Washington, DC

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

---

Linda Kazinetz
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


02/16/2017

---

Date

Introduction

On October 27, 2015, OPM’s Merit System Accountability and Compliance (MSAC) received a Fair Labor Standards Act (FLSA) claim from Mr. Larry O. Hebert to retroactively correct his exemption status under the FLSA from November 2009 to the present.  During that period, he served as a Training Instructor, GS-1712-12, with the Antisubmarine Warfare Training and Assessment Division of the Undersea Warfare Development Center (UWDC), Department of the Navy, Naval Station, Norfolk, Virginia.  We received the agency administrative report (AAR) on December 1, 2015, and have accepted and decided this claim under section 4(f) of the FLSA of 1938, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).

In reaching our FLSA decision, we have carefully reviewed all information furnished by the claimant and his agency, including information obtained from separate telephone interviews with the claimant on June 21, 2016, his first-level supervisor on July 8, 2016, and his second-level supervisor on July 14, 2016.

General Issues

The claimant, believing his agency incorrectly exempted his work from FLSA coverage by application of the administrative exemption criteria in 5 CFR 551.206, requested an agency review of his FLSA exemption status on May 5, 2015.  The record shows that on August 3, 2015, the claimant’s agency determined his work met the administrative exemption criteria due to the grade level of his work (i.e., GS-12), the non-manual nature of his work, and the level of discretion and independent judgment described in his official position description (PD).  The claimant asserts that although his work is graded at GS-12 and is primarily non-manual in nature, he does not exercise discretion and independent judgment with respect to matters of significance and, therefore, does not meet the provisions of the administrative exemption criteria and is entitled to the difference between the overtime wages he was paid under the premium pay provisions of section 5542 of title 5, U.S.C., and “full overtime wages” under the FLSA from November 2009, until the present.

Evaluation

Period of the Claim

Section 551.702 of title 5, CFR, provides that all FLSA claims filed after June 30, 1994, are subject to a two-year statute of limitations (three years for willful violations).  A claimant must submit a written claim to either the employing agency or to OPM 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.  Since the claimant originally filed an FLSA claim with OPM received on or about October 27, 2015, the claim period would be preserved as of that date and the claim period of this claim would commence on October 27, 2013, until the present.

Position Information

The claimant's PD of record during the claim period identifies duties and responsibilities which are inconsistent with the work actually performed by the claimant.  For example, the claimant’s PD states he is responsible for the “development and administration of advanced integrated antisubmarine warfare (ASW) mission planning and coordinated Theater-Strike Force-Strike Group ASW training concepts for senior staff, decision-makers, tactical teams, and battle watch stations” and that he “develops and continually improves training material and competency exams/assessments” for a variety of course material and guidance (e.g., complex ASW mission planning for Force-Level Integration Execution, Oceanographic, Sonar/underwater acoustics-related Acoustics, ASW Tactics, Techniques, and Procedures (TTPs), Afloat Coordinated Strike and Theater-level ASW Doctrine, etc.).  However, the record shows the claimant makes recommendations for changes and additions to ASW hardware and software, course content, course delivery methods, and testing which must be considered and approved by higher-level agency management prior to implementation by the claimant.

The claimant is one of five employees providing classroom and shipboard theoretical and practical instruction in advanced coordinated ASW, sonar/underwater acoustics, and tactical/operational oceanography within the Antisubmarine Warfare Training and Assessment Division of UWDC.  As such, he develops and presents reports and briefings associated with the ASW, sonar/underwater acoustics, and tactical/operational oceanography training program (e.g., Impact Analysis Report, etc.), which detail classroom activities, deficiencies, and progress and include the identification of, and proposed resolutions for, potential problem areas.  For example, the claimant and his fellow instructors recently discovered an ASW screen display which was being taught incorrectly.  They reviewed the information, compared it to available guidance and instruction manuals, made corrections to that portion of the instruction, and submitted the proposed changes to their supervisor who approved the changes.

As a subject matter expert (SME) on the theory and practical application of coordinated ASW, sonar/underwater acoustics, and tactical/operational oceanography used by the Navy, the claimant monitors Surface Warfare Development Group (SWDG) publications for modifications and updates which might impact the content and/or processes of his curriculum, monitors and reviews emerging technology and tactics, provides verbal and written recommendations for revisions to the current training curriculum, equipment, and methods, and submits these through his supervisor to the UWDC for consideration.  For example, in June 2016, the claimant coordinated with his fellow ASW instructors to recommend updates to the Active Sonar/Underwater Acoustics Interference Avoidance Plan (ASIAP) and submitted their recommendations for consideration and further action.

The claimant introduces students to applicable guidance and technical manuals (e.g., Physics of Sound and Water, Tactical Use of the Ocean Environment, ASW Commander’s Manual, etc.) and demonstrates how and when to access and apply them.  The claimant combines the Agency’s established curriculum and his personal experience concerning specific ASW systems (e.g., ASW simulation systems, theater and strike force coordinated ASW systems, tactical/operational oceanography, underwater acoustics, etc.) and provides classroom, pier side, and live military tactical instruction on the theory and application of ASW, sonar/underwater acoustics, and tactical/operational oceanography to educate his students regarding a variety of advanced concepts and processes associated with overall system capabilities and shortfalls (e.g., inaccurate readings due to environmental conditions, incorrect data, misinterpretation of data, etc.).

The claimant uses a variety of evaluative techniques (e.g., course of action analysis, ASW mission implementation, threat assessment, ASW sensor optimization, and theater/strike group force distribution, etc.) to assess his students during classroom instruction and practical exercises (e.g., Joint Fleet Exercise, Undersea Warfare Exercise, ASW Exercise, Composite Training Unit Exercise, Fleet Exercise, etc.) and uses oral and written communications to share and obtain facts and information.  He maintains student and course-related records, produces progress reports and final grades for students in each class, and forwards these reports to the appropriate agency personnel and offices (e.g., Human Resources, supervisors, individual commands, etc.).

The claimant serves as part of the Mobile Training Team (MTT) which provides ASW, sonar/underwater acoustics, and tactical/operational oceanography training and mentoring in support of the Fleet Readiness Training Plan (FRTP) cycle.  He provides training regarding the use of a variety of Tactical Decision Aids (TDA) such as Personal Computer Interactive Multi Analysis Trainer-PCIMAT, sonar/underwater acoustics TDA, etc.  The claimant provides advice to students and other agency personnel regarding basic on-site maintenance in support of Interactive Multi-Analysis Training (IMAT) systems and TDAs and provides BETA testing, troubleshooting support, and recommendations for improvements when appropriate.

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, (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 which 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, and (e) the designation of a position’s FLSA status ultimately rests on the duties actually performed by the employee.

The claimant’s agency only asserts the claimant’s work meets the administrative exemption criteria of the FLSA detailed in 5 CFR 551.206, based on the position’s GS-12 grade level, the non-manual nature of the work, and the exercise of discretion and independent judgment as evidenced in the claimant’s official position description.  However, after a careful review of the record, we disagree with the Agency’s decision to exempt the claimant’s work on this basis.  In addition, although we agree that the claimant’s work does not meet most other exemptions detailed in 5 CFR 551 (i.e. 551.205 through 551.216), we disagree with the Agency’s decision not to compare the claimant’s instructor work to the learned professional exemption criteria in 5 CFR 551.208.  Therefore, we have compared the claimant’s work to both the administrative and learned professional exemption criteria.

Administrative Exemption Criteria

The current regulation in 5 CFR 551.206 defines an administrative employee as one 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.

The regulation states: (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.

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 does not require the decisions made by an employee have a finality that goes with unlimited authority and a complete absence of review.  Decisions made may consist of recommendations for action rather than the actual taking of action.  The fact they are subject to review and sometimes revised or reversed after review does not mean the employee is not exercising discretion and independent judgment.  The regulation notes that 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.

Under the current regulations, the claimant’s work does not meet the administrative exemption criteria.  In contrast to staff work (e.g., work involving the establishment and management of agency-level education programs and policies), which would require an employee to regularly exercise discretion and independent judgment with respect to significant agency policies and programs described in the ten factors of the regulation summarized above, the claimant performed non-manual line work (i.e., work primarily involved in implementing agency-level programs and policies for teaching/training/instructing) related to imparting advanced ASW, sonar/underwater acoustics, and tactical/operational oceanography knowledge to students within the boundaries of agency policy and standards.  For example, the claimant does not have authority to formulate, affect, interpret, or implement management policies.  These responsibilities rest with the Director, Undersea Warfare Training and Assessment, or higher-level management within his agency.  He imparts knowledge to students, rather than engaging in the management and direction of the training facility and/or agency programs to a substantial degree; he has no authority to commit his command or the Navy in matters having significant financial impact or to waive or deviate from established agency policies or procedures; nor is he authorized to negotiate and bind his organization on significant matters.  Instead, the record shows all staff related decisions and responsibilities rest with the Director, Undersea Warfare Training and Assessment, or higher-level management within the Agency.  As an SME on issues and processes associated with advanced ASW, sonar/underwater acoustics, and tactical/operational oceanography, the claimant provides input and recommendations regarding various aspects of his curriculum, training equipment, and processes and procedures.  However, the record shows he is neither responsible for providing advice associated with agency policies and programs nor involved in planning short-term or long-term objectives for his command or agency.  In addition, the claimant is not responsible for investigating and resolving matters of significance on behalf of management or representing his command or his agency with regard to complaints, arbitration of disputes, or the resolution of grievances.  These responsibilities rest with his supervisor, the Director, Undersea Warfare Training and Assessment, or higher-level management within his agency.  Therefore, the claimant’s work does not meet the administrative exemption criteria.

Learned Professional Criteria

The current regulation under 5 CFR 551.208 describes the learned professional exemption criteria, in relevant part, as follows:

To qualify for the learned professional exemption, an employee’s primary duty must be the performance of work requiring 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.

“Teachers” are specifically included under the learned professional exemption in 5 CFR 551.208(h) which states, in relevant part:

(h) Teachers.  A teacher is any employee with a primary duty of teaching, tutoring, instructing or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in an educational establishment by which the employee is employed.

(1) A teacher performs exempt work when serving, for example, as a regular academic teacher; teacher of kindergarten or nursery school pupils; teacher of gifted or disabled children; teacher of skilled and semi-skilled trades and occupations; teacher engaged in automobile driving instruction; aircraft flight instructor; home economics teacher; or vocal or instrumental music instructor. A faculty member who is engaged as a teacher but also spends a considerable amount of time in extracurricular activities such as coaching athletic teams or acting as a moderator or advisor in such areas as drama, speech, debate, or journalism is engaged in teaching. Such activities are a recognized part of an educational establishment's responsibility in contributing to the educational development of the student.  An instructor in an institution of higher education or another educational establishment whose primary duty is teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge is also an exempt teacher.

(2) The possession of an elementary or secondary teacher’s certificate provides a clear means of identifying the individuals contemplated as being within the scope of the exemption for teaching professionals.  Teachers who possess a teaching certificate qualify for the exemption regardless of the terminology (e.g., permanent, conditional, standard, provisional, temporary, emergency, or unlimited) used by appropriate certifying entities.  However, a teacher’s certificate is not generally necessary for post-secondary educational establishments.

(3) Exempt teachers do not include teachers of skilled and semi-skilled trade, craft, and laboring occupations when the paramount knowledge is the knowledge of and the ability to perform the trade, craft, or laboring occupation.  Conversely, if the primary requirement of the post-secondary education instructor is the ability to instruct, as opposed to knowledge of and ability to perform a trade, craft, or laboring occupation, then the position may be exempt.

The specific inclusion of “teaching” in 5 CFR 551.208 as a learned profession indicates that any work with a primary duty of teaching, tutoring, instructing or lecturing in the activity of imparting knowledge (except for the exclusion in 5 CFR 551.208(h)(1)) includes, by its very nature, exercising discretion and judgment.

The claimant’s work meets the definition of “teacher” under the aforementioned regulations and the associated criteria under the learned professional exemption detailed in 5 CFR 551.208.  First, the claimant spends 10 percent of his time providing direct technical advice and assistance associated with the maintenance and operation of a variety of ASW, sonar/underwater acoustic, and tactical/operational oceanographic systems and equipment and 10 percent of his time engaged in administrative and program support duties (e.g., organizing, storing, and distributing documents, gathering, analyzing, and reporting on program-related data, etc.).  However, the claimant spends approximately 80 percent of his time on teaching/instructing and course-related duties, which exceeds the level required of a primary duty (i.e., typically 50 percent of an employee’s work per 5 CFR 551.104) and therefore, his teacher/instructor duties qualify as a primary duty under the learned professional exemption criteria.

Second, the claimant exercises independent judgment when reviewing agency guidance and technical and procedural developments in the field of ASW, sonar/underwater acoustics, and tactical/operational oceanography, when providing suggestions to improve the accuracy and/or effectiveness of his course material, and when providing suggestions and recommendations for modifications to the current curriculum and instructional equipment and processes.  In addition, the claimant decides when it is appropriate and beneficial to the learning process of his students to interject real-life examples and his own personal experiences, which are not part of the official course curriculum, during classroom, peer-side, and at-sea instruction, to clarify standard course information and/or emphasize the importance of specific information, processes, and/or issues.  He also uses discretion and independent judgment when deciding how to answer questions posed by his students, determining which students might benefit from counseling and individual instruction, and when evaluating how his students respond to issues and situations encountered during peer side and at-sea practical examinations.  The claimant’s actions and decisions demonstrate the exercise of discretion and independent judgment with regard to his consideration of the accuracy and appropriateness of course material, the individual needs, capabilities, and performance of his students, and his individualized teaching style and methods.

Third, the claimant’s instructional work meets the definition of learned professional as described in 5 CFR 551.208, which states, “a teacher is any employee with a primary duty of teaching, tutoring, instructing or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in an educational establishment by which the employee is employed.”  The record shows the claimant’s primary responsibility is to impart advanced knowledge of ASW, sonar/underwater acoustics, and tactical/operational oceanography through classroom training sessions and practical exercises, and to counsel and evaluate individual students with regard to their comprehension and application of the knowledge he presents.  Support for applying the professional knowledge described in 5 CFR 551.208 to the claimant’s work can be found in the case of King v. United States, 119 Fed. Cl. 277 (December 23, 2014), which, in relevant part, defines a teaching professional as an individual whose primary responsibility is to impart knowledge and manage the overall instruction of classroom and/or the practical aspects of training sessions and evaluate individual student comprehension and implementation of the subject matter taught.  Therefore, the claimant’s teaching and/or training and instructing responsibilities meet the broader characteristics of professional teaching work described in 5 CFR 551.208, as applied in King.

Fourth, the claimant’s facility is an “educational establishment.”  As defined under 5 CFR 551.104, an educational establishment is “a nursery school, an elementary or secondary school system, an institution of higher education, other educational institutions, and in certain circumstances, training facilities.”  However, the regulations do not specifically define what qualifies a “training facility” as an educational establishment because training facilities vary widely, from Department of Defense-operated primary and secondary schools and military technical training schools, to law enforcement training centers and adult training facilities operated by a variety of Federal agencies.  The UWDC training center was established on September 1, 2015, when the Navy consolidated its Tactical Analysis Group, Artic Submarine Laboratory, and Anti-Submarine Warfare components into a single command (i.e., UWDC) designed to develop doctrine, concepts of operation, and tactics for undersea warfare (USW); assess USW performance and warfighting readiness; and provide training for undersea platforms and integrated fleet operations and fleet-wide advanced undersea capabilities, wholeness, and synchronization.  The primary purpose of the UWDC’s training center is to impart knowledge by providing comprehensive instruction in advanced ASW theory, concepts, and practical application for the benefit of both staff and line elements of the Navy and is designed to enhance the Navy’s overall warfighting capabilities and readiness with regard to ASW.  Further, the theoretical and intellectual requirements of UWDC’s courses are similar to that which would be expected at a post-secondary educational establishment (e.g., theory and practical application of the physics of sound in water, advanced meteorology and oceanography, etc.).  Therefore, UWDC qualifies as an “educational establishment” within the context of 5 CFR 551.104.

Therefore, after applying the aforementioned criteria to the claimant’s day-to-day work, we find the claimant’s work meets the definition of “teacher” under the aforementioned regulations and, as such, meets the criteria for the learned professional exemption in 5 CFR 551.208.

Decision on FLSA Coverage

Based on the above analysis, the claimant’s work does not meet the administrative exemption criteria.  However, it does meet the learned professional criteria and is, therefore, not covered by the overtime pay provisions of the FLSA.

Back to Top