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


05/30/2017

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Date

Introduction

On May 9, 2012, the U.S. Office of Personnel Management (OPM) received a letter dated May 9, 2012, from the Law Offices of Bernstein & Lipsett, P.C. (B & L), the claimant’s duly appointed representative, concerning a Fair Labor Standards Act (FLSA) claim they had initially filed on the claimant’s behalf with the General Accounting Office (GAO), now the U.S. Government Accountability Office, on June 13, 1990, and subsequently with OPM on June 4, 1999, challenging his exemption status under the FLSA when he was employed in a series of Criminal Investigator, GS-1811-13, and Supervisory Criminal Investigator, GM-1811-14, positions with the U.S. Customs Service (USCS), now integrated into the Department of Homeland Security (DHS).  The claimant was a plaintiff in a lawsuit filed in the U.S. Court of Federal Claims at approximately the same time the administrative claim was filed with GAO.  Based on information provided by B & L, the claimant was awarded back pay under a settlement agreement for the pay period ending June 18, 1988, to the pay period ending October 29, 1994, subject to the two-year statute of limitations for FLSA claims under 29 United States Code (U.S.C.) 255(a).

B & L has requested OPM adjudicate the administrative claim filed with OPM and asserts that, because the claimant served in the military during the Gulf War, the statute of limitations applicable to this claim is the five-year statute of limitations under 31 U.S.C. 3702(b)(2) rather than the two-year statute of limitations (three years for willful violations) applicable to FLSA administrative claims filed under the Barring Act.  See 73 Comp. Gen 157 (May 23, 1994); 31 U.S.C. 3702(b); 29 U.S.C. 255(a).  B & L states the claimant was called to active duty with the United States Army Reserve “from approximately April 15, 1991 to April 26, 1991” in connection with Operation Desert Shield/Storm and, citing the provisions of 31 U.S.C. 3702(b)(2), asserts: “[H]e is entitled to retroactive back pay and interest… for the period he was employed prior to the commencement of the Gulf War on August 2, 1990, up to the date he recovered under previous FLSA settlements.  This period includes August 2, 1985 to June 4, 1988, less Mr. Woodworth’s active duty military service time, for which he does not seek recovery.”

In reaching our FLSA claim decision, we have carefully reviewed all information furnished by the claimant’s representative and the agency, including information obtained from telephonic interviews with the claimant.

Background

We previously accepted and decided six similar claims under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, U.S.C., which we denied as time barred.  Subsequently, the claimant’s representative brought suit under the Administrative Procedure Act (5 U.S.C. 551 et seq., and 701 et seq.) in the United States District Court for the District of Columbia, alleging that OPM wrongfully applied a two-year statute of limitations in denying their administrative claims for unpaid FLSA overtime pay.  Armstrong v. Archuleta, 77 F.Supp.3d 9 (December 30, 2014).  In relevant part, the court stated in its opinion:

All Plaintiffs are deemed to have timely filed their claims as of the date of their filings with the Claims Court. As a result, Plaintiffs . . . can recover for the entire claim period under the five-year statute of limitations- that is, for all claims that accrued within five years before the Gulf War commenced on August 2, 1990—minus monies paid under their DOJ Settlements.

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[T]he case is remanded to OPM to adjudicate and process damages in accordance with FLSA and other applicable laws, and Plaintiffs’ respective employing agencies are directed to compensate them in accordance with OPM’s determinations.

Consistent with the holding in the Armstrong case, we will apply the five-year statute of limitations and corrective methodology (subtracting monies already received under prior settlements or judgments) to the claims of similarly-situated claimants we find to be FLSA nonexempt and potentially due FLSA overtime pay.

Analysis

Under the provisions of 5 CFR 551.706, OPM determines the facts necessary to adjudicate a claim.  From August 2, 1985, to June 4, 1988, the claimant occupied five separate criminal investigator positions.  Applying the court’s mandate to determine whether the claimant is owed overtime pay under the FLSA, we must first determine whether the work he performed while occupying the positions is exempt or nonexempt from the overtime pay provisions of the FLSA.  On September 29, 2015, in response to the aforementioned court decision, OPM requested an agency administrative report (AAR) from DHS regarding this FLSA claim.  By letter dated October 28, 2016, DHS advised OPM that although GS-1811 criminal investigators at the GS-9, 11, and 12 levels were designated exempt, based on their fact finding they should be considered nonexempt.  Regarding the exemption status of criminal investigators at the GS-13 level, the agency references a standard GS-13 position description (PD)(#T046034) used at the time of this claim to describe the work of Senior Special Agents.[1]  The GS-13 criminal investigators “were expected to take on a leadership role in coordinating and directing investigations, providing training, and advising and representing USCS management on critical law enforcement programs involving highly important functions that influence accomplishment of objectives of the entire Customs Service.”  The agency states that “[i]f the Senior Special Agents’ position description is accurate, they could potentially qualify as exempt administrative employees.”  However, the agency indicates that “[a]lthough the duties described above would likely qualify as exempt work, the GS-1811-13 position description also includes a number of non-exempt duties.”  The agency notes these nonexempt duties include conducting “highly complex and sensitive criminal investigations.”  Given their assessment of the PD and the need to clarify the actual duties performed by GS-13 Senior Special Agent claimants, the agency defers to OPM to resolve their exemption status.

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 designation of a position’s FLSA status ultimately rests on the duties actually performed by the employee.

Because the claim period covers 1985 to 1988, we must apply the FLSA regulations of 5 CFR Part 551 (1984) in effect during the period of the claim.  However, in response to a court decision, OPM amended these regulations in 1988 by eliminating the presumption that employees in positions classified at GS-11 and above were exempt from the overtime pay provisions of the FLSA, and changed the criteria for determining whether a Federal employee was an executive under the FLSA.  See 53 Fed. Reg. 1739-01 (January 22, 1988).  The claimant believes his position should have been designated as nonexempt from the overtime pay provisions of the FLSA and thus not covered by the executive, administrative, or professional exemptions as detailed in 5 CFR 551.204, 5 CFR 551.205, and 5 CFR 551.206 of those regulations.

The agency indicates that due to the age of the claim, it could provide only limited information regarding the claimant’s employment with USCS during the claim period.  In its letter of October 28, 2016, to OPM, the agency made no final determination on whether the claimant’s GS-13 and GM-14 criminal investigator positions met the exemption criteria.  Based on careful review of the record and the claimant’s assigned duties and responsibilities, we conclude the claimant’s position did not meet the professional exemption criteria, and the claimant does not disagree.  However, we have evaluated his nonsupervisory GS-13 criminal investigator positions against the administrative exemption criteria, and his supervisory GM-14 criminal investigator positions against both the executive and administrative exemption criteria in effect during the time of the claim.

Analysis of GS-1811-13 position occupied from August 2, 1985, to February 1, 1986[2]

Administrative Exemption Criteria

The regulation under 5 CFR 551.205 describes the administrative exemption criteria as follows:

An administrative employee is an advisor, assistant, or representative of management, or a specialist in a management or general business function or supporting service who meets all of the following criteria:

(a) The employee’s primary duty consists of work that:  (1) significantly affects the formulation or execution of management policies or programs; or (2) involves general management or 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) The employee performs office or other predominantly non-manual work which is:  (1) intellectual and varied in nature; or (2) oOf a specialized or technical nature that requires considerable special training, experience, and knowledge.

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

Although no longer in effect, the definitions of terms used in the FLSA exemption criteria as contained in the Attachment to Federal Personnel Manual (FPM) Letter 551-7, dated July 1, 1975, provide useful guidance in applying the administrative exemption criteria in 5 CFR 551.205 discussed above.  The meaning of terms relevant to the criteria follows.

(a) Primary duty.  As a general rule, the primary duty is that which constitutes the major part (over 50%) of the employee’s work.

(b) Formulation or execution of management policies or programs.  Management policies and programs range from broad national goals that are expressed in statutes or Executive Orders to specific objectives of a small field office.  Employees may actually make policy decisions or participate indirectly, through developing proposals that are acted on by others.  Employees who significantly affect the execution of management policies or programs typically are those whose work involves obtaining compliance with such policies by other individuals or organizations, within or outside of the Federal Government, or making significant determinations in furtherance of the operation of programs and accomplishment of program objectives.  Administrative employees engaged in formulation or execution of management policies or programs typically perform one or more phases of program management (i.e., planning, developing, promoting, coordinating, controlling, or evaluating operating programs of the employing organization or of other organizations subject to regulation or other controls).  Some of these employees are classified in occupations that reflect these functions (e.g., program analyst) but many are classified in subject matter occupations.

(c) General management, business, or supporting services.  This element brings into the administrative category a wide variety of specialists who provide general management, business, or other supporting services as distinguished from production functions.  Administrative employees in this category provide support to line managers by:  (1) providing expert advice in specialized subject matter fields, such as that provided by management consultants or systems analysts; (2) assuming facets of the overall management function, such as safety management, personnel management, or budgeting and financial management; (3) representing management in such business functions as negotiating and administering contracts, determining acceptability of goods or services, or authorizing payments; or (4) providing supporting services, such as automated data processing, communications, or procurement and distribution of supplies.  To warrant exemption, each employee’s work 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.

(d) Participation in the functions of a management official.  This element includes those employees (variously identified as secretaries, administrative or executive assistants, aids, etc.) who participate 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 assistants must be delegated and exercise substantial authority to act for the supervisor in the absence of specific instructions or procedures.  Typically these employees do not have technical knowledge of the substantive work under the supervisor’s jurisdiction.  Their primary knowledge is of administrative procedures, organizational relationships, and the policies, plans, interests and views of the supervisor.

(e) Work of an intellectual nature.  Work requiring general intellectual abilities, such as perceptiveness, analytical reasoning, perspective, and judgment applied to a variety of subject matter fields, or work involving 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.

(f) Work of a specialized or technical nature.  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.

(g) Discretion and independent judgment.  The exercise of discretion and independent judgment involves:  (1) comparing and evaluating possible courses of conduct, and (2) 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 a result of the exercise 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.

The FPM letter lists three elements involved in the evaluation of discretion and independent judgment:  (1) The work must involve sufficient variables as to regularly require discretion and judgment in determining the approaches and techniques to be used, and in evaluating results.  This precludes exempting employees who perform work primarily requiring skill and applying standardized techniques or knowledge of established procedures, precedents, or other guidelines which specifically govern the employee’s action.  (2) The employee must have authority to make such considerations during the course of assignment.  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.  Although this term is not so restrictive as to include only the kinds of decisions made by employees who formulate policies or exercise broad commitment authority, it 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.

The claimant met paragraph (a) of the administrative exemption criteria.  As a criminal investigator assigned to the Office of Enforcement, Office of Investigations, Financial Investigations Division, Liaison and Communications Branch, in Washington, DC, he met the requirements of (a)(1) as his primary duties involved formulating and executing management policies or programs.  His supervisor (i.e., the Financial Investigations Division Chief) and higher-level officials participated in briefings, hearings, and other meetings before Congress and agency heads.  The claimant states his role involved preparing comments and other information regarding the status of the investigations program and budget for use at these high-level meetings and discussions.  He monitored the status of the budget, determining when requests for resources were justified.  For example, he responded to requests from the field should an office require additional manpower or other resources due to spikes in criminal activity.  If an agency head or Member of Congress proposed a new initiative, the claimant evaluated whether the resulting work could be accomplished with existing resources and how (e.g., by which field offices).  Also similar to the requirements of (a)(1), he formulated and executed management policies or programs by developing goals for the field offices to conduct certain types of investigations, coordinating the work with the various offices, and evaluating accomplishments toward meeting the goals and objectives.

The claimant met paragraph (b) of the administrative exemption criteria.  He met (b)(1) as he performed office non-manual work which was intellectual and varied in nature.  In addition to the work described above, he served as a desk officer by responding to inquiries and providing information to field office agents conducting undercover operations, for example, by answering questions regarding the handling of money from agents posing as money launderers.  Although required to abide by specific laws and procedures governing criminal investigations, he could not rely on standardized application of established procedures or precedents.  To answer desk officer inquiries, make resource-related recommendations, and prepare materials for use at high-level meetings, the claimant applied perceptiveness, analytical reasoning, and judgment based on considering, selecting, adapting, and applying criminal investigative principles to numerous variables to advise on what was legal and proper, decide the “best” approach from a broad range of possible actions, and justify recommendations regarding program goals and objectives.

The claimant also met (b)(2) in that his work as a full-performance Special Agent was highly specialized and technical in nature, requiring considerable special training, experience, and knowledge.  He possessed and regularly applied specialized knowledge of the complex subject matter field of Federal criminal investigations, including the principles, techniques, practices, and investigative procedures associated with that field.  This knowledge was acquired through regular and extensive formal agency in-service training and considerable on-the-job training and experience as, for example, a Federal Air Marshal.

The claimant met paragraph (c) of the administrative exemption criteria, as he exercised discretion and independent judgment to perform his normal day-to-day assignments under only general supervision.  In doing so, he had full authority to develop recommendations affecting the direction of program resources and work assignments, participate in setting goals, evaluate accomplishments, and make determinations in the course of undercover operations.  He compared and evaluated the possible courses of action, interpreted results, and independently took action or made decisions after consideration of the various outcomes from directing resources, workload, and investigations.

Therefore, the claimant’s position met the administrative exemption as paragraphs (a), (b), and (c) of the administrative exemption criteria were met.

Analysis of GM-1811-14 position occupied from February 2, 1986, to May 10, 1986

Executive Exemption Criteria

The regulation under 5 CFR 551.204 describes the executive exemption criteria as follows:

An “executive” employee is a supervisor, foreman, or manager who manages a Federal agency or any subdivision thereof (including the lowest recognized organizational unit with a continuing function) and regularly and customarily directs the work of at least three subordinate employees (excluding support employees) and meets all of the following criteria:

(a) The employee’s primary duty consists of management or supervision.  The primary duty requirement is met if the employee:

(1) Has authority to select or remove, and advance in pay and promote, or make any other status changes of subordinate employees, or has authority to suggest and recommend such actions with particular consideration given to these suggestions and recommendations; and

(2) Customarily and regularly exercises discretion and independent judgment in such activities as work planning and organization; work assignment, direction, review, and evaluation; and other aspects of management of subordinates, including personnel administration.

Similar to the executive criteria, the claimant’s primary duty as a GM-14 Supervisory Criminal Investigator was to function as a supervisor assigned to the Office of Enforcement, Office of Investigations, Financial Investigations Division, Investigative Operations Branch, in Washington, DC.  His temporary promotion to the GM-14 position, effective February 2, 1986, was not to exceed May 31, 1986.  The claimant believes the position was assigned to a newly-created organization,[3] and he was temporarily promoted while the agency filled the GM-14 position permanently.  In the meantime, he regularly and customarily directed the work of approximately 10 criminal investigators, analysts, and support staff.  However, in contrast to (a)(1) of the executive exemption criteria, he states he had no authority to select or remove, and advance in pay and promote, or make any other status changes over his subordinate employees.  We were unable to confirm from any other sources whether he held these authorities, but given the short duration and limited purpose of this temporary supervisory assignment, it is doubtful the agency delegated them to him during this period.  Moreover, because the burden of proof lies with the agency to show that a position is FLSA exempt and the USCS has failed to provide any information indicating the claimant retained such authorities, we conclude the claimant did not hold any of them during this brief period.

The claimant’s position did not meet the requirements of (a)(2) of the executive exemption criteria.  Although he managed his subordinates by carrying out aspects of personnel administration including approving leave and providing technical input on the conduct of investigations, he did not customarily and regularly exercise discretion and independent judgment in planning and organizing the work of the organization.  The claimant asserts he worked closely with his supervisor (i.e., the Financial Investigations Division Chief) on making and distributing assignments to the criminal investigators assigned to the organization.  He states he would get the “okay” from his supervisor prior to his making work assignments.  We were unable to confirm from any other sources whether he held these authorities, but given the short duration and limited purpose of his temporary supervisory assignment, in addition to the organization being newly formed at the time, we find it plausible the claimant shared responsibility with his supervisor for assigning and distributing work.  We conclude he did not exercise discretion and independent judgment to assign, direct, review, and evaluate the work performed by subordinate criminal investigators and other staff.

Since the claimant’s position met none of the required executive exemption criteria, the claimant did not meet the executive exemption.

Administrative Exemption Criteria

As described under 5 CFR 551.205, an administrative employee is an advisor, assistant, or representative of management, or a specialist in a management or general business function or supporting service who meets all of the criteria listed under the administrative exemption previously addressed in this decision.  In applying the criteria to the position the claimant held during his temporary promotion, we conclude he did not meet the primary duty requirements typical of administrative employees.  During his temporary promotion, his primary duty was solely to function as the supervisor over approximately 10 criminal investigators, analysts, and support staff.  In that role, he performed none of the tasks characteristic of administrative employees including:  (1) significantly affecting the formulation or execution of management policies or programs; or (2) involving general management or business functions or supporting services of substantial importance to the organization serviced; or (3) involving substantial participation in the executive or administrative functions of a management official.  Therefore, because the claimant’s work during this temporary promotion did not meet the primary duty test of the administrative exemption criteria, we find it was not covered by the criteria.

Analysis of GM-1811-14 position occupied from May 11, 1986, to October 11, 1986

Executive Exemption Criteria

Similar to the executive exemption criteria (see page 7), the claimant’s primary duty as GM-14 Supervisory Criminal Investigator was to serve as Resident Agent in Charge (RAC) in Laredo, Texas, and function as the supervisor by regularly and customarily directing the work of approximately 10 criminal investigators, patrol officers, and support staff.  His position was supervised by the Special Agent in Charge (SAC) assigned to San Antonio, Texas.  The claimant forwarded an unnumbered PD to OPM, which we conclude covers this position as it describes a GM-14 RAC position assigned to the Southwest Region.  The PD states the incumbent “exercises the full range of supervisory and management authority over all Office of Enforcement employees assigned to his/her geographic area of responsibility.”  Based on the PD provided and the claimant’s statements during our interview, we conclude he had authority to select or remove, and advance in pay and promote, or make any other status changes over his subordinate positions similar to (a)(1) of the executive exemption criteria.

The claimant’s position also met the requirements of (a)(2) of the executive exemption criteria.  He customarily and regularly exercised discretion and independent judgment in planning and organizing the work of the office.  In addition, the claimant assigned, directed, reviewed, and evaluated the case work performed by his subordinate criminal investigators and patrol officers.  In managing his subordinates, he also carried out other aspects of personnel administration including approving leave and providing technical input on the conduct of investigations.

The claimant’s position met (a)(1) and (a)(2) of the executive exemption criteria.  Since he met the executive exemption, we will not address his GM-14 supervisory criminal investigator position against the administrative exemption criteria.

Analysis of GM-1811-14 position occupied from October 12, 1986, to April 25, 1987, and GS-1811-13 position occupied from April 26, 1987, to November 21, 1987[4]

Administrative Exemption Criteria

The claimant’s criminal investigations work did not meet paragraph (a) of the administrative exemption criteria (see pages 3-6).  His primary duty was not to serve as an advisor, assistant, or representative of agency management, or as a specialist in a management or general business function or supporting service.  As a criminal investigator assigned to the RAC Laredo office but duty stationed to McAllen, Texas, he spent all of his time investigating criminal violations of various laws governing the illegal sale of drugs and laundering of money.  In a coordinated effort with the U.S. Department of the Treasury (Treasury), the claimant’s role involved ensuring sufficient evidence was gathered that criminal violations had occurred in order for Treasury to pursue civil penalty cases and levy multi-million dollar penalties targeting entities and individuals for their role in the drug trafficking and money laundering activities.

The claimant did not meet the requirements of (a)(1) of the administrative exemption criteria.  Contrary to the agency’s assertion that GS-13 Special Agents advised management officials on “critical law enforcement programs involving highly important functions that influence accomplishment of objectives of the entire Customs Service,” we found the claimant’s primary duties did not significantly affect the formulation or execution of management policies or programs.  As a field office employee assigned to the RAC Laredo office performing the line investigative work of the Office of Enforcement, USCS, he did not make policy decisions or participate indirectly through developing proposals that were acted on by others.  Also unlike administrative employees, he did not perform any phases of program management such as planning, controlling, or evaluating operating programs.

Because the claimant was unable to provide names and/or contact information for his previous supervisor (the SAC San Antonio) or coworkers, we were unable to confirm his primary duties during this period from other sources.  The claimant remained with the RAC Laredo office, although duty stationed to McAllen, Texas, when he was detailed to the nonsupervisory GM-14 position and later assigned to the GS-13 position.  As previously mentioned, the claimant provided his PD for the GM-14 RAC position in the Southwest Region, which we note described the field organization as “a major, highly mobile, investigative and tactical enforcement organization which utilizes the full range of enforcement tools and techniques.”  This description of the RAC office is consistent with an organization that has as its main function the performance of the line investigative and enforcement work of its agency.  Furthermore, the PD describes the RAC who “shares with the [SAC] the responsibility to develop and implement necessary and appropriate investigative and tactical programs and strategies to support National and Regional enforcement priorities; to identity, evaluate, monitor and counteract threats to the laws and regulations of the United States, most specifically the [USCS]; to administer official policy and procedures as they apply to enforcement activities…”  We thus conclude the claimant, when he occupied his nonsupervisory GM-14 and GS-13 criminal investigator positions, did not make policy decisions or participate indirectly through developing proposals that were acted on by others as that responsibility was shared between the RAC and SAC.  Additionally, the burden of proof lies with the agency to show that a position is FLSA exempt, and the USCS has failed to provide any information indicating the claimant’s work significantly affected the formulation or execution of management policies or programs consistent with (a)(1).

The claimant did not meet the requirements of (a)(2) of the administrative exemption criteria.  His primary duties did not involve general management or business functions or supporting services of substantial importance to the organization serviced.  Rather, the claimant performed the line law enforcement work of the USCS.  He was not involved in systems analysis and general management support functions, for example, safety and personnel management, budgeting, and financial management.  The claimant did not represent agency management in negotiating and administering contracts for goods or services, and did not provide support services such as automated data processing, communications, procurement, and distribution of supplies.

The claimant did not meet the requirements of (a)(3) of the administrative exemption criteria.  His assignments did not involve substantial participation in the executive or administrative functions of a management official.  He did not act as a secretary or administrative assistant participating in portions of the managerial or administrative functions of a supervisor, with no requirement for technical knowledge of the substantive work under the supervisor’s jurisdiction.  Unlike such employees, the claimant independently performed the line work of the USCS’s Office of Enforcement in a field office requiring technical knowledge of substantive law enforcement and criminal investigative work relating to drug smuggling, money laundering, and other criminal violations of laws investigated by his agency.

Under (b)(1) of the administrative exemption criteria, the claimant performed office non-manual work which was intellectual and varied in nature.  In carrying out criminal investigations concerning violations of numerous laws and regulations administered by USCS, the claimant applied perceptiveness, analytical reasoning, and judgment based on considering, selecting, adapting, and applying criminal investigative principles to numerous variables.  In doing so, he determined the best approach to each case and the investigative techniques needed to substantiate it (e.g., interviews of subjects and witnesses, taking pictures of principals of the drug group, and developing and gathering supportable evidence for presentation to Treasury) in order to identify the violation and assess the scope of the illegal activity.  The claimant was required to abide by specific laws and USCS procedures governing the methods and collection of evidence as a law enforcement agent; however, in developing criminal cases, he considered the effect of alternative investigative methods, adapting techniques and procedures as appropriate to the nature and extent of the violation.

Under (b)(2) of the administrative exemption criteria, the claimant’s work as a full-performance Special Agent was highly specialized and technical in nature, requiring considerable special training, experience, and knowledge.  He possessed and regularly applied specialized knowledge of the complex subject matter field of Federal criminal investigations, including the principles, techniques, practices, and investigative procedures associated with that field.  This knowledge was acquired through regular and extensive formal agency in-service training and considerable on-the-job training and experience as, for example, a Federal Air Marshal.

The claimant’s work met paragraph (c) of the administrative exemption criteria, as he exercised discretion and independent judgment in performing his normal day-to-day criminal investigations work under only general supervision.  In doing so, he developed and expanded investigations, comparing and evaluating possible courses of action and necessary investigative techniques to efficiently utilize resources and achieve the goal of the investigation in proving the elements of a crime had been committed.  He interpreted results gathered from investigative leads (e.g., from informants, witnesses, and photographs) and made decisions on subsequent investigative steps after considering the various possibilities.  He also reviewed evidence gathered by other investigators to consider whether it was appropriate and sufficient to be incorporated into the case to Treasury.  Since his case involved numerous variables in terms of the investigative procedures needed because of the scope and complexity of the violations, he regularly applied discretion and judgment in determining approaches, techniques, and in evaluating results.  As a GM-14 and GS-13 criminal investigator, the claimant had full authority to make such determinations during the course of the investigation, consulting with his supervisor on the status of cases.  His investigative decisions were more significant than just making decisions on procedural details, or deciding whether a situation conformed to clearly applicable criteria.  Although he had to follow specific legal requirements for gathering and admitting evidence and writing affidavits, he independently made decisions on significant matters affecting case development, including deciding on the inclusion or exclusion of evidence and identifying the most effective investigative techniques and processes to build a comprehensive case for Treasury.

Although the claimant’s position met paragraphs (b) and (c) of the administrative exemption criteria, it failed to meet all of the required exemption criteria because it did not meet paragraph (a) of the criteria.  Therefore, we conclude the claimant did not meet the administrative exemption.

Analysis of GS-1811-13 position occupied from November 22, 1987, to June 4, 1988

Administrative Exemption Criteria

The claimant’s criminal investigations work did not meet paragraph (a) of the administrative exemption criteria (see pages 3-6).  His primary duty was not to serve as an advisor, assistant, or representative of agency management, or as a specialist in a management or general business function or supporting service.  As a criminal investigator assigned to the RAC Nogales office, he spent all of his time investigating criminal violations of laws governing fraud relating to trademarks.  Stemming from the RAC office’s seizure of a shipment of counterfeit sneakers in Nogales, the claimant conducted investigations into its source and other contributors, which involved conducting interviews, surveillance, undercover operations, and other investigative techniques.

The claimant did not meet the requirements of (a)(1) of the administrative exemption criteria.  Contrary to the agency’s assertion that GS-13 Special Agents advised management officials on “critical law enforcement programs involving highly important functions that influence accomplishment of objectives of the entire Customs Service,” we found the claimant’s primary duties did not significantly affect the formulation or execution of management policies or programs.  As a field office employee assigned to the RAC Nogales office performing the line investigative work of the Office of Enforcement, USCS, he did not make policy decisions or participate indirectly through developing proposals that were acted on by others.  Also unlike administrative employees, he did not perform any phases of program management such as planning, controlling, or evaluating operating programs.

The claimant provided the name and contact information for his previous supervisor at the time (the RAC Nogales), but the phone number was no longer valid.  We were thus unable to confirm his primary duties during this period from his previous supervisor.  However, as previously mentioned, the claimant provided an unnumbered PD for the GM-14 position he occupied as RAC Laredo.  That PD, even though it specified no office or location, applied to the Southwest Region.  Although the claimant submitted the GM-14 PD to confirm the duties and responsibilities performed as RAC Laredo, the PD also describes the work performed and the mission of the RAC offices within the Southwest Region, of which the RAC Nogales office is part.  We thus reason the main function of the RAC Nogales office, like that of the RAC Laredo office, was the conduct of line investigative and enforcement work of the USCS.  We also conclude the claimant, when he occupied the GS-13 criminal investigator position, did not make policy decisions or participate indirectly through developing proposals that were acted on by others as that responsibility was shared between the RAC Nogales and SAC Tucson.  Moreover, the burden of proof lies with the agency to show that a position is FLSA exempt, and the USCS has failed to provide any information indicating the claimant’s work significantly affected the formulation or execution of management policies or programs consistent with (a)(1).

The claimant did not meet the requirements of (a)(2) of the administrative exemption criteria.  His primary duties did not involve general management or business functions or supporting services of substantial importance to the organization serviced.  Rather, the claimant performed the line law enforcement work of the USCS.  He was not involved in systems analysis and general management support functions, for example, safety and personnel management, budgeting, and financial management.  The claimant did not represent agency management in negotiating and administering contracts for goods or services, and did not provide support services such as automated data processing, communications, procurement, and distribution of supplies.

The claimant did not meet the requirements of (a)(3) of the administrative exemption criteria.  His assignments did not involve substantial participation in the executive or administrative functions of a management official.  He did not act as a secretary or administrative assistant participating in portions of the managerial or administrative functions of a supervisor, with no requirement for technical knowledge of the substantive work under the supervisor’s jurisdiction.  Unlike such employees, the claimant independently performed the line work of the USCS’s Office of Enforcement in a field office requiring technical knowledge of substantive law enforcement and criminal investigative work relating to fraud and other criminal violations of laws investigated by his agency.

Under (b)(1) of the administrative exemption criteria, the claimant performed office non-manual work which was intellectual and varied in nature.  In carrying out criminal investigations concerning violations of numerous laws and regulations administered by USCS, the claimant applied perceptiveness, analytical reasoning, and judgment based on considering, selecting, adapting, and applying criminal investigative principles to numerous variables.  In doing so, he determined the best approach to each case and investigative techniques needed to substantiate it (e.g., interviews with informants, trademark owners, and investigators working for trademark owners, and developing and gathering the most supportable evidence for presentation to the U.S. Attorney) in order to identify the violation and assess the scope of the illegal activity.  The claimant was required to abide by specific laws and USCS procedures governing the methods and collection of evidence as a law enforcement agent; however, in developing criminal cases, he considered the effect of alternative investigative methods, adapting techniques and procedures as appropriate to the nature and extent of the violation.

Under (b)(2) of the administrative exemption criteria, the claimant’s work as a full-performance Special Agent was highly specialized and technical in nature, requiring considerable special training, experience, and knowledge.  He possessed and regularly applied specialized knowledge of the complex subject matter field of Federal criminal investigations, including the principles, techniques, practices, and investigative procedures associated with that field.  This knowledge was acquired through regular and extensive formal agency in-service training and considerable on-the-job training and experience as, for example, a Federal Air Marshal.

The claimant’s work met paragraph (c) of the administrative exemption criteria, as he exercised discretion and independent judgment in performing his normal day-to-day criminal investigations work under only general supervision.  In doing so, he developed and expanded investigations, comparing and evaluating possible courses of action and necessary investigative techniques to efficiently utilize resources and achieve the goal of the investigation in proving the elements of a crime had been committed.  He interpreted results gathered from investigative leads (e.g., from informants, trademark owners, and from undercover operations) and made decisions on subsequent investigative steps after considering the various possibilities.  Since his case involved numerous variables in terms of the investigative procedures needed because of the scope and complexity of the violations, he regularly applied discretion and judgment in determining approaches, techniques, and in evaluating results.  As a GS-13 criminal investigator, the claimant had full authority to make such determinations during the course of investigations, consulting with his supervisor only on the status of cases or need for resources (e.g., funding approval for an undercover operation in South Korea to purchase a shipment of counterfeit goods).  His investigative decisions were more significant than just making decisions on procedural details, or deciding whether a situation conformed to clearly applicable criteria.  Although he had to follow specific legal requirements for gathering and admitting evidence, writing affidavits, conducting searches and seizures, and worked closely with the U.S. Attorney in preparing the case, he independently made decisions on significant matters affecting case development.  This included identifying the most effective investigative techniques and processes to build a comprehensive investigation supportable before a Grand Jury or Federal court.

Although the claimant’s position met paragraphs (b) and (c) of the administrative exemption criteria, it failed to meet all of the required exemption criteria because it did not meet paragraph (a) of the criteria.  Therefore, we conclude the claimant did not meet the administrative exemption.

Decision

The claimant’s work did not meet the executive, administrative, or professional exemption criteria when he occupied the following positions:  (1) the GM-14 Supervisory Criminal Investigator position from February 2, 1986, to May 10, 1986; (2) the GM-14 and GS-13 Criminal Investigator position from October 12, 1986, to November 21, 1987; and (3) the GS-13 Criminal Investigator position from November 22, 1987, to June 4, 1988.  Therefore, USCS would have been required to compensate the claimant under the overtime pay provisions of Subpart E of Part 551 of 5 CFR for work performed within the claim period; i.e., within five years before the commencement of the Gulf War on August 2, 1990, and subject to deduction for any monies paid under the claimant’s DOJ settlement agreement.  Since both his active duty military service time[5] and his previous FLSA settlement were for time periods subsequent to June 4, 1988, they are not germane to the overtime pay calculations for the period of the claim covered by this decision.  The agency must follow the compliance requirements on page ii of this decision.

The claimant must submit evidence showing the amount and extent of overtime that was performed as provided for in 5 CFR 551.706(a).  The agency will have the opportunity to review this evidence using any sources of information available, including witnesses, before a determination is made as to whether the claimant is entitled to any back pay under the FLSA and any interest as required under 5 CFR part 550, subpart H.[6]  Any petition for attorney’s fees and expenses must be submitted to the agency out of which this claim arose.  Should the claimant be determined to be entitled to back pay which the claimant believes to be incorrectly computed, the claimant may file a new FLSA claim with this office.

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