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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Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance



04/25/2016

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Date

On June 19, 2014, OPM’s Merit System Accountability and Compliance received a “motion for re-consideration” of an earlier OPM claim decision from Mr. Mordy Yankovich on behalf of the claimant requesting the following relief:  “(1) [the claimant’s] classification be changed to FLSA non-exempt, (2) he receive all back pay for overtime hours worked that he was not compensated for since July 14, 2013, (3) interest on back pay payments, and (4) all attorney’s fees.”  He also states the claimant believes his agency acted in willful violation of the FLSA because they failed “to investigate and/or remedy the situation” after he brought it to his supervisor’s attention.  The claimant’s position is classified as Emergency Management Specialist (Response), GS-089-12, in the Response Division, Region 2, Regional Offices, Federal Emergency Management Agency (FEMA), New York, New York.  We received the agency administrative report (AAR) on October 9, 2014.  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 (U.S.C.).

In reaching our decision, we have carefully reviewed all information furnished by the claimant's representative on behalf of the claimant and by the agency, including information obtained from separate telephone interviews with the claimant and his first-level supervisor.

Background

OPM initially received the claim on July 18, 2013.  The claimant’s representative asserted the claimant “was not a member of a collective bargaining unit at any time during the claim period,” which he identified as “July 14, 2013 to present and ongoing.”  To support this, he included a copy of the claimant’s SF-50 showing his status had been changed from bargaining unit to non-bargaining unit effective July 14, 2013.[1]  However, because bargaining unit employees must use the grievance procedures in any existing negotiated  collective bargaining agreement (CBA) as the exclusive administrative remedy for resolving matters that fall within the coverage of the CBA (section 7121(a)(1) of title 5, United States Code (U.S.C.)), OPM cannot assert jurisdiction over the claims of Federal employees who are or were subject to a negotiated grievance procedure under a CBA between the employee’s agency and labor union for any time during the claim period.  Therefore, the claim was denied based on lack of jurisdiction by decision dated April 29, 2014 (OPM decision number F-0343-12-01). 

The “motion for reconsideration” filed by the claimant’s representative on June 19, 2014, included additional information, confirmed by the agency in its AAR, establishing that the agency had determined the claimant’s bargaining unit status prior to July 14, 2013, was erroneous, and that he was exempted from coverage under the Federal Labor-Management Relations Program and its provision for bargaining unit membership under 5 U.S.C. 7112 as a position whose primary function is national security work.[2]  Therefore, we have accepted the reconsideration request and adjudicate the claim on its merits. 

In July 2015, the claimant submitted documentation to OPM showing that his position as Watch Analyst, GS-343, which he had occupied at the GS-11 level from October 24, 2010, to October 22, 2011, and at the GS-12 level[3] from October 23, 2011, to February 7, 2015, had been reclassified to Emergency Management Specialist (Response), GS-089-12, effective February 8, 2015.  All of these positions were designated as FLSA exempt.  Our review of the respective position descriptions (PDs) and information provided by the claimant confirms that the latter reclassification action was not accompanied by any significant change in duties or responsibilities.  The agency, which continues to refer to the claimant’s position by its organizational title of “Watch Analyst,” does not dispute this characterization.  Therefore, the claimant is considered to have occupied essentially the same position for the entire time period for purposes of this FLSA exemption status determination, which applies equally to the position at the GS-11 and GS-12 levels.

Evaluation

Period of the Claim

As provided for in 5 CFR 551.702(b), all FLSA claims filed after June 30, 1994, are subject to a two-year statute of limitations (three years for willful violation).  A claimant must submit a written claim to either the employing agency or to OPM in order to preserve the claim period.  The date the agency or OPM receives the claim is the date which determines the period of possible pay back entitlement.  The claimant’s representative did not indicate he filed a claim with the claimant’s agency.  Therefore, we find the claim was preserved effective July 18, 2013, when the initial claim was received by OPM, and the claimant is potentially due overtime pay for the period two years back from that date, i.e., to July 18, 2011. 

Willful Violation

The next issue normally examined in establishing the claim period is if it should be extended to three years based on if the agency’s actions met willful violation criteria.  “Willful violation” is defined in 5 CFR 551.104 as follows: 

Willful violation means a violation in circumstances where the agency knew that its conduct was prohibited by the Act or showed reckless disregard of the requirements of the Act.  All of the facts and circumstances surrounding the violation are taken into account in determining whether a violation was willful. 

Clearly, not all violations of the FLSA are willful as this term is defined in the regulations.  Error alone does not reach the level of willful violation.  A willful violation requires that either the agency knew its conduct was prohibited or showed reckless disregard of the requirements of the FLSA.  The regulation further instructs all circumstances surrounding the violation must be taken into account. 

The claimant’s representative states the claimant “believes the instant violations were willful as [claimant] has brought it to his superior’s attention and nothing has been done to investigate and/or remedy the situation.”  In the AAR, the agency states the claimant’s first- and second-level supervisors did not recall him discussing the issue of the “improper classification” of the exemption status of his position with either of them.  However, they report the claimant’s first-level supervisor recalled discussing payment of overtime hours with the claimant, but that “the extent of those conversations were regarding the proper coding for the overtime hours” in the electronic timekeeping system, that he did not recall “any conversation with Claimant regarding his FLSA classification,” and therefore “had no reason to investigate and/or remedy a situation about which he was not advised.”  Further, they report the claimant’s second-level supervisor until April 1, 2013, stated they had “a handful of conversations” in which the claimant questioned “why he did not get paid overtime for his hours worked over 8 hours per day,” that he  “went over Claimant’s position description with him and told [him] his position was a national security position”[4] and explained that “overtime was authorized and paid for any hours worked in excess of Claimant’s compressed work schedule.”  They further report he stated the “Claimant seemed to be satisfied with the explanation the handful of times the issue of overtime was discussed with him and never pushed the issue or raised it to a higher level.”

Willful violation does not rest alone on whether the claimant has questioned his exemption status.  It is determined by whether the agency knew its actions violated the Act.  It is unclear what information the claimant may have been given regarding the basis for his FLSA exemption status by his second-level supervisor.  However, the claimant provided no documentation showing that he had formally challenged his exemption status or conveyed his concerns to his agency human resources office which is responsible for making FLSA exemption status determinations.  As discussed in this decision, the agency had erred in its application of the regulations.  However, as noted above, error alone does not establish willful violation.  Therefore, the claimant has not established the agency knew its conduct was prohibited or showed reckless disregard of the requirements of the FLSA, and consequently we find the agency’s actions do not meet the criteria for willful violation as defined in 5 CFR 551.104.

Position information

The claimant’s immediate supervisor has certified to the accuracy of the claimant’s official PD (number L15763).  However, the claimant asserts his PD describes many duties he does not perform and, based on our review, we concur.  For example, he does not serve as a senior level advisor to FEMA management, does not interpret laws, does not review and recommend changes to regional emergency management response policies and plans, etc.  Rather, as discussed later, the claimant performs a technical review of government agency information provided via e-mails and on their web sites about natural and man-made events within New York, New Jersey, Puerto Rico, and the U.S. Virgin Islands, Region 2’s serviced areas, and conveys it to upper-level management in various reports for use in deciding if “activation or deployment of regional resources is needed.”

The claimant serves as a Watch Analyst (WA) at the Region 2, Regional Watch Center (RWC), where the shift staff normally consists of one Watch Officer (WO) and one WA who follow a daily checklist.  The WAs monitor open sources, e.g., CNN and government agency web sites and e-mails, such as the U.S. Geological Survey, Environmental Protection Agency, and the National Oceanic and Atmospheric Association, for natural and man-made events 24 hours a day, seven days a week, occurring within Region 2’s serviced areas.  The claimant also monitors events occurring in other States and internationally for possible impact within the region; e.g., a mass shooting in a European city may increase the security level in cities, airports, and military bases within the claimant’s region.

The claimant develops reports, which follow a template format, of potential or actual incidents which meet the established reporting thresholds in the FEMA Watch Guide, and are approved by his supervisor prior to distribution, for the region’s serviced areas using official information from government agencies.  If the thresholds are not met, the claimant stated he discusses the event with his supervisor, the WO, or a higher-level official prior to issuing a report.  The information in these reports is used to brief higher-level management officials.  The Daily Situational Awareness Report (DSAR) is developed by 12:00 p.m. each day, including weekends and holidays.  It provides an end-of-the-day summary of incidents, current threats, open and impending disasters, team status, and any other items occurring in the region that may be of interest to FEMA headquarters leadership, such as storm watches and warnings, seismic activity, national terrorism alerts, etc.  The Regional Daily Operations Brief (RDOB) is developed by 8:00 a.m. Monday to Friday, excluding holidays.  It provides information such as the regional senior leadership locations, weekly calendar highlights, weather outlooks, and homeland security threat level statuses.  A Shift Change Brief is developed at the end of a shift so the oncoming shift WO is provided the highlights of the previous shift, such as potential events to monitor.  The Midnight Report is developed by 12:00 a.m. each day, including weekends and holidays, and is forwarded to FEMA’s National Watch Center (NWC), confirming that the RWC is in contact with the emergency operation centers in the region’s serviced areas, and event updates.  Situational Awareness Alerts, recently re-named Spot Reports, are developed and distributed throughout a shift for events which are significant and cannot wait to be reported in the region’s next DSAR, e.g., declaration of a State of emergency or disaster, large-scale power outages, major water main breaks, and incidents receiving national attention or requiring a Federal response.  For example, if the RWC is alerted by the National Weather Service (NWS) of flooding occurring within the region’s serviced areas, the claimant copies the details, timing, impacts, and graphics from the NOAA web site and pastes it into a Spot Report.    

If the Regional Administrator determines Federal assistance for an event is needed, the WA assembles a Warning Order to notify the appropriate people to be prepared for deployment during response operations or disasters, and then an Operations Order to activate deployment by the Regional Response Coordination Center.  The Operations Order uses information provided by the supervisor and includes a current description of the event, the mission to be performed, an overview of how to accomplish the mission, and where the designated personnel will perform the mission.  It allows funding to be expended and justifies overtime during the deployment.

Evaluation of FLSA Coverage

Sections 551.201 and 551.202 of title 5 CFR require an employing agency to designate an employee FLSA exempt only when the agency correctly determines that the employee meets one or more of the exemption criteria.  In all exemption determinations, the agency must observe the following principles:  (a) Each employee is presumed to be FLSA nonexempt. (b)  Exemption criteria must be narrowly construed to apply only to those employees who are clearly within the terms and spirit of the exemption.  (c) The burden of proof rests with the agency which asserts the exemption.  (d) If there is a reasonable doubt as to whether an employee meets the criteria for exemption, the employee should be designated FLSA nonexempt.  (e) The designation of a position’s FLSA status ultimately rests on the duties actually performed by the employee and not on language in the PD. 

Neither the claimant nor the agency asserts the claimant’s work is covered by the executive exemption as described in 5 CFR 551.205 or the professional exemption as described in 5 CFR 551.207 and, based on careful review of the record, we agree.  Therefore, our analysis is limited to the administrative exemption described in 5 CFR 551.206 in effect during the period of the claim.[5] 

Administrative Exemption Criteria -

The current regulation under 5 CFR 551.206 (2007) 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 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;

   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 agency determined the claimant’s work is FLSA exempt by application of the administrative exemption criteria contained in 5 CFR 551.206.  However, the agency applied the regulations written in 1997, which were replaced by the regulations effective October 17, 2007.  Because the claim period commences on July 30, 2011, the 2007 administrative exemption criteria in effect during the claim period should have been applied.  Therefore, in the following exemption determination, we respond to the agency’s assertions only insofar as they are relevant to application of the current administrative exemption criteria. 

   The agency bases their decision, in part, on comparison to one of our web-posted cases in which we upheld another agency’s administrative exemption determination, which they assert addresses work similar to the claimant’s. First, the cited case involved an Exercise Specialist responsible for creating training scenarios, duties unrelated to the claimant's.  Second, as stated on our web page, our posted decisions do not substitute for the application of the FLSA regulations and are not "case law."  Each decision relates to a specific position and may not provide either sufficient information or an appropriate basis for extrapolation to other positions.  Therefore, we will not address the cited case in this decision 

   In carrying out his WA duties, the claimant must use a certain degree of judgment, as described in the FEMA Watch Guide , in determining whether an incident requires notification in cases where the magnitude of the event may be below the designated threshold, but due to certain factors requires the delivery of notification, and in cases where there are no established thresholds, such as community fires and train derailments.  However, his primary duties do not include the exercise of discretion and independent judgment with respect to matters of significance within the meaning of this term in 5 CFR 551.206.  The claimant compiles standard information and the details, timing, impacts, and graphics of events from government web sites and emails for inclusion in the various RWC reports.  However, he does not determine or recommend how the agency should respond to this information.  The reports are used by higher level managers in proposing to the Regional Administrator the provision of FEMA assistance.  If the Regional Administrator determines Federal assistance is needed, the claimant’s supervisor provides the information to be included in the Operations Order and reviews and updates it as needed before its distribution.  Within this context, the individual factors addressed in 5 CFR 551.206(b) are addressed below:

   The record shows the claimant has no authority to formulate, affect, interpret, or implement management policies or operating practices at his level.  As the agency states in its AAR, the FEMA Watch Guide provides "comprehensive operational guidance for the FEMA mission."  It provides policies and standard operating procedures covering all aspects of the Watch capability, including reporting thresholds and standard formats, leaving essentially no latitude for individual interpretation, at the claimant's level, of how the function is to be implemented or carried out.  The agency asserts the claimant's work "significantly affects the execution of FEMA's policies or programs."  However, carrying out established and defined work operations is not equivalent to having authority to formulate, affect, interpret, or implement management policies or operating practices; i.e., the authority to make or interpret policy, or to devise or modify the operating practices that will implement those policies, as they are to be followed by others within the organization.  Thus, the agency's assertion that the claimant "is involved in the initial phases of FEMA's program management" misrepresents the nature of his work, which relates exclusively to program operations as defined in the FEMA Watch Guide rather than the program management carried out by higher-level supervisory personnel and others in the agency. 

   The claimant performs a defined, continuing assignment in monitoring open and official sources for actual or potential events occurring during his tour of duty rather than "major" assignments in conducting the operations of the organization.  He does not perform work that affects the organization's operations "to a substantial degree" nor does he have authority to commit the organization in matters that have significant financial impact because, as discussed above, decision-making authority is vested in higher management levels.  For example, the agency acknowledges in its AAR that the claimant "is usually told by his supervisor to prepare the Warnings and Operations Orders and which personnel will be deployed, however, [the claimant] creates these Orders and provides the remainder of the information for the Orders."  This confirms that although the claimant is relied upon to provide factual information in connection with the preparation of Orders, he is not in a decision-making capacity regarding the authorization of deployments resulting in the expenditure of agency funds.  Although the agency states that the claimant "can also create these Orders absent direction from his supervisor after analyzing and evaluating the situation," they provided no specific examples of this having occurred and there is no indication that in these instances the Orders would not otherwise be subject to the same degree of review and approval by higher-level personnel.  In the examples of Orders prepared by the claimant which the agency provided, the Regional Administrator had determined Federal assistance was needed and the claimant’s supervisor had provided the information to be included, reviewed, and updated them as needed before their distribution.  The agency even noted that in the case of the Region II Operations Order they cited, in response to Tropical Storm Bertha, the claimant's supervisor "provided him with the instruction to prepare this Order and the information on who was to be activated," confirming that decision-making authority on matters having significant financial impact is retained at higher supervisory levels. 

   The claimant does not have the authority to waive or deviate from established policies and procedures without prior approval.  Rather, he is authorized to include on his reports incidents that do not meet established thresholds, which may be construed as deviating from procedures, but the nature of his work does not even provide the opportunity for deviating from policy.  The agency provided, as an example of the claimant "further develop[ing] the policies and program functions of the RWC and FEMA," an email exchange between him and his supervisor proposing "a proactive approach regarding the 2014 Belmont Stakes."  However, the record does not show the claimant's recommendations were forwarded to higher-level management or otherwise implemented. 

   He does not have authority to negotiate and bind the organization on significant matters or provide consultation or expert advice to management.  Rather, he collects information from various sources but neither interprets the information nor advises management on courses of action.  The agency provided an example of the claimant "using substantial discretion to analyze and take action on a significant event" through his monitoring of a winter storm in Region II in December 2013 and specifically, his responding directly to the Deputy Regional Administrator's inquiries "without proceeding through his chain of command."  However, obtaining information does not constitute "taking action" that affects operations or commits the organization to a significant degree, and responding to higher-level management inquiries on factual matters relating to the work does not constitute providing consultation or expert advice.  The agency also emphasized that the DSARs and  RDOBs "vary from day to day due to the constant change in circumstances and the information included in the briefs," and must include numerous variables. Likewise, this constitutes the collection of factual information, not the provision of consultation or expert advice to management.

   The claimant is not involved in planning long- or short-range organizational objectives, does not investigate and resolve matters of significance on behalf of management, and is not authorized to represent the organization in handling complaints, arbitration disputes, or resolving grievances.

   Thus, we conclude the claimant’s duties do not meet the administrative exemption.

   Decision

   The claimant does not meet the executive, administrative, or professional exemption criteria.  Therefore, his work is nonexempt and covered by the overtime pay provisions of the FLSA. 

   The record shows the claimant preserved his claim with OPM on July 18, 2013, when his claim dated July 8, 2013, was received.  Since we find the agency did not willfully violate the FLSA, the claimant would have been eligible for back pay two years prior to that date in connection with the filing of this claim.  Therefore, he is entitled to compensation for all overtime hours worked at the FLSA overtime rate from July 18, 2011, forward. 

   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 title 5 overtime pay already paid and interest on the back pay, as required under 5 CFR 550.805 and 550.806, respectively.  We note the claimant has not responded to the agency’s assertions in the AAR that he is on a compressed schedule and has been paid for any hours of overtime he has worked.  See 5 U.S.C. § 6128.  The claimant has not submitted information regarding the amount and extent of overtime work performed for which he has not been compensated or evidence to support this aspect of his claim.  Therefore, the claimant is directed to submit this information to his agency to assist in its reconstruction of his pay records.  If the claimant does not agree with the agency’s determination of back pay under the FLSA and any interest as required under 5 CFR 550.805 and 550.806, he may file a new FLSA claim with this office.  The agency must follow the compliance requirements on page ii of this decision.

   The claimant’s representative seeks attorney fees.  Under 5 CFR 550.807(a): 

   An employee or an employee’s personal representative may request payment of reasonable attorney fees related to an unjustified or unwarranted personnel action that resulted in the withdrawal, reduction, or denial of all or part of the pay, allowances, and differentials otherwise due the employee.  Such a request may be presented only to the appropriate authority that corrected or directed the correction of the unjustified or unwarranted personnel action.  However, if the finding that provides the basis for a request for payment of reasonable attorney fees is made on appeal from a decision by an appropriate authority other than the employing agency, the employee or the employee’s personal representative shall present the request to the appropriate authority from which the appeal was taken. 

   As noted previously, OPM as the appropriate authority has directed the correction of an unjustified or unwarranted personnel action; i.e., the correction of the claimant’s FLSA exemption status.  See B-208911, March 6, 1984, and B-23813, August 22, 1989.  We hereby redirect that request to FEMA to make a determination as the whether the awarding of attorney fees is in the interest of justice as required under 5 CFR 550.807(c).
    

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