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In This Section

Pay & Leave Claim Decisions

Washington, DC

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

Michael P. Sessions
Training Instructor GS-1712-12
Training Development Division
Directorate of Training and Doctrine
U. S. Army, John F. Kennedy Special
Warfare Center and School
Department of the Army
Fort Lewis, Washington
Position should be nonexempt, thus due FLSA overtime pay
Exempt; not due FLSA overtime pay
F-1712-12-04

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

03/20/2017


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.  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.  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.

Introduction

On July 21, 2015, OPM’s Merit System Accountability and Compliance (MSAC) received a Fair Labor Standards Act (FLSA) claim from Mr. Michael P. Sessions to retroactively correct his exemption status under the FLSA from September 24, 2009, until the present.  During the claim period, he served as a Training Instructor, GS-1712-12, with the Training Development Division (TDD), Directorate of Training and Doctrine (DOTD), U.S. Army, John F. Kennedy Special Warfare Center and School (USAJFKSWCS), Department of the Army (DA), Fort Lewis, Washington.  We received the agency administrative report (AAR) on September 14, 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 the agency, including information obtained from separate telephone interviews on July 1, 2016, and August 4, 2016, with the claimant, and on July 6, 2016, with the claimant’s supervisor. We also interviewed the claimant’s second-level supervisor on July 22, 2016, for additional clarification of information.

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 September 24, 2012.  On October 17, 2012, the claimant’s agency determined his work met the administrative exemption due to the level of discretion and independent judgment in matters of significance described in the claimant’s official position description (PD) (DN206003).  However, the claimant asserts his actual work does not include exercising discretion and independent judgment with regard to matters of significance and, therefore, does not meet the provisions of the administrative exemption, and asserts he 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 September 24, 2009, until the present.

Evaluation

Period of the Claim

Section 551.702(b) of title 5, CFR, provides that all FLSA claims filed on or 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 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.

Willful violation

 “Willful violation” is specifically defined in 5 CFR 551.104 as follows:

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

Therefore, not all violations of the FLSA are willful as this term is defined in the regulations.  Based on our below analysis, there is no question that the claimant’s agency erred in determining his exemption status, particularly given the fact the claimant is assigned to a standard agency-wide PD which describes duties the claimant does not perform.  However, to prove willful violation, there must be evidence that the claimant’s agency showed a reckless disregard concerning the requirements of the FLSA.  Instead, we find the agency simply erred in making the exemption determination by failing to fully consider and evaluate the limited authority and responsibility associated with the claimant’s actual work rather than those described in the agency’s standardized PD.  Therefore, we conclude the agency’s actions were not deliberate and do not meet the criteria for willful violation as defined in 5 CFR 551.104.

Therefore, upon consideration of the aforementioned circumstances, we find the claim is subject to a two-year statute of limitations.  The claimant filed an official FLSA claim with his agency on September 24, 2012.  Thus, the claim period is preserved as of September 24, 2012, and extends back to September 24, 2010.  Any time prior to that date falls outside the claim period.

Position Information

The claimant’s PD includes duties and responsibilities inconsistent with the work actually performed by him.  For example, the claimant’s PD states he serves as the subject matter expert (SME), primary instructor, and—in conjunction with DOTD TDD—a training scenario and lesson plan developer for the Advanced Special Operations Training (ASOT) course specifically related to intelligence-related instruction and training.  The PD also states he has responsibility for, and oversight of, all new and updated lesson plans for intelligence training and serves as the focal point for review of all TDD drafted Training Requirements and Analysis System (TRAS) update documents during the final Points of Instruction (POI) review process.  However, the claimant is not responsible for coordinating with DOTD TDD training scenario and ASOT lesson plan developers with regard to intelligence-related course instruction and, although the claimant provides input and recommendations on lesson plans and course content (e.g., during annual lesson plan evaluations, reporting incorrect data and instructional processes when discovered, responding to general agency requests for instructor input, etc.), the responsibility for oversight and production of, and updates to, intelligence course materials and processes rests with the senior instructor (SI), Desk Officer (DO), the Commandant, Special Forces Command (SFC), and/or higher-level management within USAJFKSWCS and his agency.

The PD states the claimant serves as SME for TDD-provided draft POI review to ensure completeness and accuracy of the training plan and, as the course instructor training qualification program SME, develops, plans, supervises, and executes instructor-training programs geared toward overall instructor qualifications, as well as primary instructor qualifications for individual blocks of instruction.  The PD further states the claimant trains all instructors on current doctrinal material, assists in the selection of instructors, assists in assigning instructors major blocks of instructions, documents and updates all instructor qualification training program files, and updates the instructor training qualification program as necessary.  However, although the claimant provides input and recommendations regarding intelligence-related lesson plans and course content for which he is responsible, he does not review instructor training plans for completeness and accuracy or review overall instructor qualifications for individual blocks of instruction.  In addition, the claimant is not responsible for documenting and updating instructor qualification training program files or providing updates to the instructor qualification training program.  These responsibilities rest with higher-level management within USAJFKSWCS and his agency.

The PD states the claimant trains, guides, and mentors adjunct and assigned instructors through technical subject areas, is responsible for the coordination of up to eight adjunct instructors (GS15/SAS2-equivalent) who provide a very sensitive and critical block of intelligence-related instruction, and ensures the adjunct instructors have the required instructional credentials; receives and in-briefs the adjunct instructors prior to and during each class; rehearses each adjunct instructor prior to the execution of the field training exercise; and debriefs the adjunct instructors upon the completion of instruction.  The PD also states the claimant evaluates instructor presentation of class content and provides detailed advice and feedback to the instructors on their platform presentation.  However, the claimant is not responsible for training, guiding, critiquing, coordinating, or mentoring adjunct instructors in either classroom instruction or Practical Examinations (PE) or for ensuring the credentials of adjunct instructors.  These responsibilities rest with the SI or higher-level management within USAJFKSWCS.

The claimant’s PD states the claimant serves as the SME focal point for interagency coordination and evolution of the skill-sets to maintain effective joint and agency interoperability.  However, both the claimant and his supervisor assert the senior instructor and PE leader are the focal points for interagency coordination of joint and agency interoperability.  The PD also states the claimant frequently introduces innovative and new approaches to established classroom techniques.  However, while the claimant provides recommendations and suggestions regarding course information and processes when appropriate, responds to unexpected student inquiries, and interjects real-life and personal examples into his classroom instruction and PEs when appropriate,  statements obtained through interviews with the claimant and his supervisor confirm he employs standard teaching methods and approaches (e.g., tactile, auditory, positive/negative feedback, experiential learning, practical application, etc.).  In addition, the PD states the claimant is the course manager for the ASOT Administrators/ Managers Course and is responsible for conducting all course preparation, training development, and instructor preparation for the administrator/manager courses.  However, the claimant is not responsible for the ASOT Administrators/Managers course.  This responsibility rests with the SI, Commandant SFC, or higher-level management within USAJFKSWCS.

The PD states the claimant assists in the development of ASOT intelligence-related doctrine and policies by providing updated lesson plans and POI training requirements and analysis system (TRAS) documentation input and review in conjunction with the developers; independently researches and develops ASOT doctrine and materials for courses covering intelligence operations for Special Operations Forces; and, in coordination with TDD, develops and updates lesson plans for complex high-level courses which complement total course content.   The PD also states the claimant designs, evaluates, and recommends new concepts and means of employing Special Operations Techniques; conducts fact-finding and research of ASOT doctrine and methodologies employed by other U.S. Government agencies to determine interoperability between their standards and those of USAJFKSWCS to update course material; performs liaison visits, as required, to higher HQ; and participates in and conducts conferences and briefings for Special Forces Group, USSOCOM, FORSCOM, DA, DoD and other U.S. Government agencies.  Although the claimant is a SME in, and instructor of, intelligence and advanced special operations techniques, statements obtained through interviews with the claimant and his supervisor show he is not responsible for any of the aforementioned ASOT intelligence-related doctrine and policy duties.  These responsibilities rest with the commandant, SFC, or higher-level management within USAJFKSWCS or the agency.

The PD states the claimant serves as the PE training scenario developer for classified intelligence-related instruction for ASOT and acts as the focal point for the research, development, and design of all ASOT exercises.  The PD further states the claimant supervises the preparation of detailed written plans outlining exercise goals and objectives and that he identifies skills to be tested, how they will be evaluated, and the resources required to include support personnel, instructors, funds, and equipment; oversees all coordination required to conduct ASOT exercises; designs all mechanics to properly run the field training exercise; and serves as the controller and evaluator for all ASOT-related activities in the exercise.  However, responsibility for oversight of major intelligence-related PEs rests with the SI, PE leader, and the commandant, SFC, who work cooperatively with psychologists and intelligence and national security experts at Johns Hopkins University to develop PEs which are conducted in a variety of public settings (e.g., industrial, metropolitan, rural, etc.).

The PD states the claimant acts as the focal point for all ASOT-related training and activities within USAJFKSWCS; ensures that the type and extent of the ASOT training meet the goals of Special Forces; acts as SME on Advanced Special Operations, supervising four field training teams; ensures each field training team presents doctrinally sound instruction; and ensures the field training teams take no divergence from doctrine.  The PD also states the claimant acts as interagency academic coordinator; coordinates training and exercise requirements and activities with appropriate U.S. Government agencies, state agencies, and all training group agencies; and ensures doctrinal compatibility and interoperability, which will enable the ASOT graduate to function in a joint and interagency theater.  However, the claimant does not act as the focal point for all ASOT-related training and activities within USAJFKSWCS; is not responsible for ensuring ASOT training meets the goals of Special Forces; is not responsible for supervising field training teams and ensuring each training team presents and adheres to doctrinally sound instruction; is not an interagency academic coordinator; nor is he responsible for coordinating training exercises and activities with U.S. Government, state agencies, and other training group agencies.

The PD states the claimant acts as the focal point on operational security (OPSEC) by providing advice on all counterintelligence/OPSEC-related queries and problems for the ASOT course; conducts initial investigations into the loss or compromise of classified material relating to the ASOT detachment; prepares replies to security, counterintelligence, and OPSEC-related issues; serves as the Special Security Representative (SSR) responsible for maintaining applicable sensitive compartmented information (SCI) directives, regulations, manuals and guidelines; serves as the SSR for the ASOT-W sensitive compartmented information facility (SCIF) and acts as the focal point for all SCIF SCI-related issues; ensures SCI is properly accounted for, controlled, transmitted, transported, packaged and safeguarded; ensures SCI is disseminated only to persons authorized access to the material; serves as the official channel for certifying and receiving SCI visitor clearances/accesses; conducts or otherwise manages SCI personnel, information, physical, and technical security actions and procedures; provides guidance and assistance for processing SCI position and eligibility requests; conducts SCI security briefings, indoctrinations, and debriefings; validates product requirements and ensures dissemination to authorized personnel; conducts continuing SCI security education training and awareness program to ensure all SCI-indoctrinated individuals are kept apprised of the requirements and guidelines for protecting SCI; ensures appropriate accreditation documentation is available for each SCIF and communications/automated information systems under the organization’s security cognizance; reviews all derogatory information from the local supporting military law enforcement agency involving SCI-indoctrinated personnel and takes appropriate action; and manages, supervises, and provides SCI support to DoD SCI contractors, including the processing, review, and approval of DoD Contract Security Classification Specification form 254 (i.e., DD Form 254), which is used to address security requirements and classification to Government contractors having access to classified Government information.  However, although the claimant is required to have and maintain a top secret security clearance and must know and comply with all OPSEC policies, protocols, and procedures, statements from the claimant and his supervisor confirm the SI, PE, commandant, SFC, training battalion commander, or higher-level management within USAJFKSWCS are responsible for the development, implementation, and monitoring of policies, processes, and procedures within USAJFKSWCS, including approval of DD Form 254s.

The claimant is one of 33 SMEs and primary training instructors in the field of intelligence and ASOT at USAJFKSWCS.  As such, he independently plans and presents classroom material within the boundaries of established agency policy and guidelines (e.g., IEG, SOCOM directives, TDD and DOT-D publications, etc.) to identify and adhere to course and student achievement requirements.  The claimant uses a variety of training aids, techniques, and devices (e.g., training models, real life scenarios, personal experience, demonstrations and hands-on practical implementation, etc.) to impart theoretical and practical knowledge associated with intelligence and ASOT concepts, processes, and procedures during classroom instruction and practical exercises.  The claimant also serves as an observer and a role-playing participant during cyclical field training exercises and PEs.

The claimant introduces students to a variety of applicable guides (e.g., SOCOM and USASOC directives, etc.) and demonstrates how and when to access and apply them.  He combines the agency’s established curriculum with real-life examples and his own personal experiences concerning intelligence and ASOT-related issues, processes, and procedures and provides classroom and practical instruction associated with the theory and application of intelligence and ASOT in order to impart knowledge to his students.  As a SME in intelligence and ASOT, the claimant clarifies technical and/or procedural issues (e.g., how and when to use surveillance equipment, etc.) for students associated with all aspects of the subjects he teaches.  In addition, he tailors his instructional methodologies to relate to individual student learning needs, and uses oral and written communications to share and obtain facts and information associated with intelligence and ASOT and deal with any student-related information, issues, and concerns.

Within the boundaries of established agency policy and guidelines, the claimant assesses individual student and overall class instructional needs and determines the best methods and tools necessary to impart knowledge related to the specific courses he instructs.  He evaluates each student’s performance during classroom instruction, practical exercises, and PEs.  In doing so, he produces a Student Assessment Report which rates the performance of each student as unsatisfactory, proficient, accomplished, or superior during each major component of the course and includes a narrative explanation regarding the claimant’s rating decision (e.g., the student was correct 95 percent of the time during the exercise, etc.).  The claimant observes each student’s classroom activities, participation, and attendance and provides feedback, guidance, and, when necessary, counseling to students in the areas of performance, deportment, attitude, or participation.  In the event counseling occurs, he completes a DA Form 4856, which covers reasons for conducting the counseling, any issues covered during the counseling session, and any observations and recommendations made by the claimant.  He then submits this form to his supervisor for consideration and further action.  In addition, the claimant keeps records of attendance and test scores of each student and forwards this information to the appropriate agency personnel and offices.  The claimant also administers formal and informal tests and/or quizzes and determines the appropriateness of student’s written, oral, and practical responses in relation to the course curriculum.

As a SME on the theory and practical application of intelligence and ASOT-related protocol, processes and procedures, the claimant monitors TDD, DOTD, and other publications for modifications and updates which might impact the content and implementation of his curriculum, and provides verbal and written recommendations for revisions to the current curriculum, equipment, and methods through his supervisor, which are considered along with recommendations from other instructors and used to update POIs for future training courses.  He ensures classrooms are adequately stocked with training supplies and equipment and, in cases where training equipment or information is very valuable, sensitive, or of a classified nature, ensures students are instructed on the proper procedures in order to meet established security and confidentiality standards.  The claimant is required to maintain both Top Secret and SCI clearances and is responsible for safeguarding classified materials.

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 grade level assigned to the position (i.e., GS-12) and the exercise of discretion and independent judgment as evidenced in the claimant’s official position description.  However, the agency failed to apply the most recent version of this guidance (i.e., October 2007).  After a careful review of the record, we disagree with the agency’s decision to exempt the claimant’s work based on the provisions of the administrative exemption criteria.  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 551.217), we disagree with the agency’s decision not to compare the claimant’s instructor work to the learned professional exemption criteria detailed 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 (2007) 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.

The claimant’s PD misrepresents the actual level of discretion and independent judgment assigned to, and exercised by, the claimant.  For example, in contrast to staff work (i.e., work involving the establishment and management of agency-level education programs and policies) which regularly involves the exercise of discretion and independent judgment with respect to significant agency policies and programs described in the ten factors of the regulation summarized above, the claimant performs non-manual line work (i.e., work primarily involved in implementing agency-level programs and policies) related to imparting advanced intelligence and ASOT knowledge to students within the boundaries of agency policy and standards.  Therefore, the claimant’s responsibilities are focused on imparting knowledge to students rather than managing and directing the training facility and/or agency programs.  Further, the claimant has no authority either (1) to commit his command in matters having significant financial impact or to deviate from established agency policies or procedures, or (2) to negotiate and bind his organization on significant matters.  Instead, both the claimant and his supervisor assert all staff-related decisions and responsibilities rest with the commandant, SFC, or higher-level management within the agency.

In addition, although the claimant is a SME on issues and processes associated with advanced intelligence and ASOT and provides input and recommendations regarding various aspects of his curriculum, training equipment, and processes and procedures, he does not provide advice associated with agency policies and programs, is not involved in planning short-term or long-term objectives for his command or agency, 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, disputes, or grievances.  These responsibilities rest with the Chief of Staff, USAJFKSWCS, or higher-level management within his agency.  The claimant’s actual work does not include exercising discretion and independent judgment as described under the current regulations.  Therefore, the claimant’s actual work does not meet the administrative exemption criteria.

Learned Professional Criteria

To qualify for the learned professional exemption detailed in 5 CFR 551.208, 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 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.

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)(3)) 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 in 5 CFR 551.208.  First, the claimant spends 20 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 advanced intelligence and ASOT, providing suggestions to improve the accuracy and/or effectiveness of his course material, and 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 and PEs in order 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 he encounters during classroom and PEs.  The claimant’s actions and decisions, during the claim period, 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 (h).  The claimant’s primary responsibility is to impart knowledge of advanced intelligence and ASOT through classroom training sessions and PEs, 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 work performed by the claimant 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, claimant’s teaching and/or training and instructing responsibilities, during the claim period, meet the broader characteristics of professional teaching work described in 5 CFR 551.208, and King.

Fourth, the claimant’s facility is an “educational establishment.”  As defined within 5 CFR 551.104, an educational establishment includes “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 DoD-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.  USAJFKSWCS is considered by the Army to be one of its premier educational institutions, managing and resourcing three distinct special operations branches (i.e., Special Forces, Civil Affairs, and Psychological Operations), and offers more than 40 different courses associated with these three branches (e.g., Civil Affairs active duty qualification course, cultural support training, Psychological Operations (PSYOP) unconventional warfare, advanced PSYOP target analysis course, special forces physical surveillance course, advanced special operations techniques, special operations analytics and intelligence course, special operations combat medic, special operations independent duty corpsman, ASOT, etc.).  The primary purpose of USAJFKSWCS is to impart knowledge by providing comprehensive instruction in a variety of courses from entry level to advanced theory, concepts, and practical application for various subjects, including intelligence and ASOT, and is designed to enhance the DoA’s overall warfighting capabilities.  Further, the theoretical and intellectual requirements of the intelligence and ASOT courses provided through USAJFKSWCS are similar to that which would be expected at a post-secondary educational establishment (e.g., social science, National security and intelligence, intelligence analysis, counterintelligence and National security, etc.).  Therefore, USAJFKSWCS qualifies as an “educational establishment” within the context of 5 CFR 551.104.

Thus, applying these criteria to the day-to-day work performed by the claimant, we find the claimant’s work meets the definition of “teacher” under the aforementioned regulations, and 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.  However, it does meet the learned professional exemption criteria and is, therefore, not covered by the overtime provisions of the FLSA.

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