Washington, DC

U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code

---

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


10/06/2016

---

Date

Introduction

On May 27, 2015, OPM’s Merit System Accountability and Compliance (MSAC) received a Fair Labor Standards Act (FLSA) claim from Evelyn F. Smith seeking to retroactively correct her exemption status under the FLSA for the time she served as a Program Analyst, NF-343-04, with Fleet and Family Readiness, Commander, Navy Installations Command (CNIC), Department of the Navy (DON), Naval Station, Everett, Washington (Installation).  The claimant asserts that from August 7, 2014, to September 17, 2014, her agency incorrectly designated her position as FLSA exempt under the provisions of the administrative exemption and she is consequently entitled to the difference between the overtime wages she was paid under the premium pay provisions of the Commander, Navy Installations Command Instruction 5300.2, May 10, 2011, Navy Installation Command Nonappropriated Fund Personnel Manual, and “full overtime wages” under the FLSA during the aforementioned period of employment.  We received the agency administrative report (AAR) on September, 2, 2015, and 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, U.S.C.

In reaching our FLSA decision, we have carefully reviewed all information furnished by the claimant and her agency, including information obtained from separate telephone interviews with the claimant on June 1, 2016, and July 6, 2016, and with her supervisor during the aforementioned claim period, on June 6, 2016, and another employee knowledgeable of the responsibilities of the claimant’s position.

Position Information

The Navy Goldstar (NGS) program covers five regions (i.e., Northwest, Southwest, Northeast, Southeast, and District of Columbia) consisting of 80 naval installations which are serviced by a total of 12 installation NGS program coordinators.  According to the record, during the claim period, the claimant was the only installation NGS program coordinator servicing the Northwest region.

The claimant's position description (PD) of record during the claim period lists a number of “program support” and “managerial” duties which the claimant asserts she did not perform nor would have performed had she continued in her employment.  She asserts she did not have, nor would have had, authority to make independent choices free from immediate direction or supervision, or to waive or deviate from established policies and procedures without prior approval.  She further asserts that all decisions for the installation Navy Goldstar (NGS) program were made by her direct supervisor (Director of the Fleet and Family Support Center (DFFSC)), the Regional Navy Goldstar Coordinator (RNGSC) for the Northwest region, or high-ranking personnel at the headquarters level.

The claimant’s supervisor initially certified to the accuracy of the PD, stating the claimant’s lack of understanding of the work of the position is a result of not having occupied the position long enough to experience the full scope and complexity of the duties, and stated the PD described the work the agency expected the position occupant to perform.  However, when presented with information obtained from another employee on the actual functions assigned to the claimant’s position and performed by her, the supervisor acknowledged that the claimant’s PD did not correctly describe the work assigned by management and actually performed by the claimant during the claim period.  For example, the PD states the installation NGS program coordinator is the “designated program manager of long term survivor assistance support services.”  However, the record shows program management rests with the RNGSC or higher-level management within the organization.  It also states the installation NGS program coordinator “coordinates with the RNGSCs to ensure they are properly trained to provide briefings to commands to enhance awareness of available long term survivor assistance support services.”  However, the record shows that the primary responsibilities of the installation NGS program coordinator are case management and event planning for survivors of deceased active-duty Navy personnel within the Northwest region and that the installation NGS program coordinator is not responsible for providing training to the DFFSC and the RNGSCs as they are already subject matter experts (SME) with regard to the NGS program.

The PD states the installation NGS program coordinator “tracks the status of the program in their area of responsibility, issues, trends, and areas needing improvement.”  However, the record shows the installation NGS program coordinator does not perform either quantitative or qualitative analysis of data associated with the NGS program nor is he/she responsible for tracking trends or identifying areas needing improvement.  The PD also states, in addition to “planning regular work assignments,” that the installation NGS program coordinator prepares plans to meet substantial changes in workload; assists with justifying revisions in staffing levels, work priorities, and deadlines; develops and reports estimates of budget requirements to higher management; assigns work to employees based on selective consideration of such factors as the difficulty and requirements of assignments, availability, capability, and special qualifications of the employee and workload; develops and issues written instructions and standard operating procedures; and ensures compliance, reviews work, and accepts or rejects products.  However, the record shows the primary responsibilities of the installation NGS program coordinator are case management and event planning for survivors of deceased active duty Navy personnel.  Further, the installation NGS program coordinator has no subordinates and, therefore, does not exercise any supervisory or leader responsibilities or have the opportunity to make the staffing level recommendations described in the PD.

The installation NGS program coordinator identifies local, State, and Federal programs and services available to survivors of deceased active-duty Navy personnel with no cost to the agency and helps survivors transition to these no-cost programs and services when the Navy’s twelve-month post-death support program funded through the Casualty Assist Calls Officer (CACO) ends.  She/he submits proposals for projects, events, and exceptions to normally unauthorized services (e.g., support services requiring expenditure of funds, etc.) through the DFFSC to the RNGSC who is responsible for the management and general business operation of the NGS program within the Northwest region and for providing the installation NGS program coordinator with applicable guidance and direction.  The installation NGS program coordinator communicates with the Northwest region’s RNGSC who reviews agency-level policy and program changes, identifies any possible impact to the region’s NGS program, and provides the installation NGS program coordinator with advice and direction associated with these changes.

The installation NGS program coordinator is expected to know and adhere to all guidance associated with the NGS program (e.g., NGS desk guide, Navy policy guides and directives, standard operating procedures, written and oral guidance provided by the DFFSC and the RNGSC, etc.).  As a case manager, the installation NGS program coordinator conducts interviews with survivors, uses available guidance to develop appropriate plans of assistance for each case within the area of responsibility, stores case-related information (e.g., individual survivor information, services provided, time spent during each contact, etc.) in databases such as Defense Casualty Information Processing System (DCIPS) and the Central Scheduling Management (CSM) database, and seeks advice and direction from the DFFSC and RNGSC with regard to any unusual, controversial, or difficult issues he/she may encounter.

The installation NGS program coordinator develops proposals for activities and events (e.g., Fallen Sailor event) designed to commemorate deceased active duty Navy personnel and provide an environment where the survivors can receive support from other survivors and/or connect with a variety of local, State, and Federal program and service providers.  She/he submits event proposals through the DFFSC, to the RNGSC or higher-level management officials, for consideration and approval.  Once the proposed events are approved, the installation NGS program coordinator submits a form 5060 (i.e., list of necessary resources, facilities, and personnel), and provides the base security personnel with the names and credentials of all personnel who may seek admittance during the proposed event in order to decrease confusion and facilitate admittance.

The installation NGS program coordinator identifies equipment, supplies, and other needs requiring the expenditure of funds and forwards funding requests to the RNGSC for approval.  He/she communicates regularly throughout the week with the DFFSC and RNGSC to share information, propose events and strategies, or receive advice and direction.  Communications with the DFFSC are frequent and usually accomplished via telephone, e-mail, or in-person visits; however, communications with the RNGSC are less frequent and are through e-mails or telephone conversations due to geographic separation.

The claimant did not perform the full scope of duties expected of the installation NGS program coordinator during her 45 days of employment.  The actual work she performed consisted of receiving Commander Navy Installations Command (CNIC) training associated with the NGS program (e.g., program overview and parameters, data sources and storage mediums, contacts for NGS program support both inside and outside her facility, etc.), and making initial contacts and sharing basic NGS program information with mortuary personnel, FFSC staff, and active duty Navy personnel and their families.  She also accessed a variety of databases used to identify cases and record information obtained from clients; identified and contacted local, State, and Federal offices with resources and programs which might support the goals of the NGS program within the Northwest region; and communicated with her supervisor and NGS managers to obtain guidance and receive direction regarding NGS program parameters and goals and to provide feedback to DFFSC and RNGSC.                                                                                                                     

Evaluation of FLSA Coverage

Subpart G of part 551 of title 5, Code of Federal Regulations (CFR), applies to FLSA exemption status determination claims, FLSA claims for minimum wage or overtime pay for work performed under the Act, and complaints arising under the child labor provisions of the Act.

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.  Neither the claimant nor the agency asserts the claimant’s work was covered by any other exemptions detailed in 5 CFR 551 subpart B and, based on careful review of the record, we agree.  Therefore, our analysis is limited to the administrative exemption in effect during the period of the claim.

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 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 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 choice, 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 record shows that neither the work of a fully functioning incumbent of the position at the claimant’s installation, nor the actual work performed by the claimant during the claim period, meets the administrative exemption criteria.  Neither involves formulating and affecting management policies or operating practices or providing interpretation and/or implementing policies independent of standard operating procedures and supervisory advice and control.  Instead, the installation NGS program coordinator is required to consider and follow NGS program guidance as well as other written and oral guidance received during consultation with the DFFSC, RNGSC, and higher-level management, who are ultimately responsible for the NGS program.  In addition, the installation NGS program coordinator does not have the authority to commit the agency on significant financial or equivalent matters.  Instead, he/she is required to submit requests and receive authorization from DFFSC, RNGSC, or higher-level management for needed funds, supplies, equipment, and services before initiating proposed projects and events.

The installation NGS program coordinator does not have the authority to waive or deviate from established policies and procedures without prior approval from the DFFSC, RNGSC, or higher-level management.  In addition, it is not a function of the installation NGS program coordinator to plan long and/or short term program objectives, investigate and resolve matters of significance on behalf of management, or to represent the NGS program during complaints, arbitrating disputes, or resolution of grievances, should those or equivalent controversies arise, as these responsibilities are vested in the DFFSC, RNGSC, or higher-level management within the organization.  Although a fully functioning incumbent of the position would be expected to coordinate NGS events and projects with the DFFSC and RNGSC, he/she is not responsible for leading teams to complete major projects within the meaning of the regulation.

Thus, the record shows that although the work of the installation NGS program is an installation staff support program directly related to the management or general business operations of the installation, the NGS program coordinator is not authorized or required to exercise discretion and independent judgment with respect to matters of significance within the meaning of the regulation.

Decision on FLSA Coverage

Neither the work actually performed by the claimant during the claim period, nor the work performed by a fully functioning incumbent of the position, meets the administrative exemption criteria.  Therefore, the work is nonexempt and covered by the overtime pay provisions of the FLSA.  The claimant is entitled to compensation for all overtime hours worked during the claim period at the FLSA overtime rate.  Since the claim was received by OPM on August 29, 2015, the claimant can receive back pay for two years prior to that date, which encompasses the entire period of overtime at issue in the claim.

The agency must reconstruct the claimant’s pay records for the period of the claim (i.e., from August 7, 2014, through September 17, 2014) and compute back pay for the difference between the FLSA overtime pay owed and any non-FLSA overtime pay already paid, and interest on the back pay, as required under 5 CFR 550.805 and 550.806, respectively, if she is due FLSA overtime pay.  If the claimant believes the agency incorrectly computed the amount, she may file a new FLSA claim with this office.

Back to Top