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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Damon B. Ford
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


09/26/2023

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Date

Finality of Decision

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 the 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. The servicing human resources office must submit a compliance report containing a Standard Form 50 showing the personnel action taken. 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). The report must be submitted to OPM, Merit System Accountability and Compliance, Agency Compliance and Evaluation, Washington, DC, office.

Introduction

On April 5, 2022, OPM’s Merit System Accountability and Compliance received an FLSA claim from the claimant’s representatives. The claimant is a Safety and Occupational Health Specialist, FV-0018-H, assigned to the Environmental Occupational Safety and Health (EOSH) Support Center, EOSH Support Operations Group (ESOG), Technical Services Organization, Technical Operations, Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT), in Melville, New York, with duty station in Nashua, New Hampshire. He believes his FLSA exemption status should be nonexempt (i.e., covered) by the overtime pay provisions of the FLSA, and thus due FLSA overtime pay for overtime worked during the period of August 2021 to February 2022. We received the agency administrative report (AAR) on June 17, 2022. We have accepted and decided this claim under section 4(f) of the FLSA as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).

General Issues

The claimant disagrees with the exemption status determination made by the agency. He believes the duties associated with his position do not justify the position being exempt from coverage of the FLSA. The claimant was appointed to his position and assigned to Position Document (PD)/Job Analysis Tool (JAT) number AHFS60H, effective August 15, 2021. He states that he worked approximately 20 hours of overtime from the time he was hired in August 2021 to February 2022, and requests to be compensated for the overtime worked at the FLSA overtime pay rate.[1] Included in the record, is an FAA FLSA Exemption Worksheet, dated July 28, 2020, provided by the agency showing it designated the claimant’s position as FLSA exempt (i.e., not covered) by the overtime pay provisions of the FLSA based on meeting the administrative exemption criteria in 5 CFR 551.206. In adjudicating this claim, our only concern is to make our own independent decision about the exemption status of the claimant’s position. We must make that decision by comparing the facts in the claim against the governing FLSA regulations and guidelines.

Position Information

Our review disclosed that the claimant’s official PD/JAT of record is not completely accurate because it describes duties he does not perform. For instance, the PD/JAT states the incumbent of the position “develops” and “assists with implementing abatement plans.” However, abatement plans are developed and implemented by the organization of the facility inspected with assistance as necessary from the Safety and Environmental Compliance Manager (SECM) assigned to the district of the facility. The PD/JAT also states that the incumbent of the position is responsible for helping managers or program managers to “plan and use assigned resources to accomplish projects/programs/activities.” However, the claimant’s responsibility with respect to working with managers is limited to providing facility managers with inspection findings of unsafe working conditions in violation of applicable requirements. The PD also states the incumbent is responsible to “assist in providing scopes of work for contract resources required to implement specific aspects of EOSH program operations.” However, the claimant does not perform this function or any work involving scopes of work for contract resources.

Furthermore, the claimant’s work activities do not “typically impact directly on the objectives of one or more organizational units, major subdivisions, and/or LOB’s/SA’s [Lines of Business/Service Area] and may affect the objectives of the FAA,” as stated in the PD/JAT. The claimant conducts inspections of facilities within the Eastern Service Area (ESA) of his organization which primarily fall under the Air Traffic Organization (ATO) LOB, however, the claimant’s inspection activities do not directly impact on the objectives of the LOB of the facilities, but rather on the accomplishment of the work carried out by EOSH Support Center and its program objectives. Also, the claimant’s contacts do not consist of those among “major subdivisions and LOB’s/SA’s customers, and other external parties to share information about the FAA and explain the application of policies and procedures.” Rather, his regular and recurring contacts primarily consist of ATO employees and managers performing work in facilities within the ESA and its districts, and the purpose of his contacts is to provide inspection findings and information on the degree of compliance with EOSH program policies and objectives.

ESOG’s mission is to achieve the safest occupational health workplace for all ATO employees, and to strive to enhance and improve environmental compliance at all facilities through innovation, collaboration, communication, employee empowerment, workforce development and incident response. As a support organization, through its EOSH Support Centers it provides support to facilities in specified districts within its service areas to maintain compliance with EOSH program rules and regulations. EOSH programs include but are not limited to the Indoor Air Quality, Confined Space Entry, Fall Protection, Electrical Safety, Hazardous Energy Control (Lockout/Tagout), and Personnel Protective Equipment (PPE), Fire and Life Safety (emergency procedures, fire extinguishers, egress), and Hazardous Material programs.

The claimant’s position is assigned to the EOSH Support Center (Team A). The purpose of his position is to independently conduct safety inspections of FAA technical facilities in specified ESA districts on an annual basis (or more for facilities with increased risks) to ensure the facility is in compliance with EOSH program rules and regulations and have a safe and secure work environment in place for all facility employees. Prior to the facility inspection, the claimant provides an in-brief to facility managers on all aspects of the inspection. Using the Workplace Inspection Tool (WIT), containing programmatic checklists/templates, he conducts inspections to identify unsafe working conditions or practices in violation of applicable requirements. Upon completion of the inspection, he conducts a post brief which consists of reviewing all findings noted during the inspection. The post brief also indicates the end of the inspection. Once back at his duty station, using the WIT, he records inspection findings with risk classification and controlling policies and standards e.g., EOSH policies, FAA orders, OSHA standards, Consensus standards, and submits the results of his inspection to the facility manager and team manager. Hazards identified during the inspection that cannot be abated/closed within the initial 25 days post-inspection, require an abatement plan. The organization of the inspected facility develops and puts in place abatement plans in coordination with the designated SECM assigned to the district. In his capacity as an inspector, the claimant’s position is limited to conducting inspections and submitting report of findings to management. He is not responsible for following-up on the completion of abatement plans or tracking other unresolved deficiencies. This responsibility rests with other positions in the organization.

The claimant exercises independence in planning and executing his work, and researches issues or seeks guidance from his supervisor, SECMs, or headquarter level program managers to address unusual findings. The claimant’s supervisor does not review the technical methods or approaches used by the claimant to perform his inspections. The claimant’s completed work is evaluated for conformity of EOSH program policies and requirements. As requested, the claimant may provide guidance to less experienced specialists.

In reaching our FLSA decision, we have carefully reviewed all information provided by the claimant and the agency, including information obtained from separate telephone interviews with the claimant and his supervisor, Supervisory Aviation Technical Systems Specialist, FV-2186-J, with working title of ESA ESOG Team A Manager.

Evaluation

Period of the claim

As provided for in 5 CFR 551.702(b), all FLSA pay claims filed on or after June 30, 1994, are subject to a two-year statute of limitations (three years for willful violation). The claimant does not allege his agency committed a willful violation, thus we will not address the issue. A claimant or a claimant’s designated representative must submit a written claim to either agency employing the claimant during the claim period 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 did not file a claim with his employing agency before filing with OPM. Accordingly, because the claim was received by OPM on April 5, 2022, it is subject to a two-year statute of limitations commencing on April 5, 2020. Therefore, the entire period of the claim (August 15, 2021 to February 2022) is covered.

Applicability of the FLSA

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 unless the employing agency correctly determines that the employee clearly meets the requirements of one or more of the exemptions; (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) If there is a reasonable doubt as to whether an employee meets the criteria for exemption, the employee will be designated FLSA nonexempt; (e) While established position descriptions and titles may assists in making initial FLSA exemption determinations, the designation of a position’s FLSA status ultimately rests on the duties actually performed by the employee. There are three main exemption categories applied to Federal employees: executive, administrative and professional.

To be exempt from the overtime pay provisions of the FLSA, the employee must meet the executive, administrative, or professional exemption criteria in 5 CFR sections 551.205 through 551.207. The agency determined that the claimant’s duties do not meet the executive or professional exemption criteria, and the claimant does not contest that determination, and we agree. The agency determined that the claimant’s duties are exempt from the overtime pay provisions of the FLSA based on the administrative exemption criteria, and the claimant disagrees. Therefore, our analysis is limited to the administrative exemption criteria in 5 CFR 551.206.

Administrative exemption criteria

The current regulations in 5 CFR 551.206 establish 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 operation of the organization;

(3) Performs work that affects the organization’s operations to a substantial degree, even if  the employee’s assignments are related to operation of a particular segment of the organization

(4) Has the authority to commit the employer in matters that have significant financial impact;

(5) Has authority to waive or deviate from established policies and procedures without prior approval;

(6) Has authority to negotiate and bind the organization on significant matters;

(7) Provides consultation or expert advice to management;

(8) Is involved in planning long-or short-term organizational objectives;

(9) Investigates and resolves matters of significance on behalf of management; 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 work performed by the claimant does not meet the administrative exemption criteria in 5 CFR 551.206. Although, the claimant’s primary duty involves the performance of office or non-manual work, it is not directly related to the management and business operations of the agency. Rather, as a facility inspector, the claimant’s work is limited to conducting inspections to ensure employee safety and compliance with established EOSH program policies. In addition, he does not exercise discretion and independent judgment with respect to matters of significance as described in the ten factors listed in 5 CFR 551.206(b). For example, he has no authority to formulate, affect, interpret, or implement management policies or operating practices at his level. Work that significantly affects the formulation or execution of policies or practices generally refers to employees who actually make policy, make policy decisions, or develop proposals that are acted on by others. This authority is outside the scope of the claimant’s position. Instead, his inspection activities require that he carry out defined inspection work operations by applying well established EOSH program policies, precedents, and procedures.

The claimant does not carry out major assignments in conducting the operations of the organization. The claimant’s work focuses on one element (i.e., inspections) within an organization that provides other types of technical operations support to its technical facilities. He carries out very specific, short-term inspection assignments, rather than major ones in conducting the operations of his organization, thus his work does not affect the organization’s operations to a substantial degree. The claimant does not have the authority to commit the employer in matters that have significant financial impact. He is not presented with situations requiring approval, for example, for additional money, people, or other resources to conduct his inspection work. This authority rests with agency level management officials.

Furthermore, the situations the claimant regularly deals with do not require waiving or deviating from established policies and procedures without prior approval. Even if he identifies a high-risk level hazard (e.g., exposing employees to imminent danger) he follows emergency protocols to stop the work and get the situation down to a lower level of risk before operations can continue. Furthermore, the claimant does not perform any work requiring him to have authority to negotiate and bind his organization on significant matters or make significant decisions.

Although the claimant has specialized knowledge and experience in the field of occupational health and safety, he does not provide consultation and expert advice to FAA management relating to the overall management or the general business operations of his unit, such as would be provided by certain management consultant or program analyst positions. Rather, he provides technical advice and/or recommendations to facility managers as it relates to his inspection findings and compliance with EOSH program rules and regulations.

The claimant is not involved in the planning of long or short-term organizational objectives of his organization. For example, he is not involved in the strategic planning efforts that may serve to establish, achieve, or otherwise impact either the long-or short-term objectives or goals of his organization. He is also not responsible for investigating and resolving matters of significance on behalf of management or representing the organization in handling complaints, arbitrating disputes, or resolving grievances. These matters are within the authority and responsibility of higher-level management positions.

While the claimant performs his work independently, free of immediate supervision and direction, in contrast to the application of discretion and independent judgment, he uses knowledge and skill in applying well-established rules, regulations, standards, and written precedents which are applicable to the work assigned. Therefore, the decisions he makes are not significant within the meaning of the regulation in that they affect the procedural details of his inspection work and primarily focus on deciding whether a situation conforms to clearly applicable criteria.

Based on the preceding analysis, the work performed by the claimant does not meet the administrative exemption criteria in 5 CFR 551.206.

Decision on FLSA Coverage

The claimant’s work does not meet the executive, professional, or administrative exemption criteria. Therefore, his position is FLSA nonexempt and covered by the overtime pay provisions of the FLSA. He is entitled to compensation for all overtime hours worked at the FLSA overtime pay rate. The claim was received by OPM on April 5, 2022, and the claimant can receive back pay for two years prior to that date (i.e., April 5, 2020). The agency must follow the compliance requirements on page ii of this decision. While our decision specifically establishes the claim period for purposes of preserving the claim, by extension it also applies to the period going forward if the major duties and responsibilities evaluated in the decision essentially remain the same.

The agency provided Time and Attendance records (i.e., copies of timecards from CASTLE) showing the claimant worked overtime hours during certain pay periods. The agency must reconstruct the claimant’s pay records for the period of the claim and compute back pay for the difference between the FLSA overtime pay owed and any overtime pay already paid under the agency’s core compensation pay system, and interest on the back pay, as required under 5 CFR 550.805 and 550.806, respectively. If the claimant believes the agency incorrectly computed the amount, he may file a new FLSA claim with this office.

[1] The claimant performed regular work duties during the overtime hours worked and not work resulting from the advent of the COVID-19 pandemic as depicted in his request to OPM.

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