Office of the General Counsel

Date: June 5, 2000
Matter of: [Claimant]
File Number: 00-0009

OPM Contact: Melissa Drummond

The claimant, a former employee of the [agency], served in a Dietician position, GS-0630-9, from March 31, 1997 through July 17, 1997. She initially filed a claim with the agency, which denied her request. She contends that her position should have been designated as non-exempt from the Fair Labor Standards Act (FLSA), rather than the agencys FLSA designation of exempt. Due to this "incorrect" designation, she asserts that she is, therefore, entitled to compensation for overtime hours worked. For the reasons discussed herein, the claim is denied.

The claimant states that she believes that her claim for overtime compensation was initially denied by her agency due, in part, to an interpretation of the FLSA that, as a professional, she was exempt from overtime provisions. The claimant then states the following:

"I have learned that the courts have ruled that if a company utilizes compensatory plans that offer unpaid leave to these professionals, such as allowing workers time off without pay, the workers automatically become hourly employees entitled to overtime."

This ruling only applies to individuals working in the private sector. This does not apply to those individuals working for Federal Government agencies, such as the [agency]. Instead, FLSA determinations for Federal employees are governed by Part 551 of Title 5 of the Code of Federal Regulations (CFR). To be exempt from coverage under FLSA, it must be established that the position in question meets one or more of the statutory exemption criteria, i.e. executive, administrative, or professional, found in Subpart B of CFR 551. We have determined that the position is exempt from coverage under FLSA because it meets the professional exemption criteria.

Under the professional exemption criteria, an employees primary duty consists of work that requires knowledge in a field of science customarily and characteristically acquired through education or training that meets the requirements for a bachelors or higher degree, with major study in or pertinent to the specialized field. The employees work is predominantly intellectual and varied in nature, requiring analytical and evaluative thought processes for satisfactory performance. In addition, the employee frequently exercises discretion and independent judgment, under only general supervision, in performing the normal day-to-day work.

We carefully considered the information furnished by the claimant and the agency including the position description of record and the claimants information concerning her duties and responsibilities. Both stated that the claimant possessed a professional knowledge in the specialized field of nutrition acquired through both a bachelors and masters degree. Her primary duties consisted of assessing the nutritional status of inpatients and conducting nutritional assessments for outpatients. She initiated the need for nutritional intervention, devised nutritional plans, and developed new instructional material pertinent to a patients nutritional needs. Her recommendations for laboratory tests and nutritionally related consults were made from broad guidelines established by the American Dietetic Association among others. With "limited orientation and no supervision," the claimant functioned as an nutrition expert on the hospitals multi-disciplinary teams. Based on this information, we concur with the agency reports and the record, which reflects that the claimants position was exempt from the FLSA during the March 31, 1997 through July 17, 1997 period.

During this time, according to the agency, the claimant worked overtime hours on

May 12, 1997 and June 18, 1997 and requested compensatory time off for these two dates. CFR 550.114(a) states that:

At the request of an employee, the head of an agency (or designee) may grant compensatory time off from an employees tour of duty instead of payment under 550.113 for an equal amount of irregular or occasional overtime work.

Both the claimant and the agency agree that the claimant received compensatory time off for these two dates. We, therefore, conclude that she has been appropriately compensated for the overtime hours worked on these two dates. However, the claimant further contends that she worked overtime hours on 17 additional days and should be compensated for that time as well.

CFR 178.105 specifies that claims are settled on the basis of the written record, and the claimant has the burden of establishing the timeliness of his or her claim as well as the burden of proving his or her right to payment. William K. Knotts, B-248232 (September 22, 1992); Wade B. Bumgardner, B-184795 (August 5, 1976). The claimant submitted a list of the 17 additional dates; however, there is no evidence, other than the claimants assertions, to substantiate that overtime hours were worked on those days. The claimants evidence does not include a copy of computer records or printouts submitted to the supervisor or personnel office, requesting prior approval for overtime work or reflecting that these additional overtime hours were actually worked.

Agency instructions state that procedures for requesting overtime or compensatory time off must be officially ordered or approved in advance. The agency reports that its search of the claimants time and attendance records did not produce any official approvals of overtime or overtime requests from the claimant. Claims are settled on the written record and the claimant has the burden of proving that he or she actually worked overtime that was officially ordered or approved, or actively induced, by an agency official with authority to order or approve overtime work. Matter of Jim L. Hudson, supra.

Without a copy of the actual request and/or approval for overtime hours worked, we cannot determine whether the request, in fact, is a valid claim. Based on our review of the record, we conclude that the claimant has not established that the additional 17 days, that the claimant contends that she worked overtime hours, were ordered or approved consistent with the agencys regulations for doing so. Accordingly, the claim is denied.

This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the claimants right to bring an action in an appropriate United States Court.