimant for review, and he used established information regarding workplace health hazards and exposures to ensure required information was included, as previously listed. The claimant returned the draft to the SECM after making any recommended changes.
Detail to Unclassified Duties
During this detail, the claimant spent up to 50 percent of the time performing the duties of his permanent (i.e., FV-0690-J, IH) position (excluding those described in his PD/JAT we found not performed), and up to 50 percent of the time performing “Unclassified Duties,” which was confirmed by the program managers who assigned work to the claimant.
Unclassified Duties
While detailed the claimant reported to a FAA HQ Manager and two program managers who assigned his duties. The program managers were accountable for the creation, dissemination, and implementation of HQ guidance pertaining to the EOSH subject matter for which they were responsible. One program manager oversaw the Hearing Conservation, Respiratory Protection, and Occupational Medical Surveillance and Recordkeeping Programs. The other program manager oversaw lead-based paint policy and guidance. The claimant assisted the program managers by updating or creating SOPs after they discussed what was needed. He pulled together and consolidated relevant guidance found in safety and health enforcement regulations (e.g., OSHA and EPA) and laid out the information so it was usable by those in the field (e.g., SECMs) and in accordance with the SOP template. After completion, the claimant forwarded the draft SOP to the appropriate program manager for review and comment. After program manager review, the SOP was forwarded to and reviewed by all HQ-level program managers and then by specific field personnel (e.g., Safety and Occupational Health Specialists). When finalized it was posted on the agency’s intranet. One example of an SOP developed by the claimant covered guidance on making minor repairs to drywall covered with lead paint on building interiors, including sections on pre-work procedures, waste handling, and PPE. The SOP listed the Federal regulations (i.e., OSHA and EPA), standards from the American National Standards Institute, and FAA-issued SOPs from which it was developed.
In reaching our FLSA claim decision, we carefully reviewed all information provided by the claimant, his representatives, and the agency, as well as information gained through interviews with the claimant and program managers covering the detail. However, we were unable to interview the claimant’s former supervisors when he occupied the FG-0690-14, IH and FV-0690-J, IH positions during parts of the claim period as one of them was not available and the other had retired.
As provided for in 5 CFR 551.702(b), all FLSA pay 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 or a claimant’s designated representative must submit a written claim to either the agency employing the claimant during the claim period 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 did not file a claim with the agency before filing with OPM. OPM received his claim on May 6, 2022, therefore it is subject to a two-year statute of limitations commencing on May 6, 2020. However, the claimant’s representatives seek FLSA overtime pay commencing in April 2020. Because that date exceeds the two-year statute of limitations it is time barred.
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. There are three exemption categories applied to Federal employees: executive (5 CFR 551.205), administrative (5 CFR 551.206), and professional (including learned professional) 5 CFR 551.207 and 208). In all exemption determinations, the agency must observe the following principles: (a) Each employee is presumed to be FLSA nonexempt unless the employing agency correctly determines that the employee clearly meets the requirements of one or more of the exemptions; (b) exemption criteria must be narrowly construed to apply only to those employees who are clearly within the terms and spirit of the exemption; (c) the burden of proof rests with the agency that asserts the exemption; (d) an employee who clearly meets the criteria for exemption must be designated FLSA exempt. If there is a reasonable doubt as to whether an employee meets the criteria for exemption, the employee should be designated FLSA nonexempt; and (e) while established position descriptions 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 FLSA evaluation of the claimant’s three positions held during the claim period follows.
FG-0690-14, IH position
The record for this position does not include a PD/JAT for the FG-0690-14, IH position, or a “Federal Aviation Administration (FAA) Fair Labor Standards Act (FLSA) Exemption Worksheet” which would have described the FLSA exemption designation made by the agency. However, the claimant’s assignment SF-50 shows the position designated FLSA exempt. After careful review of the actual duties performed by the claimant we disagree. Absent agency specific information on the basis for exemption, to support our conclusion we have applied the executive, administrative, and professional and learned professional exemption criteria to the work performed as addressed later in this decision.
FV-0690-J, IH position
As documented in the “Federal Aviation Administration (FAA) Fair Labor Standards Act (FLSA) Exemption Worksheet” dated July 30, 2020, the agency determined the claimant’s FV-0690-J, IH duties do not meet the executive criteria and the claimant, and his representatives do not disagree. After a careful review we concur with the agency thus have not addressed that criterion separately in our analysis. However, the agency determined the duties and responsibilities described in his PD/JAT meet the administrative, professional and learned professional exemption criteria of the FLSA, but the claimant disagrees. Therefore, our FLSA evaluation discussed later for this position is limited to the administrative, professional and learned professional exemption criteria.
Detail to Unclassified Duties
FV-0690-J, IH
As previously discussed, during part of this detail the claimant spent up to 50 percent of the time performing the duties of his permanent (i.e., FV-0690-J, IH) position. As documented in the “Federal Aviation Administration (FAA) Fair Labor Standards Act (FLSA) Exemption Worksheet” dated July 30, 2020, the agency determined the claimant’s FV-0690-J, IH duties do not meet the executive exemption criteria and the claimant and his representatives do not disagree. After careful review, we concur with the agency thus have not addressed that criterion separately in our analysis. However, the agency determined the duties and responsibilities described in his PD/JAT meet the administrative, professional and learned professional exemption criteria of the FLSA, but the claimant disagrees. Therefore, our evaluation discussed later for this part of the detail is limited to the administrative, professional and learned professional exemption criteria.
Unclassified Duties
The record does not include an accurate listing of the Unclassified Duties performed by the claimant up to 50 percent of the time during part of the detail. Additionally, we did not receive a “Federal Aviation Administration (FAA) Fair Labor Standards Act (FLSA) Exemption Worksheet” which would have described the FLSA exemption designation made by the agency. However, the claimant’s assignment SF-50 shows the position designated FLSA exempt. After careful review of the actual duties performed by the claimant we disagree. Absent agency specific information on the basis for exemption, to support our conclusion we have applied the executive, administrative, professional and learned professional criteria to the work performed as discussed later in this decision.
The current regulations in 5 CFR 551.205 establish the executive exemption criteria, in relevant part, as follows:
(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) 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.
Administrative exemption criteria
The current regulations in 5 CFR 551.206 establish the administrative exemption criteria, in relevant part, as follows:
An administrative employee is an employee whose primary duty is the performance of office or non-manual work directly related to the management or general business operations, as distinguished from production functions, of the employer or the employer’s customers and whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
(a) In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered. The term “matters of significance” refers to the level of importance or consequence of the work performed.
(b) The phrase discretion and independent judgment must be applied in light of all the facts involved in the particular employment situation in which the question arises. Factors to consider when determining whether an employee exercises discretion and independent judgment with respect to matters of significance include, but are not limited to, whether the employee:
(1) Has authority to formulate, affect, interpret, or implement management policies or operating practices;
(2) Carries out major assignments in conducting the operation of the organization;
(3) Performs work that affects the organization’s operations to a substantial degree, even if the employee’s assignments are related to operation of a particular segment of the organization;
(4) Has the authority to commit the employer in matters that have significant financial impact;
(5) Has authority to waive or deviate from established policies and procedures without prior approval;
(6) Has authority to negotiate and bind the organization on significant matters;
(7) Provides consultation or expert advice to management;
(8) Is involved in planning long-or short-term organizational objectives;
(9) Investigates and resolves matters of significance on behalf of management; and
(10) Represents the organization in handling complaints, arbitrating disputes, or resolving grievances.
(c) The exercise of discretion and independent judgment implies 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.
Professional and learned professional exemption criteria
The current regulation in 5 CFR 551.207 states that to qualify for the professional exemption, an employee’s primary duty must be the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction or requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
The current regulations in 5 CFR 551.208 (Learned professionals) state, in relevant part:
(a) To qualify for the learned professional exemption, an employee’s primary duty must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. The work must include the following three elements:
(1) The employee must perform work requiring advanced knowledge. Work requiring advanced knowledge is predominantly intellectual in character and includes work requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical or physical work. An employee who performs work requiring advanced knowledge generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances. Advanced knowledge cannot be attained at the high school level;
(2) The advanced knowledge must be in a field of science or learning which includes the traditional professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy, and other similar occupations that have a recognized professional status as distinguished from the mechanical arts or skilled trades where in some instances the knowledge is of a fairly advanced type, but is not in a field of science or learning; and
(3) The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction which restricts the exemption to professions where specialized academic training is a standard prerequisite for entrance into the profession. The best prima facie evidence that an employee meets this requirement is possession of the appropriate academic degree. However, the word “customarily” means that the exemption is appropriate for employees in such professions who have substantially the same knowledge level and perform substantially the same work as the degreed employees, but who attained the advanced knowledge through a combination of work experience and intellectual instruction. For example, the learned professional exemption is appropriate in unusual cases where a lawyer has not gone to law school, or a chemist does not possess a degree in chemistry. However, the learned professional exemption is not applicable to occupations that customarily may be performed with only the general knowledge acquired by an academic degree in any field, with knowledge acquired through an apprenticeship, or with training in the performance of routine mental, manual, mechanical, or physical processes. The learned professional exemption also does not apply to occupations in which most employees have acquired their skill by experience rather than by advanced specialized intellectual instruction. The position of Engineering Technician is an example of such an occupation where the employee collects, observes, tests and records factual scientific data within the oversight of professional engineers, and performs work using knowledge acquired through on-the-job and classroom training rather than by acquiring the knowledge through prolonged academic study.
FG-0690-14, IH position
As noted above, we are evaluating the actual duties of this position as compared to the executive, administrative, and professional and learned professional FLSA exemption criteria.
Executive exemption criteria
As described in 5 CFR 551.205 an executive employee is an employee whose primary duty is management of a Federal agency or any subdivision thereof. 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 in this position does not meet the executive exemption criteria. The claimant’s primary duties do not constitute management as defined in 5 CFR 551.104 because he did not perform any of the activities listed.
Based on the preceding analysis, the claimant’s work does not meet the executive exemption criteria.
Administrative exemption criteria
The claimant’s work in this position does not meet the administrative exemption criteria. While the claimant performed office or non-manual work, his duties were not an extension of the agency’s management process or general business operations and did not help with or affect the management of significant matters within the agency. Rather, the claimant primarily furnished technical support to SECMs regarding his assigned EOSH programs. In addition, he did not exercise discretion and independent judgment with respect to matters of significance as described in the ten factors of the regulation noted above. For example, he had no authority to formulate, affect, interpret, or implement management policies or operating practices at his level. Work that significantly affected the formulation or execution of policies or practices generally refers to employees who actually make policy, make policy decisions, or develop proposals that are acted on by others. This authority was outside the scope of the claimant’s position. Instead, he provided technical support to SECMs concerning his assigned programs and reviewed draft SOWs to ensure they included the EOSH requirements to be followed by contractor personnel.
The claimant did not carry out major assignments in conducting the operations of the organization. He worked specifically with ESA SECMs and provided technical support, so the SSC managers questions and concerns were resolved regarding his assigned safety programs within an organization that provided EOSH programmatic support to all the districts within the service area. The claimant carried out very specific requests for technical assistance, rather than major assignments in conducting the operations of his organization, thus his work did not affect the organization’s operations to a substantial degree. He did not have the authority to commit the employer in matters that had a significant financial impact. That authority rested with higher-level management officials.
The situations the claimant regularly dealt with did not require him to waive or deviate from established policies and procedures. He did not perform any work requiring him to have authority to negotiate and bind his organization on significant matters or make significant decisions. Although he used specialized knowledge in the EOSH field, he did not consult with and provide expert advice to FAA management relating to the overall management or the general business operations of the unit, such as would be provided by certain management consultant or program analyst positions. Rather, the claimant provided technical advice and/or recommendations to SECMs related to his assigned safety programs requirements. He also supplied FAA-specific SOPs to the SECMs.
The claimant was not involved in planning long-or short-term organizational objectives for the organization. He had no responsibility to investigate and resolve matters of significance on behalf of management or represent the organization in handling complaints, arbitration of disputes, or resolution of grievances. Those matters were within the authority and responsibility of higher-level management officials.
While the claimant performed his work independently, free of immediate supervision and direction, in contrast to the application of discretion and independent judgment, he used knowledge and skill in applying well-established rules, regulations, standards, and written precedents which were applicable to the work assigned. Therefore, the decisions he made were not significant within the meaning of the regulation in that they affected the procedural details of the technical support he provided and primarily focused on deciding whether the recommended solutions met established requirements.
Based on the preceding analysis, the claimant’s work does not meet the administrative exemption criteria.
Professional and learned professional exemption criteria
The Industrial Hygiene, 0690 series, is a professional series which is not specifically included under the learned professional exemption criteria detailed in 5 CFR 551.208(c) through (m). However, Industrial Hygienists may still be considered learned professionals under 5 CFR 551.208(b) which states:
“The areas in which the professional exemption may be applicable are expanding. As knowledge is developed, academic training is broadened and specialized degrees are offered in new and diverse fields, thus creating new specialists in particular fields of science or learning. When an advanced specialized degree has become a standard requirement for a particular occupation, that occupation may have acquired the characteristics of a learned profession.”
After a thorough review of the academic training and specialized degrees currently available for Industrial Hygiene, we find the field of Industrial Hygiene meets the definition of “profession” as described in 5 CFR 551.208. Industrial Hygienists anticipate, recognize, evaluate, prevent, and control environmental factors or stresses arising in or from the workplace which may cause sickness, impaired health and well-being, or significant discomfort among workers or citizens of the community. They use a broad range of scientific equipment and methods to analyze, identify, and measure human exposure to a wide variety of chemical, physical, ergonomic, or biological contaminants and conditions. Due to job market demands for individuals with specific training and certification in the field of Industrial Hygiene, undergraduate and graduate degrees in Industrial Hygiene are currently offered at several colleges and universities in the United States. In addition, professional organizations such as the American Industrial Hygiene Association and the American Board of Industrial Hygiene offer course accreditation, professional certification (e.g., Certified Industrial Hygienist), and continuing education programs for sustaining certifications. Based on this criteria, Industrial Hygiene meets the definition of a “profession” as stated in 5 CFR 551.208(b).
However, in contrast to professional Industrial Hygiene duties and responsibilities, in this position the claimant’s primary duties involved providing routine technical support to the ESA’s SECMS regarding the Asbestos, Indoor Air Quality, and Occupational Medical Surveillance Programs (e.g., supply SOPs to SECMs and draft correspondence). In comparing the claimant’s primary duties to the learned professional exemption criteria, we found that although he possesses the advanced scientific knowledge obtained through prolonged specialized educational instruction to qualify as an Industrial Hygienist, 0690, his duties in this position during part of the claim period did not require the use of advanced knowledge of a predominantly intellectual character to analyze, interpret, or make deductions from varying facts or circumstances. Instead, they consisted of routine technical work, such as responding to requests for information to safely plan work in accordance with established guidance (e.g., repair a burst pipe wrapped in asbestos-containing insulation, review a draft SOW to determine if it included required information, and disseminate FAA orders concerning sample collection methods); and gather and compile training materials and present training based on the established requirements of the Federal agency(s) overseeing the training topic. The latter task required he use basic communication skills to gather routine information such as the dates and times an SSC manager’s subordinates were available to attend training. Further, the claimant’s primary duties did not require the consistent exercise of discretion and judgment. Instead, he worked within the parameters of clearly established guidance and was not allowed to deviate from established guidance to respond to new, unusual, or controversial issues or conditions without the express approval of his supervisor.
Based on the preceding analysis, the claimant’s work does not meet the professional or learned professional exemption criteria.
FV-0690-J, IH position
As previously discussed, to determine the exemption designation of the appellant’s work in this position we are only applying the administrative and professional and learned professional exemption criteria.
Administrative exemption criteria
The claimant’s work in this position does not meet the administrative exemption criteria. While the claimant performed office or non-manual work, his duties were not an extension of the agency’s management process or general business operations and did not help with or affect the management of significant matters within the agency.
Rather, the claimant primarily furnished technical support to SECMs regarding his assigned EOSH programs. In addition, he did not exercise discretion and independent judgment with respect to matters of significance as described in the ten factors of the regulation noted above. For example, he had no authority to formulate, affect, interpret, or implement management policies or operating practices at his level. Work that significantly affected the formulation or execution of policies or practices generally refers to employees who actually make policy, make policy decisions, or develop proposals that are acted on by others. This authority was outside the scope of the claimant’s position. Instead, he provided technical support to SECMs concerning his assigned programs and reviewed draft SOWs to ensure they included the EOSH requirements to be followed by contractor personnel.
The claimant did not carry out major assignments in conducting the operations of the organization. He worked specifically with ESA SECMs and provided technical support, so the SSC managers questions and concerns were resolved regarding his assigned safety programs within an organization that provided EOSH programmatic support to all the districts within the service area. The claimant carried out very specific requests for technical assistance, rather than major assignments in conducting the operations of his organization, thus his work did not affect the organization’s operations to a substantial degree. He did not have the authority to commit the employer in matters that had a significant financial impact. That authority rested with higher-level management officials.
The situations the claimant regularly dealt with did not require him to waive or deviate from established policies and procedures. He did not perform any work requiring him to have authority to negotiate and bind his organization on significant matters or make significant decisions. Although he used specialized knowledge in the EOSH field, he did not consult with and provide expert advice to FAA management relating to the overall management or the general business operations of the unit, such as would be provided by certain management consultant or program analyst positions. Rather, the claimant provided technical advice and/or recommendations to SECMs related to his assigned safety programs requirements. He also supplied FAA-specific SOPs to the SECMs.
The claimant was not involved in planning long-or short-term organizational objectives for the organization. He had no responsibility to investigate and resolve matters of significance on behalf of management or represent the organization in handling complaints, arbitration of disputes, or resolution of grievances. Those matters were within the authority and responsibility of higher-level management officials.
While the claimant performed his work independently, free of immediate supervision and direction, in contrast to the application of discretion and independent judgment, he used knowledge and skill in applying well-established rules, regulations, standards, and written precedents which were applicable to the work assigned. Therefore, the decisions he made were not significant within the meaning of the regulation in that they affected the procedural details of the technical support he provided and primarily focused on deciding whether the recommended solutions met established requirements.
Based on the preceding analysis, the claimant’s work does not meet the administrative exemption criteria.
Professional and learned professional exemption criteria
As previously discussed under our analysis of the claimant’s FG-0690-14, IH position, the Industrial Hygiene, 0690 series, meets the definition of a “profession”, although it is not specifically included under the learned professional exemption criteria detailed in 5 CFR 551.208(c) through (m). Like other professions, positions in the 0690 series require advance knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.
However, in contrast to professional Industrial Hygiene duties and responsibilities, in this position the claimant’s primary duties involved providing routine technical support to the ESA’s SECMS regarding the Asbestos, Indoor Air Quality, and Occupational Medical Surveillance Programs (e.g., supply SOPs to SECMs and draft correspondence).
In comparing the claimant’s primary duties to the learned professional exemption criteria, we found that although he possesses the advanced scientific knowledge obtained through prolonged specialized educational instruction to qualify as an Industrial Hygienist, 0690, in this position during part of the claim period his primary duties did not require the use of advanced knowledge of a predominantly intellectual character to analyze, interpret, or make deductions from varying facts or circumstances. Instead, they consisted of routine technical work, such as responding to requests for information to safely plan work in accordance with established guidance (e.g., repair a burst pipe wrapped in asbestos-containing insulation, review a draft SOW to determine if it included required information, and disseminate FAA orders concerning sample collection methods); gather and compile training materials and present training based on the established requirements of the Federal agency(s) overseeing the training topic. The latter task required he use basic communication skills to gather routine information such as the dates and times an SSC manager’s subordinates were available to attend training. Further, the claimant’s primary duties did not require the consistent exercise of discretion and judgment. Instead, he worked within the parameters of clearly established guidance and was not allowed to deviate from established guidance to respond to new, unusual, or controversial issues or conditions without the expressed approval of his supervisor.
Based on the preceding analysis, the claimant’s work does not meet the professional or learned professional exemption criteria.
Detail to Unclassified Duties
The claimant performed two types of work during the detail.
FV-0690-J, IH
As noted above, the claimant spent up to 50 percent of the time performing the duties of his permanent (i.e., FV-0690-J, IH) position during part of the detail. Therefore, the evaluation of the administrative exemption and professional and learned professional exemption criteria is the same as the evaluation above (i.e., nonexempt) for the FV-0690-J, IH position.
Unclassified Duties
As previously discussed, the claimant spent up to 50 percent of the time performing Unclassified Duties during part of the detail. Our comparison of these duties to the executive, administrative, and professional and learned professional exemption criteria follows.
Executive exemption criteria
As previously discussed under our evaluation of the appellant’s FG-0690-14, IH position, the term management means performing a variety of activities specifically listed under 5 CFR 551.104 including interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing their work and appraising performance; handling complaints, grievances, and disciplinary matters, etc.
The claimant’s work does not meet the executive exemption criteria. Our review disclosed his primary duties during this detail did not constitute management as defined in 5 CFR 551.104 because he did not perform any of the activities listed.
Based on the preceding analysis, the claimant’s work does not meet the executive exemption criteria.
Administrative exemption criteria
The claimant’s work performing unclassified duties during this detail does not meet the administrative exemption criteria. While the claimant performed office or non-manual work, his duties were not an extension of the agency’s management process or general business operations and did not help with or affect the management of significant matters within the agency. Rather, he assisted the program managers by updating or creating SOPs regarding the programs or policy/guidance they oversaw after discussing what was needed with the program manager. In addition, he did not exercise discretion and independent judgment with respect to matters of significance as described in the ten factors of the regulation noted above. For example, he had no authority to formulate, affect, interpret, or implement management policies or operating practices at his level. Work that significantly affected the formulation or execution of policies or practices generally refers to employees who actually make policy, make policy decisions, or develop proposals that are acted on by others. This authority was outside the scope of the claimant’s position. Instead, he gathered and consolidated established requirements found in safety and health enforcement regulations and laid out the information, so the SOPs were usable by those in the field.
The claimant did not carry out major assignments in conducting the operations of the organization. He worked specifically with two HQ program managers and provided technical support, so SOPs for the programs or policy/guidance they oversaw were updated or created within an organization that ensured the health and safety of all FAA employees regarding various EOSH programs. The claimant carried out very specific requests for technical assistance, rather than major assignments in conducting the operations of the organization, thus his work did not affect the organization’s operations to a substantial degree. He did not have the authority to commit the employer in matters that had a significant financial impact. That authority rested with higher-level management officials.
The situations the claimant regularly dealt with did not require him to waive or deviate from established policies and procedures. He did not perform any work requiring him to have authority to negotiate and bind the organization on significant matters or make significant decisions. Although he used specialized knowledge in the EOSH field, he did not consult with and provide expert advice to FAA management relating to the overall management or the general business operations of the unit, such as would be provided by certain management consultant or program analyst positions. Rather, the claimant used established safety and health requirements and his technical knowledge and understanding of how work was performed in the field to update or develop SOPs.
The claimant was not involved in planning long or short-term organizational objectives for the organization. He had no responsibility to investigate and resolve matters of significance on behalf of management or represent the organization in handling complaints, arbitration of disputes, or resolution of grievances. Those matters were within the authority and responsibility of higher-level management officials.
While the claimant performed his work independently, free of immediate supervision and direction, in contrast to the application of discretion and independent judgment, he used knowledge and skill in applying well-established rules, regulations, standards, and written precedents which were applicable to the work assigned. Therefore, the decisions he made were not significant within the meaning of the regulation in that they affected the procedural details of the technical support he provided and primarily focused on deciding whether the updated or developed SOPs were usable and met established requirements.
Based on the preceding analysis, the claimant’s work does not meet the administrative exemption criteria.
Professional and learned professional exemption criteria
As previously discussed under our analysis of the claimant’s FG-0690-14, IH position, the Industrial Hygiene, 0690, series meets the definition of a “profession”, although it is not specifically included under the learned professional exemption criteria detailed in 5 CFR 551.208(c) through (m). Like other professions, positions in the 0690 series require advance knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.
However, in contrast to professional Industrial Hygiene duties and responsibilities, during this detail the claimant’s unclassified duties involved providing routine technical support to two HQ program managers regarding the programs or policy/guidance they oversaw (e.g., gather the appropriate regulations and draft SOPs).
In comparing the claimant’s primary unclassified duties to those performed during this detail to the learned professional exemption criteria, we found that although he possesses the advanced scientific knowledge obtained through prolonged specialized educational instruction to qualify as an Industrial Hygienist, 0690, he was not required to use advanced knowledge of a predominantly intellectual character to analyze, interpret, or make deductions from varying facts or circumstances. Instead, his duties consisted of routine technical support work, such as pulling together and consolidating relevant guidance (e.g., OSHA and EPA regulations, FAA policies, and local and State requirements) regarding the SOP subject matter; laying out the information so it was usable by those in the field (e.g., SECMs and SSC managers); and forwarding the draft SOP to the appropriate program manager for review and comment. Further, the claimant’s primary duties did not require the consistent exercise of discretion and judgment. Instead, he worked within the parameters of clearly established regulations and did not create or make deductions regarding them. He was not allowed to deviate from established guidance to respond to new, unusual, or controversial issues or conditions without the expressed approval of his supervisor.
Based on the preceding analysis, the claimant’s work does not meet the professional or learned professional exemption criteria.
The claimant’s work in the FG-0690-14, IH position does not meet the executive, administrative, or professional and learned professional exemption criteria. His work in the FV-0690-J, IH position does not meet the administrative or professional and learned professional exemption criteria. The two types of work he performed during the Detail to Unclassified Duties does not meet the executive, administrative, or professional and learned professional exemption criteria. Therefore, all work performed by the claimant during the claim period is nonexempt and covered by the overtime pay provisions of the FLSA. He is entitled to compensation for all overtime hours worked at the FLSA overtime pay rate. The claim was received by OPM on May 6, 2022, and the claimant can receive back pay for two years prior to that date. However, the claimant’s representatives seek FLSA overtime pay commencing in April 2020. However, because that date exceeds the two-year statute of limitations it is time barred. The agency must follow the compliance requirements on page ii of this decision. While our decision specifically establishes the claim period for purposes of preserving the claim, by extension it also applies to the period going forward if the claimant is assigned to such positions in the future, but their major duties and responsibilities essentially remain the same as found in this decision, particularly the FV-0690-J, IH position which appears to be his position of record during the claim period.
The agency must reconstruct the claimant’s pay records for the period of the claim and compute back pay for the difference between the FLSA overtime pay owed and any overtime pay already paid under the agency’s core compensation pay system, and interest on the back pay, as required under 5 CFR 550.805 and 550.806, respectively. If the claimant believes the agency incorrectly computes the amount, he may file a new FLSA claim with this office.