Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
Disaster Emergency Communications Division
Response Directorate
Office of Response and Recovery
Federal Emergency Management Agency
U.S. Department of Homeland Security
Bothell, Washington
Damon B. Ford
Acting Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
09/24/2021
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 and inform them in writing of their right to file an FLSA claim with the agency or OPM. 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 in this decision, then pay the claimant any amount owed him. If the claimant believes that the agency has incorrectly computed the amount owed him, he may file a new FLSA claim with this office. Compliance action on this decision must be completed within 60 days of the date of this decision as provided for in 5 CFR 551.708(c)(1).
Introduction
On June 30, 2020, OPM’s Merit System Accountability and Compliance received a Fair Labor Standards Act (FLSA) claim from Mr. Jacob A. LaDuke requesting a review of his position’s FLSA designation during numerous emergency deployments between 2016 and 2019 when he served as an Information Technology (IT) Specialist, GS-2210-12, temporarily deployed as a Mobile Emergency Response Support Specialist (MERS) for information technology or as a MER Support Coordinator (MECO). The claimant is assigned to the Mobile Emergency Response Support Bothell Detachment, Disaster Emergency Communications Division (DECD), Response Directorate, Office of Response and Recovery, Federal Emergency Management Agency (FEMA), U.S. Department of Homeland Security in Bothell, Washington. We received the agency administrative report (AAR) on July 30, 2020 and have accepted and decided this claim under section 4(f) of the FLSA of 1938, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).
Background and general Issues
On April 23, 2020, the claimant’s agency issued an FLSA claim decision to the claimant stating that the duties described in his steady-state (permanent) standardized position description (PD) number PH 3092 included the work he performed during both permanent and FEMA emergency work deployments. The agency decision concluded that both his permanent and emergency deployment work is exempt (i.e., not covered by the overtime pay provisions of the FLSA) based on comparison of the FLSA’s Computer Employees exemption criteria (5 CFR 551.210) to the duties described in the claimant’s PD.
In his original OPM claim, the claimant disagreed with his agency’s determination that based on information received from the Disaster Emergency Communications Cadre Coordinator, the work he performed while deployed is outlined in his steady-state (permanent) position, which is FLSA exempt, and consequently denied his claim. He took exception to the agency’s decision to exempt his emergency work based on application of the FLSA’s Computer Employee exemption criteria (5 CFR 551.210), asserting that while deployed for FEMA emergencies he did not perform many of the administrative and complex computer and telecommunication technical support duties and responsibilities described in his standardized PD. However, during subsequent interviews and email communications with OPM, the claimant revised his original claim stating he did not perform many of the administrative and complex computer and telecommunication technical support duties and responsibilities described in his standardized PD under either his steady-state or emergency work conditions. Therefore, he believes his position should be FLSA nonexempt (i.e., covered by the overtime pay provisions of the FLSA) and that he should be awarded back pay for hours of overtime worked under both steady-state and emergency situations during the claim period.
Position Information
Initially both the claimant’s current and former supervisors indicated the claimant’s standard PD accurately describes the duties and responsibilities performed by him in both Steady-state and FEMA emergency work conditions during the claim period. However, during subsequent interviews these individuals identified duties and responsibilities in the claimant’s official PD which were incorrect, not performed, or overstated in both his permanent and emergency assignments. As discussed in 5 CFR 551.202(e), while established PDs and position titles “may assist in making initial FLSA exemption determinations, the designation of an employee as FLSA exempt or nonexempt must ultimately rest on the duties actually performed by the employee.” In adjudicating this claim we applied this principle and found that the duties described in the claimant’s official PD were significantly inaccurate. For example, the PD states the claimant is responsible for designing, implementing, integrating, and troubleshooting LAN distribution and cabling systems utilizing CISCO routers and “10 Base T” switches and hubs in the Regional Office and various Disaster Field Offices (DFOs). However, interviews disclosed the claimant’s work is not performed within the organizational context of the Regional Office and DFOs nor is he responsible for designing, implementing, integrating, and troubleshooting “10 Base T” switches and hubs. Instead, his work is primarily performed within the organizational context of the MERS office and for short periods of deployment for FEMA emergencies. Responsibility for designing, implementing, integrating, and troubleshooting “10 Base T” switches and hubs rests with higher-level agency technicians.
The PD states the claimant provides recommendations concerning the installation of new or modified bridges and multiplexes and he is responsible for installing, maintaining, troubleshooting, testing, and documenting network hubs. However, our fact-finding disclosed the claimant is not responsible in his Steady-state or emergency deployed work for recommending the installation of new or modified bridges or multiplexes nor responsible for installing, maintaining, troubleshooting, testing, or documenting hubs.
The PD states the claimant plans, develops, supports, coordinates, integrates, installs, implements, troubleshoots, administers, and pilots new FEMA software applications, including Travel Manager, ADDS, LIMS, Archserve Backup software, Norton Anti-Virus software, or Hewlett Packard JetDirect Print services software and electronic systems. However, the claimant is not responsible in his Steady-state or during deployments for planning, developing, supporting, coordinating, integrating, installing, implementing, troubleshooting, administering, and piloting Travel Manager, ADDS, LIMS, Archserve Backup software, Norton Anti-Virus software, or Hewlett Packard JetDirect Print services software and electronic systems.
The PD also states the claimant plans, develops, coordinates, integrates, installs, implements, and provides network administration, system management and technical support to both MERS Detachment and DFO servers and client workstations running on Microsoft and Novell operating systems. However, the claimant is not responsible for any tasks associated with Novell systems, and does not provide system administration or technical support to DFO servers and client workstations.
FEMA’s DECD is composed of ten regional Mobile Emergency Response detachments responsible for anticipating, responding to, and supporting the recovery from a variety of emergencies and natural disasters affecting the United States and its territories and possessions. The claimant is one of five IT Specialists providing computer, telecommunication, and system administration technical support for the Bothell Detachment.
During the claim period, the claimant spent approximately 80 percent of his time performing a variety of routine computer, telecommunication, and system administration technical support duties and responsibilities while operating under Steady-state work conditions.
The claimant followed clearly defined guidance, methods, and processes during the performance of his Steady-state work. He established and monitored employee accesses to Mobile Emergency Response (MER) Bothell Detachment’s (MBD) systems and instructed new employees regarding a variety of established technical and administrative processes and procedures associated with accessing and operating MBD computer and telecommunication systems; provided technical support (e.g., installation, testing, and troubleshooting) for new and existing systems and various platforms, operating systems, applications, and desktop configurations; and resolved customer support requests involving integration and/or configuration-related issues within the MBD office and emergency response vehicle (ERV).
He identified computer, telecommunication, and system administration problems, based on established manufacturer or agency specifications and guidelines; coordinated with other MBD network specialists, applications developers, and security specialists to prevent recurring problems; performed required network resource allocations; and monitored customer program workflows.
He provided computer technical support for MBD Local Area Network (LAN) and Wide Area Network (WAN) systems in accordance with established guidelines and manufacturer specifications; installed LAN distribution and cabling systems utilizing readily available computer hardware (e.g., CISCO routers and network switches); monitored operability of network configurations; performed standard tests to ensure networks operated within prescribed parameters; and applied security patches in accordance with manufacturer specifications and MBD standard operating procedures (SOP).
He made modifications to existing LANs and associated components (e.g., communication lines, switches, routers, and modems) within manufacturer specifications and agency guidelines; coordinated the installation, maintenance, and troubleshooting of telecommunications services and components within the MBD office and onboard ERVs; maintained records of the computer, telecommunication, system administration, and LAN-based service configuration work he performed; and provided information, observations, recommendations, and reports to his supervisor for consideration and further action.
He reviewed manufacturer specifications, performed basic cost comparisons, and performed pilot reviews of new off-the-shelf software applications and electronic systems and proposed alternatives to his direct supervisor.
He provided technical support to, and coordinated with, other personnel regarding the integration, installation, implementation, network administration, and system management of the MBD’s servers and client workstations running on Microsoft operating systems; maintained an equipment inventory sufficient for replacing failed equipment and to maintain the continuous operability of the network; and acted as a mentor/trainer for new IT Specialists.
The claimant also spent approximately 20 percent of his time performing either MERS IT Specialist or MECO work while deployed for FEMA emergencies during the claim period. The IT Specialist work performed by the claimant during deployment for FEMA emergencies during the claim period was substantively the same as his previously described Steady-state work. However, the MECO work consisted of substantively different and more complex technical and administrative team leader duties and responsibilities. For example, the claimant provided the full range of technical and administrative leadership and direction to his MBD team and ensured all MBD vehicles were equipped, supplied, and fully operational in accordance with MBD checklists and SOPs.
When assigned as the MECO for a FEMA emergency, the claimant identified topics, issues, and concerns of potential relevance; coordinated with his immediate supervisor to develop Operational Tactics; used the Operational Planning Worksheet (ICS 215) to develop tasks and identify resource assignments; and attended the Operations Tactics meeting when requested.
When deployed, he coordinated with a variety of other Federal agencies, as well as various State, local, and tribal emergency response organizations and personnel to identify, evaluate, and develop a systematic approach to restore the operability of existing computer and telecommunication systems and return control of these systems to the original administrators as quickly as possible. He shared critical information, tactics, and contingency plans; evaluated computer and telecommunication issues resulting from emergencies and disasters; and developed and proposed systematic approaches for establishing temporary computer and telecommunication capabilities.
He also coordinated with FEMA’s Incident Management Supervisors (IMS) and all appropriate organizations, groups, and individuals in order to transition back to normal operating conditions once sufficient computer and telecommunication systems operability had been achieved.
On deployments he reviewed DECD’s and MBD’s Incident Action Plans (IAP) and other related plans with MBD’s resource leader and conferred with other response personnel to confirm the accuracy and feasibility of goals and expectations for the operational period of the FEMA emergency. He identified potential hazards associated with each base site and developed and shared safety procedures specific to each emergency response site.
He provided technical information to all participating non-agency organizations and personnel on the basic capabilities of MERV land mobile radio (LMR) systems, mobile emergency satellite systems and operating requirements, and command and control vehicles and personnel requirements; and provided detailed information concerning mobile emergency disaster preparedness capabilities.
He also facilitated the preparation and submission of final travel vouchers and obtained team performance appraisals from the IMS for each of his MBD team members; ensured all vehicle(s) and equipment were properly recovered and that all reports were developed and submitted in accordance with established MBD SOP; performed regular briefings and provided information for his MBD team; and developed and submitted an estimated timeline for transition and departure to the site IMS and MBD command.
In reaching our FLSA decision, we have carefully reviewed all information gained through separate interviews with the claimant, his current and former supervisors, and his servicing Human Resources (HR) office, as well as documents and information provided by the claimant and his agency.
Evaluation
Period of the Claim
As provided for in 5 CFR 551.702(b), all FLSA claims filed on or 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 back pay entitlement (5 CFR 551.702(c)). The claimant makes no assertion of willful violation. The record shows the agency issued a formal FLSA claim decision on April 23, 2020, denying the claimant’s request to have his FEMA emergency work determined FLSA nonexempt. While the claim decision references contacts by the claimant with his human capital office in 2019, “to review his overtime compensation while deployed as a” MERS Specialist and Coordinator, it does not specifically identify a date the agency received a formal claim from him. However, the record contains an email from the claimant received by the agency on May 21, 2019, in which the claimant questions the agency’s review process of his FLSA designation. This is OPM’s earliest known communication from the claimant to his agency regarding his FLSA claim. Therefore, given the agency issued a formal claim decision the claim is preserved effective May 21, 2019, and is subject to a two-year statute of limitations commencing on May 21, 2017.
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 that asserts the exemption. (d) An employee who clearly meets the criteria for exemption must be designated FLSA exempt. 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. There are three exemption categories applied to Federal employees: executive, administrative, and professional (including learned professional). As documented in the “FLSA Checklist” attached to the claimant’s PD, the agency determined the claimant’s duties do not meet the executive, or professional (including learned professional) criteria and the claimant does not disagree. After careful review we concur with the agency thus have not addressed those criteria separately in the analyses that follows.
In the agency’s FLSA claim decision, it states the duties performed by employees deployed in MERS/MECO positions (which includes the claimant) retain the FLSA status of their steady-state (permanent) positions, which in the claimant’s case is FLSA exempt. Thus, all the claimant’s work meets the computer employee exemption criteria (i.e., 5 CFR 551.210) of the FLSA addressed in the evaluation of his standard PD of record. However, after a careful review of the actual work performed by the claimant, we disagree with the agency’s determination to exempt the claimant’s steady-state work based on the computer employee exemption criteria. We also find the claimant’s steady-state work does not meet the administrative exemption criteria (i.e., 5 CFR 551.206) as discussed below.
- Computer Employees Exemption Criteria
The current regulation under 5 CFR 551.210 describes the criteria for exemption for computer employees in relevant part, as follows:
(a) Computer systems analysts, computer programmers, software engineers, or other similarly skilled workers in the computer field are eligible for exemption as professionals under section 13(a)(1) of the Act and under section 13(a)(17) of the Act. Because job titles vary widely and change quickly in the computer industry, job titles are not determinative of the applicability of this exemption.
(b) The exemption in section 13(a)(1) of the Act applies to any computer employee whose annual remuneration exceeds the salary-based non-exemption prescribed in §551.203. The exemption in section 13(a)(17) applies to any computer employee compensated on an hourly basis at a rate of basic pay (as defined in §551.203(b)) not less than $27.63 an hour. In addition, these exemptions apply only to computer employees whose primary duties consist of: (1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; (2) The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; (3) The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or (4) A combination of the aforementioned duties, the performance of which requires the same level of skills.
(c) Computer manufacture and repair. The exemption for employees in computer occupations does not include employees engaged in the manufacture or repair of computer hardware and related equipment. Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs (e.g., engineers, drafters and others skilled in computer-aided design software), but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related occupations as identified in paragraph (b) of this section, are also not exempt computer professionals.
(d) Executive and administrative computer employees. Computer employees within the scope of this exemption, as well as those employees not within its scope, may also have executive and administrative duties which qualify the employees for exemption under this subpart. For example, systems analysts and computer programmers generally meet the duties requirements for the administrative exemption if their primary duty includes work such as planning, scheduling, and coordinating activities required to develop systems to solve complex business, scientific or engineering problems of the organization or the organization’s customers. Similarly, a senior or lead computer programmer who manages the work of two or more other programmers in a customarily recognized organizational unit, and whose recommendations regarding the hiring, firing, advancement, promotion, or other change of status of the other programmers are given particular weight, generally meets the duties requirements for the executive exemption. Alternatively, a senior or lead computer programmer who leads a team of other employees assigned to complete a major project that is directly related to the management or general business operations of the employer or the employer’s customers generally meets the duties requirements for the administrative exemption, even if the employee does not have direct supervisory responsibility over the other employees on the team.
The steady-state work performed by the claimant during the claim period does not meet the criteria for exemption of computer employees detailed in 5 CFR 551.210.
While the claimant’s annual rate of basic pay substantially exceeds the salary-based non-exemption criteria provided in 5 CFR 551.203, his position fails to meet the additional computer employees exemption criteria described in 5 CFR 551.210 (b)(1-4) whose primary duties consist of those tasks listed in that section. Unlike the occupations listed in 5 CFR 551.210(a), the claimant is not a computer systems analyst computer programmer, software engineer, or other similarly skilled worker in the computer field eligible for exemption as a professional. Instead, he performs routine computer, telecommunication, and system administration technical support work. He responds to standard customer service requests (e.g., passwords, accesses, troubleshooting common computer and telecommunication issues); maintains the day-to-day functionality, operability, and security of existing MBD and MERV systems and networks; provides basic maintenance and repairs to MBD and MERV computers and related telecommunication equipment, such as performing scheduled system upgrades as per manufacturer specifications; and performs routine tests and installs off-the-shelf communication lines, switches, routers, and modems.
Unlike the computer employees exemption, the claimant’s steady-state work also does not meet the primary duty test because he is not responsible for applying systems analysis techniques and procedures to determine hardware, software, or system functional specifications; designing, developing, documenting, analyzing, creating, testing or modifying computer systems or programs, including prototypes, based on and related to user or system design specifications; or designing, documenting, testing, creating and modifying computer programs related to machine operating systems.
In contrast to the computer employees exemption, the claimant’s steady-state work does not include analyzing MBD, DECD, or FEMA computer systems or networks, nor does it include consulting with users to determine hardware, software, or system functional specifications as envisioned in 5 USC 551.210. Instead, his work involves responding to routine customer service requests such as installation of standard pre-approved agency programs and applications, and access to various computer applications, programs, and networks. Responsibility for conducting analysis of MBD, DECD, or FEMA computer systems and networks and consulting with users to determine hardware, software or system functional specifications rests with higher-level computer programmers, analysts, and engineers within the agency.
Unlike the computer employees exemption, the claimant’s steady-state work does not involve designing, developing, documenting, analyzing, creating, testing or modifying computer systems or programs, including prototypes, based on and related to user or system design specifications; nor does it include designing, documenting, testing, creating or modifying computer programs related to machine operating systems. These responsibilities rest with higher-level computer programmers and engineers within the agency.
Section 551.210(c) describes employees engaged in computer manufacture and repair of computer hardware and related equipment noting that such employees are not covered by the exemption. This does not apply to the claimant’s position as he does not perform such duties.
Unlike the criteria discussed in 5 CFR 551.210(d), we concur with the agency that the claimant’s position does not meet the executive criteria addressed in 5 CFR 551.205. In addition, because the claimant does not function as a systems analyst or computer programmer performing duties such as planning, scheduling, and coordinating activities required to develop systems to solve complex business, scientific or engineering problems of MBD, DECD, FEMA or its customers, as discussed later in this decision he does not meet the administrative exemption discussed in 5 CFR 551.206.
Based on the preceding analysis, the claimant’s steady-state work (and by extension his deployed work during the claim period) does not meet the criteria for the computer employees exemption.
- Administrative Exemption Criteria
The current regulation under 5 CFR 551.206 describes the administrative exemption criteria, in relevant part, as follows:
An administrative employee is an employee 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.
(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 operations 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; and
(10) Represents the organization in handling complaints, arbitrating disputes, or resolving
grievances.
(c) 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 discretion and independent judgment does not require that decisions made by an employee have a finality that goes with unlimited authority and a complete absence of review. The decisions made as a result of the exercise of discretion and independent judgment may consist of recommendations for action rather than the actual taking of action. The fact that an employee’s decision may be subject to review and that upon occasion the decisions are revised or reversed after review does not mean that the employee is not exercising discretion and independent judgment.
(d) An organization’s workload may make it necessary to employ a number of employees to perform the same or similar work. The fact that many employees perform identical work or work of the same relative importance does not mean that the work of each such employee does not involve the exercise of discretion and independent judgment with respect to matters of significance.
(e) The exercise of discretion and independent judgment must be more than the use of skill in applying well-established techniques, procedures, or specific standards described in manuals or other sources.
The steady-state work performed by the claimant during the claim period does not meet the administrative exemption criteria detailed in 5 CFR 551.206.
Unlike the administrative exemption, while the claimant performs office or non-manual work, both his Steady-state duties and those performed while deployed are not an extension of the agency’s management process or general business operations and do not help with or affect the management of significant matters within his agency. Instead, the claimant’s work is limited to the provision of computer and telecommunication technical support to MBD.
Unlike the administrative exemption, the claimant’s Steady-state work does not require he exercise discretion and independent judgment with respect to matters of significance as addressed in the ten factors of the regulation previously listed. For example, he lacks the authority to formulate, affect, interpret, or implement management policies or operating practices at the MBD level; commit the agency with regard to matters with significant financial impact or to waive or deviate from established MBD, DECD, or FEMA policies, procedures, and well-established protocol without prior approval from his supervisor or higher-level management within MBD, DECD, or FEMA. He has no authority to negotiate and bind his agency concerning significant matters; does not consult with and provide expert advice to FEMA management; and is not involved in planning long or short-term organizational objectives for FEMA. He also lacks the authority to investigate and resolve matters of significance on behalf of management is not authorized to represent FEMA in handling complaints, arbitration of disputes, or resolution of grievances against the organization. These responsibilities are vested with his supervisor or higher-level management within MBD, DECD, or FEMA. Therefore, the claimant’s Steady-state work does not meet the administrative exemption criteria and by extension any IT related duties performed while deployed for emergencies.
III Effect of performing different work or duties for a temporary period of time on FLSA exemption status.
As described in 5 CFR 551.211(f)(1), the criteria for the exemption of work performed by employees under emergency situations, in relevant part, is as follows:
(f) Notwithstanding any other provision of this section, and regardless of an employee’s grade or equivalent level, the agency may determine that an emergency situation exists that directly threatens human life or safety, serious damage to property, or serious disruption to the operations of an activity, and there is no recourse other than to assign qualified employees to temporarily perform work or duties in connection with the emergency. In such a designated emergency:
(1) A nonexempt employee remains nonexempt whether the employee performs nonexempt work or exempt work during the emergency.
We have determined that the Steady-state (non-emergent) work performed by the claimant during the claim period is nonexempt, i.e., covered under the overtime pay provisions of the FLSA. Therefore, in accordance with 5 CFR 551.211(f)(1), all work performed by the claimant during the claim period is nonexempt and covered by the provisions of the FLSA.
Decision on FLSA Coverage
The claimant’s work does not meet the computer employees, administrative, executive, professional or learned professional exemption criteria. Therefore, all work performed by the claimant during the claim period is nonexempt and he is entitled to compensation for all overtime hours worked at the FLSA overtime rate during the claim period. The agency must follow the compliance requirements on page ii of this decision. The agency must reconstruct the claimant’s pay records for the period of the claim and compute back pay for FLSA overtime pay owed and any interest on the back pay, as required under 5 CFR 550.805 and 550.806, respectively. While our decision specifically establishes the claim period for purposes of preserving the claim, by implication it also applies to the period going forward if the major duties and responsibilities evaluated in the decision essentially remain the same. If the claimant believes the agency incorrectly computed the amount owed, he may file a new FLSA claim with this office.