Washington, DC

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

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Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


07/01/2016

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Date

Introduction

On October 8, 2014, OPM’s Merit System Accountability and Compliance received a Fair Labor Standards Act (FLSA) claim from Mr. Robert A. Carmack requesting that his time spent in an on-call status from March 17 to August 10, 2014, and later extended via email to OPM (dated November 14, 2014) from September 22 to October 12, 2014, be changed to standby duty under the FLSA and he thus receive FLSA overtime pay covering uncompensated hours for the specified claim period.  During the claim period he served as a Supervisory Detention and Deportation Officer (SDDO), GS-1801-13, at the Adelanto Detention Facility (ADF), Office of Enforcement and Removal Operations (ERO), Los Angeles Field Office (LAFO), Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS), Adelanto, California.  Effective August 23, 2015, the claimant was reassigned as an SDDO to the San Bernardino Sub-Office, ERO, LAFO, in San Bernardino, California.  We received the agency administrative report (AAR) via email on December 10, 2014, and the claimant’s response to the AAR on January 15, 2015.  We 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 with the claimant and his former supervisor. 

General issues

The claimant contends that because his personal activities were so restricted while on-call, all time spent waiting to open emails should be considered hours of work under the standby duty provisions of the FLSA.[1]  Thus, he claims he is due FLSA overtime pay for a total of 1,294 hours, excluding those hours he was previously compensated for under Administratively Uncontrollable Overtime (AUO).  The agency states, and the claimant does not disagree, he has been fully paid AUO pay for all time spent opening and responding to emails.  However, the agency indicates the remaining hours of his on-call status are not compensable as hours of work because he was waiting to be engaged, and thus was off duty until actual work was performed for the benefit of or ordered by the agency. 

Background

While working at the ADF, the claimant was directed to be on-call after his normal duty hours, which the record shows varied from 8:00 a.m.-4:00 p.m., and 7:00 a.m.-3:00 p.m. daily during the claim period covering a Monday through Friday work week.  He was assigned on a duty roster to be on-call for three consecutive weeks at a time, with six week intervals between on-call assignments, during periods when the ADF was closed after normal operating hours.  During the work week he began on-call duty at 6:00 p.m. until the following day when the ADF opened at 5:00 a.m.  On weekends, his on-call duty began at 6:00 p.m. Friday and ran until the facility reopened at 5:00 a.m. the following Monday.  When the claimant was not assigned on-call duty, two other SDDOs were assigned on a rotational basis according to the duty roster.

As on-call officer, the claimant was issued an iPhone (cell phone) with an application for logging into the ICE/ADF’s secure email system using a password when he received a distinct ring tone alerting him of incoming email messages.  He also brought his laptop computer home to use, as needed.  He was required to regularly monitor the operations of the ADF by opening all emails sent to the installation’s common email “mailbox” and be ready to respond appropriately to any items requiring action.  Such action items sometimes required him to use his laptop to research case information and/or prepare reports.  He received on average of twenty-five work related emails daily when on-call.  Approximately 95 percent covered routine matters sent for information only such as bed space availability, segregation of detainees, ICE news releases, housekeeping and maintenance matters from GEO (the ADF operating contractor), release of detainees, etc., and required no response from the claimant.  However, up to 5 percent covered serious matters such as hospitalization or injury of detainees, hunger strikes and assaults, and missing detainees, requiring the claimant look into such incidents by contacting ADF or GEO staff and/or reviewing detainee case files.  Such matters required he prepare a Significant Incident Report (SIR) within 24 hours of the incident for input into ERO’s Significant Event Notification (SEN) system.  He submitted his draft SIR to his supervisor, the Assistant Field Office Director (AFOD), for review, which was then forwarded to the Los Angeles Deputy Field Office Director (DFOD) for approval.  After approval, the claimant input the SIR into the SEN system. 

Evaluation

Period of the Claim

As provided for in 5 CFR 551.702(b), all FLSA claims filed after June 30, 1994, are subject to a two-year statute of limitations, except in cases of willful violation where the statute of limitations is three years.  A claimant 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 pay back entitlement.  Since the claimant has provided no evidence he preserved his claim with his agency prior to filing with OPM, we find the claim was preserved effective October 8, 2014, when it was received by OPM.  The claimant identified the periods of his claim to be March 17 to October 10, 2014, and September 22 through October 12, 2014.  Therefore, the entire period of the claim identified by the claimant falls within the two-year statute of limitations provided for in 5 CFR 551.702(b). 

Position Information

As an SDDO the claimant was assigned to a standard agency position description (PD) number S1304a.  As described in the PD, the claimant provided administrative and technical supervision to a group of employees managing an assigned docket of detainees held in custody at ADF, employees engaged in enforcement, transportation, and removal of detainees, and an employee handling mission support administrative functions for the unit.  The supervised staff performing these functions totaled seven employees including four Deportation Officers, GS-1801-12; two Enforcement and Removal Assistants, GS-1802-7; and one Mission Support Specialist, GS-301-12.  As a first-level supervisor, the claimant assigned, directed, and reviewed the work of employees; adjusted hours of work and approved leave; provided training as needed; maintained production records and appraised employee performance, including completing performance improvement plans; handled minor employee complaints, grievances, and disciplinary actions; ensured necessary supplies were ordered and stocked; provided for the safety and security of his employees and issuance of facility access badges; and monitored implementation of legal requirements regarding the disposition of detainees. 

Based on our interviews and review of the standard PD, we find some portions to be inaccurate.  Contrary to the PD, the claimant did not establish guidelines and performance expectations (i.e., performance standards) for staff members.  These are developed at the field office or higher organizational levels.  The claimant did not serve as “principal advisor on all administrative management matters associated with programs and operations for a significant organizational segment of an agency, such as a regional office, Center, or major field installation.”  That role is limited to the AFOD who advises the Los Angeles DFOD on all such matters relating to operations of the ADF.  Unlike the PD, while in performing his supervisory responsibilities the claimant interpreted administrative procedures and policies, he did not make recommendations for their establishment or participate in discussions on such matters.  Areas where he could interpret procedures were limited to mission related work such as determining the proper document needed to complete a particular filing, e.g., reinstatement of a detainee removal action.  He did not advise higher management officials on the “administrative feasibility of operating plans, suggestions, and proposals” affecting the facility.  Responsibility for such issues is held by the AFOD.  However, he did advise his supervisor in planning for additional positions and dealing with staffing shortfalls in his unit. 

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. (e) The designation of a position’s FLSA status ultimately rests on the duties actually performed by the employee.  Our analysis of the claimant’s duties follows.  

Based on a 2009 settlement agreement stemming from a lawsuit previously filed against the agency by a group of approximately two hundred SDDOs, the agency agreed to designate the positions non-exempt (covered by the overtime pay provisions of the FLSA).  This action impacted the claimant’s position as well.  OPM was not party to the agreement; therefore, the agreement is not binding on OPM.  OPM reviews FLSA exemption status determinations under 29 U.S.C. 204(f).   After independent review of the claimant’s position at the time he worked at the ADF (as discussed below), we find it neither fully met the executive exemption criteria addressed in 5 CFR 551.205 nor the administrative exemption criteria discussed in 5 CFR 551.206.  In addition, it did not meet the professional, learned professional, or creative professional exemption criteria discussed in 5 CFR 551.207, 551.208, and 551.209, because it did not meet the primary duty tests and professional education requirements. 

Executive exemption

The record shows that although the claimant’s primary duty was management because he carried out many of the management responsibilities defined in 5 CFR 551.104, he did not have all of the personnel management authorities necessary to meet the executive exemption criteria.  For example, he did not have authority to hire employees, and he rarely (no more than 3 or 4 times in his career) participated in any interview panels that would have made selection/hiring recommendations.  Hiring authority is limited to the Los Angeles Field Office Director (FOD).  He had no authority to fire, or make recommendations on the firing of employees.  Such authority lies with the FOD whose actions are based on investigations by the agency’s Joint Intake Center and/or the Office of the Inspector General.  He had no authority to promote or make recommendations on the promotion of employees, particularly those in career ladders.  Only the AFOD had authority to recommend such promotions to the FOD.  Moreover, awarding within-grade-increases was “automatic” with no input from the claimant.  Thus, the limited scope of the claimant’s supervisory authority and the limited frequency with which he exercised that authority or provided recommendations given particular weight by his supervisor preclude his exemption under the executive exemption criteria.

Administrative exemption

The claimant’s position also did not fully meet the administrative exemption criteria.  Although he performed office or non-manual work related to managing the detention and deportation activities of his unit, his primary duties did not include the exercise of discretion and independent judgment with respect to matters of significance.  While he could exercise his delegated authority to hold or release detainees, specific agency guidelines, procedures, and policies based on immigration laws precluded him from making decisions which would meet the discretion and independent judgment threshold with respect to matters of significance.  His decisions regarding docket management were constrained by legal and agency mandated requirements governing timeframes, supporting documentation, and severity of charges holding a detainee at the ADF.  Unlike the administrative exemption criteria, he had no authority to formulate, affect, interpret, or implement management policies at his level (the FOB retained such authority) or commit his employer in matters having significant financial impact.  Rather than major assignments, he carried out short term ones related to daily detention and deportation actions, and had no authority to waive or deviate from established policies or procedures without prior approval of the AFOD.  As discussed above, all tasks were managed and carried out in accordance with specific legal requirements and agency directives.  In contrast to the administrative exemption criteria, he was not authorized to negotiate and bind his organization on significant matters, and responsibility for providing expert advice to agency management officials was furnished by ICE legal and headquarters ERO staff.  He was not involved in planning long or short term organizational objectives; did not investigate and resolve matters of significance on behalf of management; and was not authorized to represent the ADF in handling complaints, arbitration disputes, or resolving grievances. 

Based on the preceding discussion, we conclude the claimant’s position did not meet the executive, administrative, or professional exemption criteria.  Therefore, it is non-exempt and subject to the overtime pay provisions of the FLSA. 

Claim Analysis

Under the FLSA, time spent on standby duty is hours of work; however, time spent on-call is not hours of work.  The applicable criteria are found in 5 CFR 551.431: 

(a)(1)  An employee is on duty, and time spent on standby duty is hours of work if, for work-related reasons, the employee is restricted by official order to a designated post of duty and is assigned to be in a state of readiness to perform work with limitations on the employee’s activities so substantial that the employee cannot use the time effectively for his or her own purposes.  A finding that employee’s activities are substantially limited may not be based on the fact that an employee is subject to restrictions necessary to ensure that the employee will be able to perform his or her duties and responsibilities, such as restrictions on alcohol consumption or use of certain medications. 

(2)  An employee is not considered restricted for “work related reasons” if, for example, the employee remains at the post of duty voluntarily, or if the restriction is a natural result of geographic isolation or the fact that the employee resides on the agency’s premises.  For example, in the case of an employee assigned to work in a remote wild land area or on a ship, the fact that the employee has limited mobility when relieved from duty would not be a basis for finding that the employee is restricted for work related reasons. 

(b)  An employee will be considered off duty and time spent in an on-call status shall not be considered hours of work if: 

(1)   The employee is allowed to leave a telephone number or to carry an electronic device for the purpose of being contacted, even though the employee is required to remain within a reasonable call-back radius; or

(2)   The employee is allowed to make arrangements such that any work which may arise during the on-call period will be performed by another person. 

The claimant contends that because he was required to immediately open all emails while on-call to identify those needing action, coupled with the fact they came in randomly at any time throughout his on-call duty period, his personal activities were so highly restricted that he had to remain at his residence most of the time.  He indicates that while on-call he could hardly get through his church worship service or participate in the worship band practices without interruption; could not visit his grown children at their residences; or go grocery shopping, to a mall, movie or restaurant, or even carry out uninterrupted conversations with his spouse at their home.  He also notes that because emails came in at all hours of the night, his sleep was regularly disrupted to check them.  Given the preceding restrictions on his personal activities due to the volume and frequency of emails (and need to immediately open them), the claimant believes all his time spent waiting to open emails should be considered hours of work under the standby duty provisions of the FLSA. 

Standby duty status

Both the claimant and the agency agree he was not restricted by official order for work related reasons to a designated post of duty.  However, the claimant believes given the volume and frequency of emails, and requirement to immediately open all of them to identify those needing prompt action, he was effectively assigned to be in a state of readiness to perform work with limitations on his activities so substantial that he could not use the time effectively for his own purposes (as discussed above) and generally had to remain at home.  He bases this conclusion on his interpretation of a September 19, 2014, email to him from his supervisor (AFOD) in which the supervisor states “…we are responsible to respond timely based on case specifics.”  The AFOD states if a hospitalized detainee dies, immediate action is necessary to meet timely reporting requirements.  However, if there is nothing critical with a hospitalized detainee, “we have the 24 hour reporting timeline.”  The record shows that in claims of sexual assault, there is a two hour window to report the incident telephonically to the agency headquarters Joint Intake Center (JIC).  Because in most cases in this situation the ADF Warden alerts the AFOD before an email goes out, the AFOD makes the call to the JIC.  On-call SDDOs are not authorized to make these calls.  In his email, the supervisor notes “[t]he checking of emails throughout the day will be necessary to determine what type of case action is needed.”  From this statement the claimant concludes all emails must be immediately opened.  However, the supervisor adds “[w]e can’t use a standard response time due to the nature of our cases.”  When interviewed, the supervisor confirmed this statement indicating that except in extreme circumstances (usually apparent from the email subject line), it was up to the discretion of the claimant and the other on-call SDDOs to review emails on a cycle of their choosing, within a range of about four to six hours[2], and there was no intent to restrict their personal activities or require they immediately open emails. 

While we recognize the claimant’s personal activities may have been intermittently interrupted to check emails, we conclude the agency placed no limitations on those activities so substantial that he could not use the time effectively for his own purposes.  For instance, the claimant indicated that while on-call he attended church services and worship band practices, even though the vibrating signals from his phone alerted him to emails coming in.  Because most emails were routine, providing only information and needing no action, they could be opened and reviewed quickly, thus freeing up time for the claimant to engage in personal activities.  The only requirement was that they all be opened during the assigned on-call period, and that the on-call SDDOs take appropriate action on those involving significant events. 

The claimant perceived he had to immediately open all emails to identify those actions requiring preparation and submission of SIRs right away.  However, based on the record (and confirmed by the supervisor), as stated in a memorandum of March 11, 2003, from the ICE Acting Assistant Secretary to all bureau employees, written reports of any significant incident, event, or matter were to be submitted to ICE Headquarters Reporting Center no later than 24 hours after the occurrence of the incident.  Given this time frame, the claimant’s supervisor noted the claimant did not have to take immediate action, as long as he submitted the draft report for review and approval to the AFOD and DFOD two to three hours prior to expiration of the time limit.  After approval, the claimant was authorized to enter the SIR into the SEN system.  Therefore, in most cases he could wait to open and act on even an urgent email and depending on when the event occurred, could prepare a SIR back at work after on-call duty if the overall time frame, including internal review, had not expired. 

The claimant also states that because he believed all emails must be immediately opened, even when they arrived during his sleep time, he was obliged to awaken to check them and respond as necessary.  However, his supervisor disagreed, stating that management did not expect the claimant or any other on-call SDDO to open and check emails during their sleep time.  He emphasized each was entitled to eight hours of uninterrupted sleep, and given the operating instructions described above there was ample time for the claimant to check emails before bedtime and after awakening in the morning. 

Given the record before us, we conclude the claimant was not on standby duty. 

On-call status

The claimant met the on-call requirements of the regulation.  Similar to the regulation, he was allowed to carry an agency issued cell phone (iPhone) through which he logged into the agency’s email mailbox to read emails, and could directly receive and place calls as well.  He was required to remain within the phone’s call-back radius so he could log into emails or receive calls, which did not present a problem because he lived within that radius.  He could place the phone on a “vibrate” setting to alert him to any incoming calls or emails if doing personal activities.  In addition, the claimant stated he was allowed to make arrangements with another SDDO to “cover” all or portions of his on-call duty.  The supervisor confirmed the SDDOs could exchange on-call assignments so long as he was informed of the change. 

The information provided by the claimant, his supervisor, and the agency indicate he was in an on-call status rather than on standby duty during the claim period. 

Decision

The claimant was in an on-call status and time spent in an on-call status is not considered hours of work under the FLSA.  Therefore, no FLSA overtime pay is due. 

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