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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

Jeffrey S. McVey
Aviation Safety Compliance Specialist
(Avionics) GS-1801-13

Aviation Management Directorate
National Business Center
Western Region
Office of the Secretary
Department of the Interior
Boise, Idaho
Position should be nonexempt, thus due FLSA overtime pay
Nonexempt. Due FLSA overtime pay
F-1801-13-03

Ana A. Mazzi
Deputy Associate Director
Merit System Audit and Compliance

01/06/2011


Date

 

As provided in section 551.708 of title 5, Code of Federal Regulations (CFR), this decision is binding on all administrative, certifying, payroll, disbursing, and accounting officials of agencies for which 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 (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 instructions on page 11 of this decision, and then pay the claimant the amount owed him if he chooses not to request compensatory time in lieu of FLSA overtime pay.  If the claimant believes the agency has incorrectly computed the amount owed him, he may file a new FLSA claim with this office.

Introduction

On June 19, 2009, OPM received an initially confidential FLSA claim from Jeffrey S. McVey, an employee of the Department of the Interior (DOI).  In a memorandum to OPM dated April 9, 2010, he retracted his original request for confidentiality.  The claimant believes his work should be nonexempt (i.e., covered) under the FLSA and he should thus be entitled to FLSA overtime pay.  His position is classified as Aviation Safety Compliance Specialist (Avionics), GS-1801-13, with the Aviation Management Directorate, National Business Center, Western Region, DOI, in Boise, Idaho.  We have accepted and decided this claim under section 4(f) of the FLSA as amended.

In reaching our FLSA decision, we have carefully considered all information furnished by the claimant and his agency, including a copy of the agency’s administrative report which we received on September 2, 2009.  To help decide this claim, we conducted separate telephone interviews with the claimant on April 9, 2010, and his supervisor on May 7, 2010.                    

Background

For the past six years the claimant has been assigned to the GS-1801-13 position (PD number B0125), which the agency designated as exempt (i.e., not covered) from the overtime pay provisions of the FLSA.  He has been with DOI since 1992, previously occupying electronics technician and equipment specialist positions, and has approximately 38 years of experience in the mechanical repair and inspection of aviation electronics equipment (avionics) in the military and as a Federal employee.  Over the years he has attended extensive specialized technical training provided by equipment manufacturers and DOI on the functions of avionics equipment and operating procedures, and holds a General Radio Telephone Operator License issued by the Federal Communications Commission (FCC).  He attends biennial DOI-sponsored inspector workshops, and every two years must obtain 30 credits of aviation-related training in topics including airframe, engine, or avionics offered by manufacturers, maintenance training seminars, safety seminars, interagency fire courses, etc.  During the early years of his employment he participated in training modules on aviation safety/life support equipment, DOI aviation policy and regulations, automated flight instrumentation, aircraft approval and operations security, risk management, and aviation transport of hazardous materials. 

Position information

The claimant spends approximately 90 percent of his time leading and/or conducting onsite inspections of the avionics (e.g., transponders, FM radios, global positioning systems, emergency locator transmitters) and other equipment of DOI fleet and contracted fixed-wing and rotary-wing aircraft, i.e., helicopters.  As part of the inspection process, he performs related duties such as completing inspection forms, writing inspection reports, reviewing aircraft service contracts, and acting as team leader for scheduled inspections.  DOI provides contracted aviation services to several of its bureaus including the Bureau of Reclamation, Bureau of Land Management, Bureau of Indian Affairs, National Park Service, U.S. Geological Survey, Fish and Wildlife Service, Mineral Management Service, and Office of Surface Mining.  There are between 200 to 250 private aviation contractors in the region covering 750 contracted aircraft.  Contracts range from two to five years in duration.  The claimant performs inspections throughout the Western Region’s area including the states of Washington, Oregon, Idaho, Montana, Utah, Nevada, Wyoming, Colorado, California, New Mexico, Arizona, and parts of Texas.  He inspects diverse types of fixed and rotary- wing aircraft and ancillary equipment to ensure maintenance and safety compliance with contract specifications, Aviation Management Directorate (AMD) requirements, and Federal Aviation Administration (FAA) and Federal acquisition regulations.  He conducts initial inspections of contractors’ maintenance facilities and quality control procedures.  In conducting inspections, he verifies that all FAA approvals have been obtained and are documented for each aircraft and for any modifications to such aircraft.

The claimant independently approves/disapproves the contractor’s avionics equipment used in Government missions and, if approved, prepares all paperwork to document and record approvals.  If aircraft are disapproved they cannot be used for Government missions, although he makes recommendations on how to correct deficiencies and performs re-inspections as needed.  In making scheduled and unscheduled inspections, the claimant may unilaterally withdraw authorization cards for any aircraft (AMD-36A) or ancillary equipment (e.g., re-fueling trucks) when contract requirements are not met or safety deficiencies are found.  When contractor deficiencies are corrected, he independently follows-up to ensure corrections have been made before re-issuing authorization cards.  As the expert in avionics, he provides guidance to contractors and agency contracting officers as requested on issues of safety, accuracy and uniformity of contract specifications and modifications, and special use operations for both DOI fleet and contracted fixed-wing and rotary aircraft. 

As a team leader assigned to a particular geographic zone, the claimant reviews rental agreement renewals for inclusion of appropriate technical specifications and leads onsite inspection teams.  Leadership duties include pre-onsite review of contractor records and contracts, and planning, coordinating and scheduling inspections of pilots, maintenance, and avionics activities relating to contractual, regulatory, and safety requirements.  Onsite he performs avionics inspections and, along with other team members, identifies and resolves technical problems related to safety and adequacy of operations, qualifications and proficiency of pilots, training deficiencies, suitability  of aircraft for missions performed, mechanical condition of aircraft and special equipment (e.g., remote hooks), and proper upkeep of flight logs and maintenance records.  He reviews documentation prepared by team members for completeness and clarity, and follows up to ensure all required inspection and evaluation documents and recommended corrective actions are reported by team members in a timely manner. 

Although the claimant states his PD is generally accurate and DOI management concurs, based on our fact-finding we find portions to be inaccurate.  For example, the claimant does not develop and implement the departmental aircraft avionics program.  While he is a technical expert in avionics, program development and implementation are the responsibility of his supervisor, the regional director of AMD.  Additionally, most of the guidelines he uses such as contracts, aviation regulations and safety requirements, and equipment manufacturer technical specifications, are highly specific for the equipment inspected.  They are not written in broad, general terms and require little judgment in selecting the best approach for determining contract and maintenance compliance and the safe use of aircraft and ancillary equipment. 

Evaluation of FLSA coverage

Sections 551.201 and 551.202 of 5 CFR require an employing agency designate an employee FLSA exempt only when the agency correctly determines the employee’s work meets one or more of the exemption criteria.  In all exemption determinations, the agency must observe the following principles:  (1) each employee is presumed to be FLSA nonexempt; (2) exemption criteria must be narrowly construed to apply only to those employees who are clearly within the terms and spirit of the exemption; (3) the burden of proof rests with the agency which asserts the exemption; and (4) if there is a reasonable doubt as to whether an employee meets the criteria for exemption, the employee should be designated FLSA nonexempt.  The designation of a person’s FLSA status ultimately rests on the duties actually performed by the employee.

There are three primary exemption categories applied to Federal employees:  executive, administrative, and professional.  Neither the claimant nor the agency asserts the claimant’s work is covered by the executive or professional exemption and, based on careful review of the record, we agree.  Therefore, our analysis is primarily limited to the administrative exemption criteria in effect during the claim period.  Given the claim period in this case, the claim is covered by both the 1998 FLSA regulations and the current FLSA regulations, effected on October 17, 2007

Administrative Exemption Criteria

         FLSA Regulations (1998)

Under the administrative exemption criteria in 5 CFR 551.206 (1998) in effect during part of the claim period, an administrative employee is an advisor or assistant to management, a representative of management, or a specialist in a management or general business function or supporting service and meets all four of the following criteria:

(a)    Primary duty test.  The primary duty test is met if the employee’s work (1) Significantly affects the formulation or execution of management programs or policies; or (2) Involves management or general business functions or supporting services of substantial importance to the organization serviced; or (3) Involves substantial participation in the executive or administrative functions of a management official.

(b)   Nonmanual work test.  The employee performs office or other predominantly nonmanual work which is (1) Intellectual and varied in nature; or (2) Of a specialized or technical nature that requires considerable special training, experience, and knowledge.

(c)    Discretion and independent judgment.  The employee frequently exercises discretion and independent judgment, under only general supervision, in performing the normal day-to-day work. 

(d)   80-percent test.  In addition to the primary duty test that applies to all employees, General Schedule employees in positions properly classified at GS-5 or GS-6 (or the equivalent level in other white collar pay systems) must spend 80 percent or more of their work time in a representative work week on administrative functions and work that is an essential part of those functions to meet the 80-percent test.

The primary duty test is not met

The first element of the primary duty test is not met because the claimant’s work does not significantly affect the formulation or execution of management programs or policies.  As defined in section 551.104 (1998), formulation or execution of management programs or policies means work that involves management programs and policies which range from broad national goals expressed in statutes or Executive orders to specific objectives of a small field office.  Employees make policy decisions or participate indirectly, through developing or recommending proposals that are acted on by others.  Employees significantly affect the execution of management programs or policies typically when the work involves obtaining compliance with such policies by other individuals or organizations, within or outside of the Federal Government, or making significant determinations furthering the operation of programs and accomplishment of program objectives.  Administrative employees engaged in such work typically perform one or more phases of program management (that is, planning, developing, promoting, coordinating, controlling, or evaluating operating programs of the employing organization or of other organizations subject to regulations or other controls). 

The claimant’s work neither involves the formulation or execution of management policies or programs, nor does it significantly affect their execution.  While AMD and DOI have established specific work goals and supporting staff resources in organizational planning documents, the claimant does not formulate policies, make policy decisions, or participate indirectly in developing or recommending proposals that are acted on by others.  Such tasks are performed by higher management officials such as the directorate’s regional director.  Although the claimant inspects contractors’ aircraft to determine they meet mission requirements and individual contract specifications, his duties do not significantly affect the execution of management programs or policies.  While he is in a position to require contractor compliance with specific contract requirements, FAA regulations, and aviation management directives, this does not impact compliance with overall DOI aviation policies.  His role is to review and report on the presence, operation, and maintenance of avionics equipment onboard aircraft, determine whether contract provisions, specifications, and aviation requirements are followed, interpret specifications as needed, and ensure safe aviation practices.  The claimant is not in a position to require compliance with the agency’s work goals and objectives, and does not make significant determinations furthering the overall operation or accomplishment of DOI’s aviation management program.  He is solely concerned with detailed inspection of individual aircraft avionics and related equipment, and does not have responsibility for the overall operation and accomplishment of the agency’s aviation program.  Such responsibilities are held by higher level agency managers.  Unlike exempt administrative employees, he does not perform any of the phases of program management described above, e.g., planning, coordinating, or evaluating operating programs.

The claimant does not meet the second element of the primary duty test because his work does not involve management or general business functions or supporting services of substantial importance to the organization serviced.  As defined in section 551.104 (1998), such functions, as distinguished from production functions, mean the work of employees who provide support to line managers.  (1) These employees furnish such support by (i) Providing expert advice in specialized subject-matter fields, such as that provided by management consultants or systems analysts; (ii) Assuming facets of the overall management function, such as safety management, personnel management, or budgeting or financial management; (iii) Representing management in such business functions as negotiating and administering contracts, determining acceptability of goods or services, or authorizing payments; or (iv) Providing supporting services, such as automated data processing, communication, or procurement and distribution of supplies.  (2) Neither the organizational location nor the number of employees performing identical or similar work changes management or general business functions or supporting services into production functions.  The work, however, must involve substantial discretion on matters of enough importance that the employee’s actions and decisions have a noticeable impact on the effectiveness of the organization advised, represented, or serviced.

The claimant’s work does not meet these criteria because his work does not involve management or general business functions or supporting services of substantial importance to his organization as defined above.  Such support is furnished to line managers at higher levels within the agency by designated administrative support staff, particularly contracting officers who negotiate and administer aviation services contracts and authorize payments based on acceptability of work. 

The claimant does not meet the third element of the primary duty test because his work does not involve substantial participation in the executive or administrative functions of a management official.  As defined in section 551.104 (1998), participation in the executive or administrative functions of a management official means the participation of employees, variously identified as secretaries, administrative or executive assistants, aides, etc., in portions of the managerial or administrative functions of a supervisor whose scope of responsibility precludes personally attending to all aspects of the work.  To support exemption, such employees must be delegated and exercise substantial authority to act for the supervisor in the absence of specific instructions or procedures, and take actions which significantly affect the supervisor’s effectiveness.  The claimant does not occupy such a position, and is neither delegated the authority nor responsibility to participate in the executive or administrative functions of his supervisor or any other management official, including acting for them in the absence of specific instructions, or taking any actions which significantly affect the supervisor’s effectiveness. 

The nonmanual work test is met

Although the claimant performs nonmanual work both inside and outside an office, we find it does not meet the first element of the nonmanual work test because it is not intellectual and varied in nature.  As defined in section 551.104 (1998), work of an intellectual nature means work requiring general intellectual abilities, such as perceptiveness, analytical reasoning, perspective, and judgment applied to a variety of subject-matter fields, or work requiring mental processes which involve substantial judgment based on considering, selecting, adapting, and applying principles to numerous variables.  The employee cannot rely on standardized application of established procedures or precedents, but must recognize and evaluate the effect of a continual variety of conditions or requirements in selecting, adapting, or innovating techniques and procedures, interpreting findings, and selecting and recommending the best alternative from among a broad range of possible actions.  While the claimant sometimes interprets a particular avionics specification and suggests to contracting officers alternative ones based on prescribed aviation missions, his work is limited to a single subject-matter area (i.e., avionics inspection) rather than multiple subject-matter fields.  Additionally, in inspecting avionics equipment he applies standardized procedures and well-established DOI and Federal aviation regulations outlined in individual contract provisions, references, and specifications.  Although avionics equipment may vary depending on the type of contracted aviation mission (e.g., fire suppression, wildlife control), decisions made by the claimant are based on standard and prescribed procedures and guidelines rather than innovative techniques or processes, or weighing the best alternative from among a broad range of possible actions. 

The claimant’s work meets the second element of the nonmanual work test.  As defined in section 551.104 (1998), work of a specialized or technical nature means work which requires substantial specialized knowledge of a complex subject matter and of the principles, techniques, practices, and procedures associated with that subject-matter field.  This knowledge characteristically is acquired through considerable on-the-job training and experience in the specialized subject-matter field, as distinguished from professional knowledge characteristically acquired through specialized academic education.  As an aviation safety compliance specialist performing inspections of aircraft avionics equipment, the claimant must apply a substantial knowledge of that complex field including the operation, maintenance, and capabilities of a variety of aircraft communication and flight control/navigational equipment, an understanding of agency contract provisions and specifications, in-depth knowledge of aviation safety measures, laws, and regulations, and familiarity with contracting procedures.  As a senior worker, development of that knowledge and skill results from considerable specialized formal and on-the-job training, and 38 years of practical work experience encompassing the repair and inspection of aircraft avionics equipment. 

The discretion and independent judgment test is not met

The claimant does not exercise the level of discretion and independent judgment to meet this test.  As defined in section 551.104 (1998), discretion and independent judgment means work which involves comparing and evaluating possible courses of conduct, interpreting results or implications, and independently taking action or making a decision after considering the various possibilities.  However, firm commitments or final decisions are not necessary to support exemption.  The “decisions” made as the result of independent judgment may consist of recommendations for action rather than the actual taking of action.  The fact that an employee’s decisions are subject to review, and that on occasion the decisions are revised or reversed after review, does not mean that the employee is not exercising discretion and independent judgment of the level required for exemption.  Work reflective of discretion and independent judgment must meet the three following criteria:

(1)   The work must be sufficiently complex and varied so as to customarily and regularly require discretion and independent judgment in determining the approaches and techniques to be used, and in evaluating results.  This precludes exempting an employee who performs work primarily requiring skill in applying standardized techniques or knowledge of established procedures, precedents, or other guidelines which specifically govern the employee’s action. 

(2)   The employee must have the authority to make such determinations during the course of assignments.  This precludes exempting trainees who are in a line of work which requires discretion but who have not been given authority to decide discretionary matters independently. 

(3)   The decisions made independently must be significant.  The term “significant” is not so restrictive as to include only the kinds of decisions made by employees who formulate policies or exercise broad commitment authority.  However, the term does not extend to the kinds of decisions that affect only the procedural details of the employee’s own work, or to such matters as deciding whether a situation does or does not conform to clearly applicable criteria. 

Although the claimant works independently in performing his daily activities, including planning, organizing, prioritizing and executing his assignments, he does not exercise the degree of discretion and independent judgment characteristic of this test.  In performing aircraft avionics equipment inspections, his work is governed by and performed within the context of well-established and agency-prescribed avionics inspection techniques (i.e., National Business Center/Aviation Management Directorate operating manuals), past precedents, and specific contract provisions and detailed specifications.  These documents address the avionics equipment requirements needed by contractors to perform DOI missions including specific communications, navigation, audio equipment, and related components, equipment maintenance standards, and performance requirements as listed in Avionics Operational Test Standards.  Inspection procedures, guidelines, and contract provisions are standardized and specifically govern the claimant’s actions, and he is not authorized to deviate from or waive contract specifications or technical requirements.  The decisions he makes are not significant within the meaning of the regulation because they either affect only the administrative procedural details of his work as a team leader (e.g., scheduling inspections, assembling technical teams, tracking completion and timeliness of work by team members), or involve avionics equipment inspection technical decisions assessing whether contractors do or do not conform (i.e., “pass/fail”) to clearly applicable criteria prescribed in contract specifications, Federal aviation regulations, and DOI-prescribed aviation support requirements.  His decisions primarily focus on deciding whether DOI’s aviation service contractors meet mission-related contract requirements to do the jobs for which they are hired. 

The 80-percent test is not applicable to the claimant’s work.

Because the claimant’s position is classified above the GS-5 or GS-6 grade level, this criterion does not apply to the claimant’s work.

The claimant’s work does not meet the administrative exemption criteria. 

           FLSA Regulations (2007)

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 that (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. 

Under the regulation, 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.  Although he performs non-manual work related to AMD operations, his primary duties do not include the exercise of discretion and independent judgment with respect to matters of significance.  While he is authorized to make independent compliance decisions free from supervision during inspections, these are based on highly prescribed “pass/fail” criteria with no ability to waive or deviate from contract specifications and aviation safety requirements.  The claimant’s decisions do not meet the discretion and independent judgment threshold with respect to matters of significance as described in the ten factors of the regulation summarized above.  For example, he has no authority to formulate, affect, interpret, or implement management policies at his level (his supervisor or contracting officers have such authority); he carries out only very specific, short-term assignments, rather than major ones, related to immediate aircraft avionics equipment inspections which do not affect the organization’s operations to a substantial degree; he has no authority to commit his employer in matters having significant financial impact or to waive or deviate from established agency policies or procedures; and he is not authorized to negotiate and bind his organization on significant matters.  Although given his extensive practical avionics equipment repair and inspection experience, the claimant may be called upon to provide advice to contracting officers on a particular avionics equipment item that best meets DOI’s mission requirements, overall responsibility for consulting with and providing expert advice to agency management officials on aviation management  projects is the responsibility of the program’s regional director.  Unlike the exemption criteria, the claimant is not involved in planning long-or short-term organizational objectives; does not investigate and resolve matters of significance on behalf of management (this is the responsibility of the contracting officer, program regional director, or agency safety officer); and is not authorized to represent the organization in handling complaints, arbitrating disputes, or resolving grievances. 

While the claimant works independently, free of immediate supervision and direction, in contrast to the application of discretion and independent judgment, the claimant uses knowledge and skill in applying well-established avionics equipment inspection techniques which are clearly outlined and governed by DOI aviation program operating guidance, Federal aviation regulations, equipment manufacturers’ maintenance standards, and specific aviation service contract specifications.  His work meets the exclusion discussed in the administrative exemption criteria of the 2007 regulations [5 CFR 551.206 (n)] which notes ordinary inspection work generally does not meet the duties requirements for the exemption because inspectors normally perform specialized work along standardized lines involving well-established techniques and procedures which are described in manuals and other sources.  Like the exclusion, the claimant applies standard avionics equipment inspection techniques clearly described in a variety of technical references and contracts with many precedents.  He relies on the avionics repair and inspection techniques and skills acquired through his extensive specialized training and work experience, with little or no leeway in performing his inspection duties.    

Although the claimant leads a team of other employees in performing inspections, his leader duties do not meet the requirements for administrative exemption addressed in 5 CFR 551.206(i).  As previously discussed, his leader duties are strictly administrative in nature and limited to planning, coordinating, and scheduling inspections, assembling teams with inspectors who have the needed technical knowledge and skills, and reviewing members’ check-list reports to ensure completeness and timeliness.  Unlike the administrative team leader exemption, he does not propose the parameters of inspections, develop plans of action, or specify milestones for accomplishment.  Specific areas for review are on pre-printed checklists, and vary only by the type of aviation equipment inspected.  The inspection methodology utilized is routine and does not vary from installation to installation.  In addition, as a team leader he has no authority to propose major changes to contractor (vendor) managers on how they should accomplish their contracted work, and has no authority to propose deviations from AMD policies and practices.

Conclusion

The claimant’s work does not meet the executive, administrative, or professional exemption criteria.  Therefore, it is nonexempt and properly covered by the overtime pay provisions of the FLSA. 

Claim Period

Under both regulations applicable during the claim period, all FLSA pay claims filed after June 30, 1994, are subject to a two-year statute of limitations (and three years for willful violations).  See 5 CFR 551.702 (1998) and (2007).  A claimant must submit a written claim to either the employing agency or OPM in order to preserve the claim period.  The date the agency or OPM receives the claim is the date establishing the period of possible back pay entitlement.  The appropriate date for preserving the claim period is June 19, 2009, when OPM received the claimant’s request, and the claim period thus began on June 19, 2007

Willful violation

The claimant contends the agency willfully violated the Act, thus the claim period should be extended to three years.  “Willful violation” is defined 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. 5 CFR 551.104 (1998) and (2007)

Clearly not all violations of the FLSA are willful as this term is defined in the regulations.  There is no question that DOI erred in the claimant’s exemption status determination.  However, to prove willful violation, there must be evidence that DOI showed reckless disregard of the Act’s requirements.  Instead, we find the agency erred in making the exemption determination by relying on a PD we found to be inaccurate (but that agency line management certified as accurate), and not fully addressing all aspects of the governing administrative exemption criteria, particularly in discussing the exercise of discretion and independent judgment and use of standardized inspection procedures and precedents.  The above discussion causes us to conclude the agency’s actions were not deliberate and do not meet the criteria for willful violation as defined in 5 CFR 551.104.

Decision

The claimant’s work is nonexempt (i.e., covered by FLSA overtime provisions), and he is entitled to compensation for all overtime hours worked at the FLSA overtime rate.  The claim was received by OPM on June 19, 2009, and the claimant can receive back pay only for two years prior to that date.  We find no indication of willful violation by the agency.  The agency must follow the compliance requirements on page ii of this decision.

The claimant provided payroll data showing the number of regular hours he worked, and the number of hours of compensatory time he earned, requested and used during Fiscal Years 2007, 2008, and 2009.  Implicit in the claimant’s rationale is that he should be made whole as a matter of equity and because he was not provided information which would have affected his request for compensatory time off in lieu of overtime pay.  Payments of money from the Federal treasury are limited to those authorized by law, and erroneous advice or information provided by a Government employee cannot bar the Government from denying benefits that are not otherwise permitted by law.  Office of Personnel Management v. Richmond, 496 U.S. 414, 110 S. Ct. 2465, rehearing denied, 497 U.S. 1046, 111 S. Ct. 5 (1990).  There is no provision in law to retroactively change a pay decision.  The Government discharged its financial obligation to the claimant in this matter when it granted and/or paid for compensatory time off when requested by the claimant.  However, for any compensatory time he may have earned but not used during the claim period, the claimant has the option of requesting FLSA overtime pay in lieu of compensatory time off in accordance with 5 CFR 551.531.  Therefore, using the claimant’s attendance and payroll records, the agency must reconstruct the claimant’s pay records for the period of the claim to determine if he is entitled to any back pay under the FLSA, and any interest as required under 5 CFR 550.805 and 550.806.  If he believes the agency has incorrectly computed the amount, the claimant may file a new FLSA claim with this office. 

 

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