Washington DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
EOSH Support Operations Group
Technical Services
Technical Operations
Federal Aviation Administration
Memphis, Tennessee
Damon B. Ford
Classification Appeals and FLSA Claims Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
12/20/2023
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 the agency has incorrectly computed the amount owed to 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 4, 2022, OPM received a FLSA claim from the designated representative on behalf of the claimant, who is currently employed as a Safety and Occupational Health Specialist, FV-0018-I, with EOSH Support Center A, EOSH Support Operations Group, Technical Services, Technical Operations, Federal Aviation Administration (FAA), in Memphis, Tennessee. The claimant requests a review of his position’s FLSA designation. The agency determined the work he performs is exempt (i.e., not covered) from the overtime pay provisions of the FLSA, but he believes his FLSA status should instead be designated as nonexempt (i.e., covered) under the FLSA. In reaching our FLSA decision, we carefully considered all information furnished by the claimant’s representative and his agency, including the agency administrative report. We have accepted and decided this claim under section 4(f) of the FLSA of 1938, as amended, codified at section 204(f) of title 29, United States Code.
Background and General Issues
The designated representative explains in the claim request to OPM:
Beginning in March of 2020, with the advent of the [Coronavirus Disease 2019 (COVID-19)] pandemic, FAA employees serving as Safety and Environmental Compliance Managers (“SECM” is utilized as an umbrella term for several occupational health job series in the FAA including series 0018, 0028 and 0069 employees) began working increased overtime.
When an employee assigned to a FAA Air Traffic Organization (ATO) facility tested positive for COVID-19 at that time, the Occupational Safety and Health Administration (OSHA) instructed that the space should be closed off until it is cleaned and disinfected. As a result, SECM’s like the claimant were tasked with observing the cleaners contracted with the job of cleaning and disinfecting the space, e.g., ensuring contractors used approved disinfectants, donned appropriate personal protective equipment (PPE) to prevent exposure to hazardous chemicals, and adhered to all instructions for environmental cleaning and disinfection. As a result of performing such work, the claimant’s representative requests that his position be designated as nonexempt and he be compensated for approximately 50 hours of FLSA overtime between September 2021 “(when he became a federal employee) and February 2022.” However, a Standard Form 50 in the record shows that the claimant was appointed to his SECM position on June 20, 2021, not September 2021 as identified in the FLSA claim.
Position Information
The claimant’s position is assigned to Support Center A (hereafter referred to as “Center”), which serves as a support organization to ATO districts by providing services in program areas including, but not limited to, hazard communication, fall protection and rescue, drinking water sampling, hearing conservation, indoor air quality, respiratory protection, hazardous materials and waste, EOSH training, confined space entry, electrical safety, PPE, and lead, asbestos, radiation, and fall hazard surveys. The Center is staffed with a team manager, team coordinator, safety and health inspectors, contractors, and SECMs like the claimant who provide EOSH support in the program areas to ATO workplaces and other sites within the assigned district. As SECM for his assigned district (i.e., to include the Memphis, Tennessee area), the claimant has overall authority and responsibility for the district’s compliance with Federal, State, and local EOSH laws, regulations, and standards. Such work requires knowledge of environmental, safety, and other relevant standards from OSHA, National Fire Protection Association, American National Standards Institute, Executive Orders, etc.
The claimant follows established guidelines, methods, and processes to monitor and evaluate EOSH programs and develop recommendations for compliance improvement at ATO workplaces and sites within his district. He performs safety inspections and surveys to observe a variety of work environments (e.g., radar rooms) and conditions (e.g., noise levels), and to gather information, data, and a variety of samples to identify potential hazards and violations of current EOSH laws, regulations, and requirements. In addition to identifying and evaluating potential EOSH hazards, the claimant recommends cost effective controls, solutions, and abatement measures to achieve a safe work environment for ATO employees while assisting facility management with meeting OSHA, FAA, and other Federal, State, and local EOSH laws, regulations, and standards. He incorporates findings and data into standard reports consisting of information obtained through routine observation, operation of standard testing and survey equipment, and basic interviewing skills. In addition, his construction support work includes reviewing project plans and specifications for facilities and equipment to ensure compliance with established EOSH standards and requirements. The claimant also performs investigations and recordkeeping involving employee accidents, mishaps, injuries, illnesses, and other incidents.
When necessary, the claimant communicates with program managers, specialists, and analysts assigned to Support Center C, who are responsible for providing programmatic support to Center staff and ATO facility management by writing standard operating procedures, policies, and guidance for the various program areas; establishing and coordinating the training programs; and overseeing the EOSH-related operational budget.
The claimant’s Job Analysis Tool (JAT), number AHFS60I, and other material of record furnish more information about his duties and responsibilities and how they are performed. In reaching our FLSA decision, we carefully considered all information provided by the claimant, his representative, and the agency including his official JAT which we have incorporated by reference into this decision. In addition, to gain more information about his work, we conducted separate telephone interviews with the claimant and his first-level supervisor, i.e., the team manager.
Evaluation
Period of the claim
Section 551.702(b) of 5 CFR provides that 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). A claimant or a claimant’s designated representative must submit a written claim to either the 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 that determines the period of possible entitlement to back pay (5 CFR 551.702(c)). The claimant did not file a claim with his agency before filing with OPM and makes no assertion of willful violation. The record shows the claim was preserved on April 4, 2022, when it was received by OPM, and therefore it is subject to a two-year statute of limitations commencing on April 4, 2020. However, because the claimant was appointed a Federal employee effective June 20, 2021, his possible entitlement to FLSA overtime pay commences from that date to April 4, 2022.
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) an employee who clearly meets the criteria for exemption must be designated FLSA exempt; the employee will be designated FLSA nonexempt if there is a reasonable doubt as to whether the employee meets the criteria for exemption, and (e) while established position descriptions and titles may assist 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 exemption categories applied to Federal employees: executive (5 CFR 551.205), administrative (5 CFR 551.206), and professional (including learned professional) (5 CFR 551.207 and 208). The agency determined that the claimant’s duties do not meet the executive or professional criteria and the claimant does not contest that detemination, and we concur. However, the agency determined that the claimant’s duties are exempt from the overtime pay provisions of the FLSA based on the administrative exemption criteria, but the claimant disagrees. Therefore, our analysis below is limited to the administrative exemption criteria in 5 CFR 551.206.
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 operations of a particular segment of the organization;
(4) Has 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 that 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 claimant’s work 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, his work is not directly related to the management of the EOSH, or the general business operations of the ATOs. Rather, he provides a technical operational service in monitoring and participating in specific safety and occupational health surveys and inspections by observing a variety of work environments and conditions and developing reports and recommendations based on findings to mitigate potential hazards to ensure compliance with OSHA, FAA, and other Federal, state, and local EOSH regulations and standards. In addition, as discussed below he does not exercise discretion and independent judgment with respect to matters of significance as described in nine of the ten factors listed in 5 CFR 551.206(b).
(1) The claimant does not have authority to formulate, affect, interpret, or implement management policies or operating practices. Work that significantly affects the formulation or execution of policies or practices generally refers to employees who either actually make policy or develop proposals acted on by others. The claimant neither makes nor implements policies or practices. Instead, he applies established policies and practices to perform technical EOSH tasks, activities, and projects, ensuring compliance with standards and regulations at ATO facilities located within his assigned district. Subject-matter experts assigned to Support Center C and FAA Headquarters are delegated with the express authority to formulate, to affect, to interpret, and/or to ensure proper implementation of the Center’s management policies and its operating practices.
(2) The claimant carries out major inspection assignments within his district. As the SECM for his assigned district, he is responsible for a variety of EOSH projects and assignments, reporting regularly on performance, risks identified, and milestones for his district’s facilities.
(3) The claimant does not perform work affecting the Center’s operations to a substantial degree. His work is limited to ensuring ATO facilities and sites within his assigned district comply with Federal, State, and local EOSH regulations and standards, performing inspections, surveys, and investigations at facilities. In doing so he develops recommendations to abate or eliminate identified hazards. In addition, the claimant reviews project plans and specifications for facilities and equipment to ensure compliance with EOSH regulations and standards. However, these specific aspects of his work fall short of affecting the Center’s overall operations to a substantial degree.
(4) The claimant has no authority to commit the Center on matters having significant financial impact. For example, all purchase requests or actions with any financial impact must be forwarded to his supervisor for review and approval.
(5) The claimant has no authority to waive or deviate from established policies and procedures without prior approval. As SECM, he analyzes jobs, processes, products, and other systems to identify risks to employees, recommending modifications when necessary to ATO workplaces and other sites to mitigate or eliminate hazards. He follows available guidance and standard operating procedures when conducting inspections, surveys, and investigations. Although his work involves obtaining cooperation from ATO facility management, the problems and issues he regularly deals with do not require waiving or deviating from established policies and procedures without prior approval.
(6) The claimant has no authority to negotiate and bind the Center on significant matters. He refers situations requiring additional money, people, and resources to his supervisor and other management officials for review and action. The claimant’s position is not vested with authority to negotiate and bind the organization on significant matters.
(7) The claimant does not provide consultation or expert advice to management on matters relating to the management or general business operations of the Center. In performing EOSH assignments and projects, he advises ATO facility management, his supervisor, and others on issues that arise and recommended courses of action. However, the focus and scope of the claimant’s work is on providing technical advice, assistance, and instruction to ensure compliance with established EOSH standards and regulations for his assigned district. This situation falls short of element (7), where the employee serves as an expert consultant advising management on broad matters relating to overall management or the general business operations of the organization.
(8) The claimant is not involved in the planning of long- or short-term organizational objectives. Unlike factor (8), he is not involved in the planning of the Center’s objectives, i.e., he does not participate in the strategic planning efforts that will serve as a blueprint or guide to establish, achieve, or otherwise impact either the long- or short-term objectives or goals of his Center. Instead, his planning is limited to his district’s EOSH inspections, investigations, surveys, and other projects.
(9) The claimant does not investigate and resolve matters of significance on behalf of management. The claimant develops and recommends approaches to address EOSH-related problems and issues. However, it is the ATO facility management’s responsibility to ultimately resolve EOSH problems and issues by adopting required actions or acting on recommendations at the facility.
(10) The claimant does not represent the organization in handling complaints, arbitrating disputes, or resolving grievances. For example, if a complaint is filed with OSHA regarding an alleged violation or hazard directed at a facility within his district, the claimant and his supervisor are generally notified. While the claimant is responsible for assisting ATO facility management by answering technical questions and providing any prior facility reports and documents if relevant, program specialists and/or managers at Support Center C and FAA Headquarter’s Designated Agency Safety and Health Official office serve as the agency’s liaison and representative on matters of such significance.
The regulation states the phrase discretion and independent judgment must be considered in light of all facts involved. Because the claimant performs only one factor demonstrating discretion and independent judgment, we must conclude that he does not exercise discretion and independent judgment on matters of significance to the degree required by 5 CFR 551.206.
Based on the preceding analysis, the claimant’s work does not meet the administrative exemption criteria.
Decision
The claimant’s work does not meet the executive, administrative, or professional (including learned professional) exemption criteria. Therefore, his position is designated as FLSA nonexempt. The claimant is entitled to compensation at the FLSA overtime rate for all overtime hours worked during the claim period. 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 this decision essentially remain the same. Since the claim was received by OPM on April 4, 2022, the claimant would normally be eligible to receive back pay commencing on April 4, 2020. However, because he did not become a Federal employee until June 20, 2021, he is eligible for FLSA overtime back pay from that date to April 4, 2022. 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 owed, including the difference between the FLSA overtime rate and any overtime pay already paid under the agency’s core compensation pay system, and any interest on the back pay as required under 5 CFR 550.805 and 550.806. If the claimant believes the agency incorrectly computed the amount, he may file a new FLSA claim with this office.