Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
overtime pay.
Damon B. Ford
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
12/19/2023
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 review whether the claimant has worked FLSA overtime in accordance with instructions in this decision, and if the claimant is determined to be entitled to back pay, the agency must pay the claimant the amount owed her plus interest as provided in 5 CFR 550.806. If the claimant believes the agency has incorrectly computed the amount owed her, she 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 taken 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.
On May 6, 2022, OPM received an FLSA claim submitted on behalf of Sandra A. Tanco by her designated representatives seeking the difference between the overtime (OT) pay the claimant received and the FLSA OT rate she believes is owed to her for the OT hours she worked between May 2020, and May 2021. During part of the claim period, the claimant occupied a Safety and Occupational Health Specialist, FG-0018-14, position (herein referred to as FG-0018-14, SOH Specialist) and was assigned to the Program Implementation Manager Environmental Occupational Safety and Health (EOSH) Team, Planning Requirements Group, Western Service Center, Mission Support Services Division, Federal Aviation Administration (FAA), U.S. Department of Transportation (DoT), in Des Moines, Washington. During another part of the claim period, she occupied a Safety and Occupational Health Specialist, FV-0018-J, (herein referred to as FV-0018-J, SOH Specialist) and was assigned to the EOSH Program Support Center, EOSH Support Operations Group (ESOG), Technical Services Organization, Technical Operations Division, FAA, DoT, in Des Moines, Washington.
During the official claim period between May 6, 2020, and May 6, 2022, the claimant served in several positions. She occupied an FG-0018-14, SOH Specialist position and her assignment Standard Form (SF) 50 included position number ANMV3CY. However, the agency no longer retained the position document (PD)/job analysis tool (JAT) which described the duties performed, so it was not provided to OPM. The claimant occupied an FV-0018-J, SOH Specialist position under standardized PD/JAT number AHFS60J, which was provided by the agency. She was also detailed to an FV-0018-J, SOH Specialist position and her assignment SF-50 included position number 00NO0PD. However, the agency no longer retained the PD/JAT which described the duties performed, so it was not provided to OPM. After an examination of 5 CFR 551.705(c)(2) –FLSA claim filed with OPM, and 5 CFR 551.702 – Time limits, respectively, our program management officials determined it was appropriate to limit our FLSA exemption review to those positions assigned to the claimant during the representatives’ specified claim period during which OT hours were worked. The claimant’s representatives stated OT hours were not worked when she was detailed to the FV-0018-J, SOH Specialist position and formally amended the claim period to be from May 6, 2020, through May 8, 2021. Therefore, we will determine the proper FLSA exemption status for the remaining two positions (i.e., FG-0018-14, SOH Specialist and FV-0018-J, SOH Specialist) in this decision.
The claimant disagrees with the exemption status determinations made by the agency. She believes the duties associated with both positions do not justify them being designated exempt (i.e., not covered) from coverage of the FLSA. The claimant’s representatives stated she worked approximately 50 hours of OT while she occupied the two positions between May 2020, and May 2021, and requested the difference between the OT pay the claimant received and the FLSA OT pay rate. However, the claimant verified she received a combination of OT pay and compensatory (comp) time off hours, and all the comp time off hours earned have been used. She stated she is not sure of the number of hours for which she received OT pay. In adjudicating this claim, our concern is to make an independent decision about the FLSA exemption status of the claimant’s positions. We must make that decision solely by comparing the claimant’s duties and responsibilities to FLSA regulations and guidelines.
As discussed in 5 CFR 551.202(e), while established position descriptions 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.
FG-0018-14, SOH Specialist position
As noted above, the agency did not provide a PD/JAT for the FG-0018-14, SOH Specialist position. Therefore, we will limit our discussion to a description of the duties performed by the claimant while she occupied the position during part of the claim period (i.e., between May 6, 2020, and October 10, 2020).
The claimant provided support functions to the Service Support Center (SSC) managers, Safety and Environmental Compliance Managers (SECM), and FAA Headquarters (HQ) Program Office staff as needed so the necessary equipment projects were approved and implemented in the western region (i.e., Colorado, Idaho, Montana, Nevada, Utah, Wyoming, and New Mexico), Alaska, Hawaii, and the U.S. territories (e.g., American Samoa, the Northern Mariana Islands, Guam, Puerto Rico, and the U.S. Virgin Islands)).
The claimant provided life cycle support for fuel storage tanks as a liaison between the SSC managers in the western region and the FAA HQ Program Office section that managed fuel storage tank repairs and replacements. The SSCs ensured the equipment remained functional at the FAA-run airports in their designated geographic area. Annually the HQ Program Office personnel notified the claimant’s supervisor, who notified the claimant as to when to provide the HQ Program Office a listing of the SSCs with fuel storage tanks that needed to be repaired or replaced during the fiscal year. She accessed the Facility Service and Equipment Profile (FSEP) database and retrieved a listing of the fuel storage tanks, sorted by age. The claimant reviewed the information provided in the database (e.g., information about the SSC where the tank was located, date installed, and preventative maintenance performed). She discussed the condition of the fuel storage tanks with the appropriate SSC managers and forwarded the information for those that needed to be repaired or replaced to the HQ Program Office for consideration. If fuel storage tank projects were approved in the western region, the claimant contacted the appropriate SSC managers. She obtained periods of time during which the projects could be completed and any other needed project details (e.g., tank size and whether above or underground, tank site access issues, and weather-related considerations). The information was then forwarded to the HQ Program Office and Engineering Services personnel for project scheduling consideration. The claimant forwarded the modified schedule to the appropriate SSC managers for project date approval. If unforeseen issues caused a project to be delayed, she worked with the SSC manager and HQ Program Office staff, so it was re-scheduled.
Sometimes the claimant received emails or telephone calls from SECMs who provided support to SSC managers, with project-related safety questions not previously dealt with or covered in FAA guidelines. For instance, SSC technicians needed to use a chainsaw, but the FAA has no chainsaw use policy. She provided guidance to the SECM on proper chainsaw safety requirements from the Occupational Safety and Health Administration (OSHA). However, if no clear guidance was found with regards to the question, the claimant discussed the matter with the applicable HQ Program Office section before she provided the safety details to the SECM. The information would then be provided to the SSC manager, who determined how to resolve the issue.
The claimant participated in monthly conference calls with her counterparts who performed the same work in the eastern and central regions and HQ Program Office staff. Topics discussed included updated fuel storage tank project funding, descriptions of upcoming projects, and policy interpretation.
After the HQ Program Office updated EOSH policies, the drafts were forwarded to the claimant, her counterparts, SECMs, and SSC managers for comments (e.g., explanations of why the SSCs could be adversely affected by the changes or different ways to implement the changes). The comments were reviewed by HQ staff, who decided if any of them would be incorporated into the final policies.
FV-0018-J, SOH Specialist position
As noted above, the agency provided standardized PD/JAT number AHFS60J for the FV-0018-J, SOH Specialist position. Our review disclosed the PD/JAT duties were not completely accurate in that it described numerous duties performed by other FAA organizations or were higher-level management duties. For instance, the claimant did not research complex mishap data to develop and manage programs to reduce the frequency, severity, and cost of accidents and occupational illnesses. She did not recommend and develop occupational safety and health (OSH) design changes to engineers and managers to ensure compliance with FAA, Federal, and State regulations. The claimant did not oversee multidisciplinary teams that investigated employee hazards or develop cost effective solutions and projects to mitigate them. She did not represent the FAA with external Government agencies and regulators in formal and informal meetings. The claimant did not develop new and innovative approaches, methodologies, and/or techniques or act as a team leader to define and direct challenging projects/programs/activities. She did not share responsibility for the performance of programs/projects that frequently affected more than one line of business/staff office (LOB/SA) or the FAA as a whole. The claimant did not apply experience and expert knowledge to her discipline to conduct functional activities for projects/programs that required the development of new and innovative approaches. She did not identify and resolve challenging problems or issues that often crossed organizational boundaries and impacted on the accomplishment of strategic objectives. Typical assignments did not include the prediction of potential issues or proposal of preventive actions. The claimant did not apply knowledge of FAAs policies and procedures to identify, define, and organize resources for large projects, programs, or work activities. She did not acquire and allocate resources or develop scopes of work for contract resources. The claimant did not plan, assign, accept, and reject project tasks performed under varying contracts to provide OSH support or develop safety education programs. She did not have broad discretion to ensure the alignment of organizational goals and policies or the requirements of the projects. The claimant did not prepare, review, and recommend approval of major reports.
The PD/JAT also overstated duties performed by the claimant. For instance, it stated the claimant provided expert guidance and instruction both internally and externally to address diverse, complex issues which often crossed multiple projects, programs, and/or functional areas. Rather, our fact-finding disclosed the claimant provided guidance internally that addressed her assigned programs. The PD/JAT stated the claimant developed briefings to convey a strategic vision to internal and external audiences. Instead, the claimant briefed district-level personnel on a program the HQ Program Office planned to emphasize, as needed.
The claimant provided support functions to the SECMs and SSC managers in the western region while she occupied the FV-0018-J, SOH Specialist position during part of the claim period (i.e., between October 11, 2020, and May 8, 2021).
The claimant provided technical support regarding her assigned EOSH programs (i.e., Confined Spaces, Asbestos, Overhead Cranes and Hoists, First Aid and Defibrillator, Radiation Safety, and Lead Paint Programs). She responded to requests for information to safely plan work from the SECMs for the SSC managers related to the above programs. For instance, the claimant was asked questions about repairs needed at an airport elevator pit, which is a confined space. She reviewed the training records for the SSC technicians who supported the airport for those who were FAA-certified in the technical field to perform the work (i.e., technical training) and completed safety training to enter a confined space (i.e., compliance training). The claimant provided the names of the technicians who completed both types of training to the SECM. If none completed both, she provided the names of those who completed one type of training to the SECM for the SSC manager to decide who performed the repairs (e.g., contract out the repairs or select one of the technicians). The claimant supplied FAA-specific standard operating procedures (SOP) to SECMs, which were written plainly and required no interpretation. The SOPs covered topics that included environmental safety procedures to be followed to drill through floors with asbestos, environmental safety procedures for lead paint removal, and safety precautions to be followed when using overhead cranes and hoists. If safety procedures were requested on a topic with no SOP, the claimant contacted the appropriate HQ Program Office section for the guidance that should be provided in accordance with the circumstances. If an emergency, such as an earthquake, required deviations from FAA- established procedures, she worked closely with her supervisor and/or other management officials so guidelines were developed to fit the situation. She also furnished first aid kits and automated external defibrillators, and safe-level ranges of radiation exposure for employees. The claimant passed along updated policies and procedures to the SSC managers, as needed.
Once a year, the Training Group requested the SSC managers submitted the names of their employees who needed to complete EOSH training courses, which was done through the Corporate Work Plan (CWP) software system. SSC managers answered questions about their employees in the CWP’s Training Needs Assessment Tool, which determined the courses that needed to be completed. The claimant was furnished the employee names and courses for the programs named above and ensured the correct employees were identified for training, in accordance with established requirements. For instance, employees who performed radar system repair/installation work needed to complete radiation safety training, as required.
After the HQ Program Office updated the EOSH training standards, the drafts were forwarded to the claimant and her counterparts for comments (e.g., were all current Government agency requirements included). The comments were reviewed by HQ staff, who decided if any of them would be incorporated into the updated standards.
After capital improvement (e.g., airport tower roof replacement) or needed equipment (e.g., radios) projects for the programs named above were input in the CWP system by SSC managers, the claimant received a CWP-generated email. She accessed the system and reviewed the information provided to ensure the appropriate HQ Program Office section had the information required (e.g., description of the project, scope of work, and photographs of the needed item) to prioritize the projects.
In reaching our FLSA claim decision, we have carefully reviewed all information gained through interviews with the claimant for both positions, as well as documents and information provided by the claimant, her representatives, and the agency. However, we were unable to interview any of the claimant’s former supervisors when she was assigned to either position during parts of the claim period as all of them have retired.
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, except in cases of willful violation where the statute of limitations is three years. 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 which determines the period of possible back pay entitlement (5 CFR 551.702(c)). The claimant makes no assertion of willful violation. The claimant did not file a claim with the agency before filing with OPM. OPM received her claim on May 6, 2022, and this date is appropriate for preserving the claim period. Additionally, the claimant’s representatives formally amended the claim period to be from May 6, 2020, through May 8, 2021.
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. If there is a reasonable doubt as to whether an employee meets the criteria for exemption, the employee should be designated FLSA nonexempt. (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, administrative, and professional (including learned professional).
FG-0018-14, SOH Specialist position
The record did not include a PD/JAT for the FG-0018-14, SOH Specialist position, or a “Federal Aviation Administration (FAA) Fair Labor Standards Act (FLSA) Exemption Worksheet” which would have described the FLSA exemption designation made by the agency. However, the claimant’s assignment SF-50 showed the position designated FLSA exempt. After a careful review of the actual work performed by the claimant, we disagree with the agency’s determination to exempt the claimant’s work based on the executive exemption criteria (5 CFR 551.205), administrative exemption criteria (5 CFR 551.206), and professional and learned professional exemption criteria (5 CFR 551.207 and 551.208) as discussed below for this position.
FV-0018-J, SOH Specialist position
As documented in the “Federal Aviation Administration (FAA) Fair Labor Standards Act (FLSA) Exemption Worksheet” dated July 28, 2020, the agency determined the claimant’s FV-0018-J, SOH Specialist duties do not meet the executive, or professional (including learned professional) criteria and the claimant and her representatives do not disagree. After careful review we concur with the agency thus have not addressed those criteria separately in our evaluation. We also find the actual work performed by the claimant does not meet the administrative exemption criteria (i.e., 5 CFR 551.206) as discussed below for this position.
The current regulations in 5 CFR 551.205 describe the executive exemption criteria, in relevant part, as follows:
(a) An executive employee is as an employee whose primary duty is management (as defined in 5 CFR 551.104) of a Federal agency or any subdivision thereof (including the lowest recognized organizational unit with a continuing function) and who:
(1) Customarily and regularly directs the work of two or more other employees; and
(2) Has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees, are given particular weight.
Administrative exemption criteria
The current regulations in 5 CFR 551.206 describe 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.
Professional exemption criteria
The current regulation in 5 CFR 551.207 states that to qualify for the professional exemption, an employee’s primary duty must be the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction or requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
The current regulations in 5 CFR 551.208 (Learned professionals) state, in relevant part:
(a) To qualify for the learned professional exemption, an employee’s primary duty must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. The work must include the following three elements:
(1) The employee must perform work requiring advanced knowledge. Work requiring advanced knowledge is predominantly intellectual in character and includes work requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical or physical work. An employee who performs work requiring advanced knowledge generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances. Advanced knowledge cannot be attained at the high school level;
(2) The advanced knowledge must be in a field of science or learning which includes the traditional professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy, and other similar occupations that have a recognized professional status as distinguished from the mechanical arts or skilled trades where in some instances the knowledge is of a fairly advanced type, but is not in a field of science or learning; and
(3) The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction which restricts the exemption to professions where specialized academic training is a standard prerequisite for entrance into the profession. The best prima facie evidence that an employee meets this requirement is possession of the appropriate academic degree. However, the word “customarily” means that the exemption is appropriate for employees in such professions who have substantially the same knowledge level and perform substantially the same work as the degreed employees, but who attained the advanced knowledge through a combination of work experience and intellectual instruction. For example, the learned professional exemption is appropriate in unusual cases where a lawyer has not gone to law school, or a chemist does not possess a degree in chemistry. However, the learned professional exemption is not applicable to occupations that customarily may be performed with only the general knowledge acquired by an academic degree in any field, with knowledge acquired through an apprenticeship, or with training in the performance of routine mental, manual, mechanical, or physical processes. The learned professional exemption also does not apply to occupations in which most employees have acquired their skill by experience rather than by advanced specialized intellectual instruction. The position of Engineering Technician is an example of such an occupation where the employee collects, observes, tests and records factual scientific data within the oversight of professional engineers, and performs work using knowledge acquired through on-the-job and classroom training rather than by acquiring the knowledge through prolonged academic study.
FG-0018-14, SOH Specialist position
As noted above, we are evaluating the executive exemption, administrative exemption, and professional and learned professional exemption criteria for this position.
Executive exemption
As defined in 5 CFR 551.104, management means performing activities such as interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or financial records for use in supervision or control; appraising employees’ productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment, or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures.
The claimant’s work does not meet the executive exemption criteria. The claimant’s primary duties did not constitute management as defined in 5 CFR 551.104 because she did not perform any of the activities listed.
Based on the preceding analysis, the claimant’s work does not meet the executive exemption criteria.
Administrative exemption
The claimant’s work does not meet the administrative exemption criteria. While the claimant performed office or non-manual work, her duties were not an extension of the agency’s management process or general business operations and did not help with or affect the management of significant matters within the agency. Rather, the claimant mostly provided technical support for equipment projects. In addition, she did not exercise discretion and independent judgment with respect to matters of significance as described in 5 CFR 551.206(b). For example, she had no authority to formulate, affect, interpret, or implement management policies or operating practices at her 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 was outside the scope of the claimant’s position. Instead, the equipment projects for fuel storage tank repairs/replacements were conventional with only minor detail changes (e.g., tank size, vertical or horizontal tank, or tank location). She also provided well established EOSH program policies, precedents, and procedures to SECMs for use by SSC managers.
The claimant did not carry out major assignments in conducting the operations of the organization. She worked specifically with SSC managers, SECMs, and HQ Program Office staff as needed so the necessary equipment projects were approved and implemented within an organization that provides innovative and strategic direction for infrastructure and airspace design. The claimant carried out very specific functions, rather than major assignments in conducting the operations of the organization, thus her work did not affect the organization’s operations to a substantial degree. She did not have the authority to commit the employer with regard to matters with significant financial impact. The authority rested with higher-level management officials.
The claimant did not waive or deviate from established policies and procedures and had no authority to negotiate and bind the agency concerning significant matters or make significant decisions. Although she used specialized knowledge in the EOSH field, she did not consult with and provide expert advice to FAA management relating to the overall management or the general business operations of the unit, such as would be provided by certain management consultant or program analyst positions. Rather, the claimant provided technical advice and/or recommendations to SSC managers and SECMs related to EOSH program rules and regulations. She also furnished comments to HQ Program Office staff concerning updated EOSH policies for consideration.
The claimant did not plan long or short-term organizational objectives for the organization. She was not involved in the strategic planning efforts that may have served to establish, achieve, or otherwise impact either the long-or short-term objectives or goals of the organization. She had no responsibility to investigate and resolve matters of significance on behalf of management or represent the organization in handling complaints, arbitration of disputes, or resolution of grievances. Those matters were within the authority and responsibility of higher-level management positions.
Based on the preceding analysis, the claimant’s work does not meet the administrative exemption criteria.
Professional exemption
The claimant’s work does not meet the professional exemption criteria. The claimant’s primary duties did not encompass performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a lengthy course of specialized intellectual instruction.
The claimant’s work does not meet the learned professional exemption criteria. Not only does the claimant’s work not require advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction, it also does not meet the three elements described in 5 CFR 551.208(a).
Based on the preceding analysis, the claimant’s work does not meet the professional or learned professional exemption criteria.
FV-0018-J, SOH Specialist position
As noted above, we are evaluating the administrative exemption criteria for this position.
Administrative exemption
The claimant’s work performed under the FV-0018-J, SOH Specialist position does not meet the administrative exemption criteria. While the claimant performed office or non-manual work, her duties were not an extension of the agency’s management process or general business operations and did not help with or affect the management of significant matters within the agency. Rather, the claimant primarily furnished technical support to SECMs regarding her assigned EOSH programs. In addition, she did not exercise discretion and independent judgment with respect to matters of significance as described in the ten factors of the regulation noted above. For example, she had no authority to formulate, affect, interpret, or implement management policies or operating practices at her 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 was outside the scope of the claimant’s position. Instead, she provided technical support at the request of the SECMs for the SSC managers when they planned their repair work and determined who was best qualified to perform the work.
The claimant did not carry out major assignments in conducting the operations of the organization. She worked specifically with SECMs, so the SSC managers had information to safely accomplish their repair work within an organization that ensures a safe and efficient national airspace system through the effective management of air navigation services and infrastructure. The claimant carried out very specific functions, rather than major assignments in conducting the operations of the organization, thus her work did not affect the organization’s operations to a substantial degree. She did not have the authority to commit the employer with regard to matters with significant financial impact. This authority rested with higher-level management officials.
If an emergency required deviations from FAA-established procedures, she worked closely with higher-level management officials, so guidelines were developed to fit the situation. She had no authority to negotiate and bind the agency concerning significant matters or make significant decisions. Although she used specialized knowledge in the EOSH field, she did not consult with and provide expert advice to FAA management relating to the overall management or the general business operations of the unit, such as would be provided by certain management consultant or program analyst positions. Rather, the claimant provided technical advice and/or recommendations to SECMs related to her assigned EOSH programs. She also furnished comments to HQ Program Office staff concerning updated EOSH training standards for consideration.
The claimant did not plan long or short-term organizational objectives for the organization. She was not involved in the strategic planning efforts that may have served to establish, achieve, or otherwise impact either the long-or short-term objectives or goals of the organization. She had no responsibility to investigate and resolve matters of significance on behalf of management or represent the organization in handling complaints, arbitration of disputes, or resolution of grievances. Those matters were within the authority and responsibility of higher-level management positions.
Based on the preceding analysis, the claimant’s work does not meet the administrative exemption criteria.
The claimant’s work in the FG-0018-14, SOH Specialist position does not meet the executive, administrative, or professional exemption criteria and her work in the FV-0018-J, position does not meet the administrative exemption criteria. Therefore, all work performed by the claimant during the amended claim period is nonexempt and covered by the overtime pay provisions of the FLSA. She is entitled to compensation for all overtime hours worked at the FLSA overtime rate. The claim was received by OPM on May 6, 2022, and the claimant’s representatives formally amended the claim period to be from May 6, 2020, through May 8, 2021, due to her not working OT hours when she was detailed during the official claim period. She can receive back pay for the OT hours worked during the amended claim period. 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 in the decision essentially remain the same. Consequently, the agency must verify whether the claimant performs the same major duties and responsibilities described in this decision for the FV-0018-J, SOH Specialist position, which appears to be her position of record.
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, she may file a new FLSA claim with this office.