Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
Damon B. Ford
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
09/10/2024
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 compute the claimant’s overtime pay in accordance with the instructions in this decision, then pay the claimant any amount owed. If the claimant believes the agency has incorrectly computed the amount owed, 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 July 22, 2022, OPM received an FLSA claim from representatives of the claimant challenging the exemption status of her positions and seeking the difference between the hours of non-FLSA overtime (OT) pay the claimant received and the FLSA OT pay rate for approximately 100 OT hours she worked between July 2020, and July 2022. During part of this period, the claimant occupied a Safety and Occupational Health Specialist, FV-0018-I, position (herein referred to as FV-0018-I, SOH Specialist) and was assigned to the Environmental Occupational Safety and Health (EOSH) Program Support Center (Team B), EOSH Support Operations Group (ESOG), Technical Services Division, Technical Operations Branch, Federal Aviation Administration (FAA), U.S. Department of Transportation (DoT), in Fort Worth, Texas. During another part of the period, she occupied an Industrial Hygienist, FV-0690-J, position (herein referred to as FV-0690-J, IH) and was assigned to the EOSH Program Support Center, ESOG, Technical Services Organization, Technical Operations Division (TOD), FAA, DoT, in Fort Worth, Texas. We have accepted and decided this claim under section 4(f) of the FLSA as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).
The claimant disputes the FLSA exemption status of her positions. The agency determined the positions are exempt (i.e., not covered) by the overtime pay provisions of the FLSA, but the claimant believes they should be designated as nonexempt (i.e., covered) by the FLSA. The claimant requests the difference between the non-FLSA OT pay she received and the FLSA OT pay she is owed for 100 OT hours she worked during the period noted above. We have accepted and decided this claim under section 4(f) of the FLSA as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).
During the claim period, the claimant served in two positions. Between July 22, 2020, and November 21, 2020, she occupied an FV-0018-I, SOH Specialist position, under standardized position document (PD)/job analysis tool (JAT) number AHFS60I. Between November 22, 2020, and July 22, 2022, the claimant occupied an FV-0690-J, IH position, under standardized PD/JAT number AHFS6GJ. Both PD/JATs were provided by the agency.
The claimant disagrees with the exemption status determinations made by the agency for the two positions believing it should be nonexempt, and her representatives state she worked a total of approximately 100 hours of OT when occupying them between July 2020 and July 2022. She requests the difference between the non-FLSA OT she received and the FLSA OT pay rate. The claimant also states she received compensatory (comp) time off hours, and they have all been used. She indicates that the claimant disagrees with the exemption status determinations made by the agency for the two positions believing it should be nonexempt, and her representatives state she worked a total of approximately 100 hours of OT when occupying them between July 2020 and July 2022. She requests the difference between the non-FLSA OT she received and the FLSA OT pay rate. The claimant also states she received compensatory (comp) time off hours, and they have all been used. She indicates that due to the advent of the Coronavirus Disease 2019 (COVID-19) pandemic, the OT hours she worked (later described in this decision) primarily involved overseeing and inspecting cleaning performed by contractors at various facilities. In adjudicating this claim, our primary 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.
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.
FV-0018-I, SOH Specialist position
Our review disclosed the duties described in the PD/JAT (#AHFS60I) for this position are not completely accurate in that it describes duties performed by other FAA organizations or are higher-level management duties. For instance, the claimant did not develop new approaches. Her work activities did not typically impact directly on the objectives of one or more organizational units, major subdivisions, and/or lines of business/staff offices and did not affect the objectives of the FAA.
As a Safety and Environmental Compliance Manager (SECM), the claimant provided technical support regarding various EOSH programs to her assigned Technical Services Center (TSC) Technical Operations (TO) managers and employees, which included Service Support Center (SSC) managers and technicians. She served mainly the Kansas City, Indianapolis, Minneapolis, and Cleveland Districts in the central service area (CSA). However, the claimant serviced the other districts in the CSA, as needed (i.e., Ft. Worth, Houston, Albuquerque, Minnesota, and Chicago).
When the claimant received telephone calls or emails from TSC TO managers with complaints from employees about foul or musty odors in the air, coughing, or headaches, she went onsite, as needed to perform an inspection using the appropriate checklist. She operated an indoor air quality meter to take readings and scanned the areas the affected employees occupied. If issues were found, the claimant gathered the information and prepared a report with recommendations, which was forwarded to her supervisor and other technical support staff for review and comment. For example, if reading levels showed mold was present the mitigation could require using a chemical that destroyed mold growth. If the claimant found evidence of water intrusion (e.g., water/ ceiling stains, bulging dry wall, and water drips), the mitigation could require eliminating the water’s entrance into the facility by repairing the roof.
The claimant provided the information to the TSC TO Manager for consideration and coordinated with others to facilitate abatement of the hazard.
The claimant provided Asbestos General Awareness Training annually to the subordinates of TSC TO managers. When the training was due, she contacted the appropriate manager to request the names of the subordinates and the dates and times available. Based on the information provided, the claimant set-up a ZOOM call, put together (to include incorporating needed updates) and presented the training material, and provided the course information to the attendees. The training was up to three hours in length and based on the established requirements of the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA). Afterward a copy of the sign-in sheet verifying who attended was provided to Program Support Office personnel and forwarded to the training personnel, so credit was given to the attendees. The sign-in sheet was also provided to the appropriate manager, so he/she knew which subordinates completed the training.
During the COVID-19 pandemic the claimant performed additional duties in support of an organizational effort to ensure air traffic control capacity remained. When an employee who reported to a staffed facility (i.e., FAA offices and control towers) tested positive for COVID-19, the facility was cleaned by a contractor. As an extension of her regular and recurring duties, the claimant could have been assigned to oversee the cleaning process. The local manager served as the coordinator and set up the date and time with the contractor to send workers to clean the facility. The claimant wore personal protective equipment (PPE) (e.g., safety boots, gloves, googles, and a respirator) and ensured the FAA maintenance standard operating procedure was followed. For example, she ensured contractor personnel used cleaning chemicals in employee work areas approved by the Centers for Disease Control and Prevention (CDC). If the facility manager or designee and air traffic personnel were in the facility, they were isolated from the areas being cleaned. The claimant input the information (e.g., background information and the results of the cleaning process) in the report template before it was uploaded to the database that held such reports.
FV-0690-J, IH position
Our review disclosed the duties described in the PD/JAT (AHFS6GJ) for this position are not completely accurate in that it describes duties performed by other FAA organizations or are higher-level management duties. For instance, the claimant did not allocate resources to accomplish activities within established schedules and budgetary requirements. She did not develop new and innovative approaches or conduct measurements using industrial hygiene meters and industrial hygiene sampling using non-ionizing radiation monitors.
The claimant provided industrial hygiene support that involved managing environmental conditions which adversely affected the health and safety of FAA employees. The work included controlling and eliminating occupational and environmental health hazards in CSA facilities mainly in the asbestos, indoor air quality, respiratory protection, and occupational exposure programs. She provided support to her assigned SECMs, SSC managers and technicians, and air traffic managers and controllers. She serviced the eight districts in the CSA (i.e., Kansas City, Indianapolis, Minneapolis, Cleveland, Ft. Worth, Houston, Albuquerque, Minnesota, and Chicago).
When the claimant received a telephone call/email from a SECM regarding EOSH concerns at an SSC facility, they discussed the situation so a determination could be made as to whether an on-site assessment was needed. For instance, the claimant conducted a mold assessment based on a SECM notifying her of standing water in an equipment room and confirmation of mold on a supply register in a facility the SECM serviced. After completion of the mold assessment, the claimant completed FAA’s standardized mold assessment report, and summarized her findings and provided recommendations for remediation of the mold (e.g., a recommended action was provided to restore six square feet of plywood and the door in an air intake room and consisted of dampening the affected plywood with amended water, sanding the affected plywood, using a HEPA vacuum, removing and replacing the affected door, and performing general housekeeping within the affected room). The report was provided to the SSC manager. The report was then forwarded to the facility’s real estate contracting officer because the facility was leased, and the lease called for immediate remediation following the identification of mold. Additionally, the airport authority was required to coordinate with the FAA during all remediation activities.
The claimant used her knowledge and training in industrial hygiene to recognize, control, and eliminate mold in FAA facilities. For instance, she went on-site when the results of a regularly scheduled inspection showed mold was present or telephone calls/emails were received from SSC managers with complaints from employees exhibiting possible mold exposure symptoms (e.g., coughing or skin irritation). She inspected the areas in which mold was seen or suspected and took indoor mold samples, which were sent to a laboratory for analysis. She also used air monitoring equipment to detect the level of moisture on/in the walls and in the ambient air, as needed. If mold needed to be removed after the claimant evaluated the laboratory and air monitoring results, she designed a containment structure to be built around the removal area within the facility. The structure was designed using computer aided design software after she analyzed the floor plan and the heating, ventilation, and air conditioning system. The appropriate SSC manager or the claimant input the mold removal project in FAA’s Corporate Work Plan electronic system, and she advocated for project funding. She wrote the statement of work for the contract that covered building the containment structure and mold removal and for the contract that covered the air monitoring to be performed at the end of the project. After the contracts were awarded, she reviewed the contractors work plans to ensure the contractors understood what needed to be done. The claimant was on-site and oversaw the contractors’ work, as needed. After the air monitoring firm determined the area was safe, she analyzed the firm’s documentation to determine if the mold removal was completed or if additional removal work was needed. When the project was completed, the containment structure was removed. The claimant ensured the facility was built back and notified the contracting officer of the project’s completion.
The claimant used her knowledge and training in industrial hygiene to recognize, control, and eliminate asbestos in FAA facilities. For instance, she went on-site at facilities and performed a visual assessment (no samples taken) when the results of a regularly scheduled inspection showed asbestos was damaged (e.g., asbestos-filled insulation wrapped around pipes was damaged and asbestos flakes were visible/fell to the ground) or telephone calls/emails were received from SSC managers with complaints asbestos was seen. If asbestos needed to be removed after the claimant’s visual assessment, she designed a containment structure to be built around the removal area within the facility. The rest of the process is the same as described in the preceding paragraph.
The claimant served as a member of the Certified Industrial Hygiene Technical Advisory Group, which met for two hours every other Thursday. During group meetings, members received assignments from the leader. The assignments were mostly the development of draft standard operating procedures (SOP) for FAAs TOD regarding the asbestos, mold, and lead programs (e.g., how to properly take an asbestos sample based on OSHA and EPA established requirements). After a group member completed his/her draft SOP, the other members commented on the draft. The comments were taken into consideration and a final version of the SOP was written. The group leader forwarded the SOP to his/her peers for review and comment. After needed changes were made, the leader placed the SOP on the EOSH Services intranet site for use by the SECMs.
In reaching our FLSA claim decision, we carefully reviewed all documents and information provided by the claimant, her representatives, and the agency, as well as information gained through interviews with the claimant and one of her former supervisors.
Evaluation
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 July 22, 2022, therefore it is subject to a two-year statute of limitations commencing on July 22, 2020.
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. 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). 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; 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.
FV-0018-I, SOH Specialist position
As documented in the “Federal Aviation Administration (FAA) Fair Labor Standards Act (FLSA) Exemption Worksheet” dated July 28, 2020, for the FV-0018-I, SOH Specialist position, the agency determined the position does 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 analysis below for this position. However, the agency determined the duties and responsibilities described in the claimant’s PD/JAT for this position meet the administrative exemption criteria in 5 CFR 551.206, but the claimant disagrees. Therefore, our evaluation below is limited to the administrative exemption criteria.
FV-0690-J, IH position
As documented in the agency’s FLSA exemption worksheet for the FV-0690-J, IH position dated July 30, 2020, the agency determined this position does not meet the executive exemption criteria and the claimant and her representatives do not disagree. After careful review we concur with the agency thus have not addressed it separately in our analysis that follows. However, the agency determined the duties and responsibilities described in her PD/JAT for this position meet the administrative exemption criteria in 5 CFR 551.206, and the professional and learned professional criteria in 5 CFR 551.207 and 208, but the claimant disagrees. However, as discussed later, because a position need only meet one exemption category to be considered exempt from the overtime pay provisions of the FLSA, we have limited our analysis of this position solely by comparing it to the criteria in the professional and learned professional exemption category.
Administrative exemption criteria
The current regulations in 5 CFR 551.206 establish the administrative exemption criteria, in relevant part, as follows:
An administrative employee is an employee whose primary duty is the performance of office or non-manual work directly related to the management or general business operations, as distinguished from production functions, of the employer or the employer’s customers and whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
(a) In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. The term “matters of significance” refers to the level of importance or consequence of the work performed.
(b) The phrase discretion and independent judgment must be applied in light of all the facts involved in the particular employment situation in which the question arises. Factors to consider when determining whether an employee exercises discretion and independent judgment with respect to matters of significance include, but are not limited to, whether the employee:
(1) Has authority to formulate, affect, interpret, or implement management policies or operating practices;
(2) Carries out major assignments in conducting the operation of the organization;
(3) Performs work that affects the organization’s operations to a substantial degree, even if the employee’s assignments are related to operation of a particular segment of the organization;
(4) Has the authority to commit the employer in matters that have significant financial impact;
(5) Has authority to waive or deviate from established policies and procedures without prior approval;
(6) Has authority to negotiate and bind the organization on significant matters;
(7) Provides consultation or expert advice to management;
(8) Is involved in planning long-or short-term organizational objectives;
(9) Investigates and resolves matters of significance on behalf of management; and
(10) Represents the organization in handling complaints, arbitrating disputes, or resolving grievances.
(c) The exercise of discretion and independent judgment implies the employee has authority to make an independent decision, free from immediate direction or supervision. However, an employee can exercise discretion and independent judgment even if the employee’s decisions or recommendations are reviewed at a higher level. Thus, the term discretion and independent judgment does not require that decisions made by an employee have a finality that goes with unlimited authority and a complete absence of review. The decisions made as a result of the exercise of discretion and independent judgment may consist of recommendations for action rather than the actual taking of action. The fact that an employee’s decision may be subject to review and that upon occasion the decisions are revised or reversed after review does not mean that the employee is not exercising discretion and independent judgment.
(d) An organization’s workload may make it necessary to employ a number of employees to perform the same or similar work. The fact that many employees perform identical work or work of the same relative importance does not mean that the work of each such employee does not involve the exercise of discretion and independent judgment with respect to matters of significance.
(e) The exercise of discretion and independent judgment must be more than the use of skill in applying well-established techniques, procedures, or specific standards described in manuals or other sources.
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.
(b) Expansion of professional exemption. The areas in which the professional exemption may be applicable are expanding. As knowledge is developed, academic training is broadened and specialized degrees are offered in new and diverse fields, thus creating new specialists in particular fields of science or learning. When an advanced specialized degree has become a standard requirement for a particular occupation, that occupation may have acquired the characteristics of a learned profession.
FV-0018-I, SOH Specialist position
Administrative exemption
The claimant’s work in this 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 served as a SECM and mostly provided technical operational support regarding various EOSH programs to her assigned TSC TO managers. In addition, she did not exercise discretion and independent judgment with respect to matters of significance as described in the ten factors 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 claimant followed established guidelines and methods when she provided recommendations to TSC TO managers (e.g., gathered ways to clean up mold based on current EPA and CDC requirements). She also followed existing SOPs and inspection checklists, as needed.
The claimant did not carry out major assignments in conducting the operations of the organization. She worked specifically with TSC TO managers as needed so their questions and concerns were resolved regarding her assigned EOSH programs within an organization that provided various types of technical operations support to the TSC TO managers. The claimant carried out very specific requests for technical assistance, rather than major assignments in conducting the operations of her 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 in matters that had significant financial impact. The claimant was not presented with situations requiring approval, for example, for additional money, people, or other resources to conduct her inspection work. That authority rested with higher-level management officials.
The situations the claimant regularly dealt with did not require her to waive or deviate from established policies and procedures. She did not perform any work requiring her to have authority to negotiate and bind her organization on 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 recommendations to TSC TO managers (and fellow SECMs as requested) related to EOSH program rules and regulations.
The claimant was not involved in planning 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.
While the claimant performed her work independently, free from immediate supervision and direction, in contrast to the application of discretion and independent judgment, she used knowledge and skill in applying well-established rules, regulations, standards, and written precedents which were applicable to the work assigned. Therefore, the decisions she made were not significant within the meaning of the regulation in that they affected the technical support provided and primarily focused on deciding whether a situation conformed to clearly applicable criteria and recommended solutions met established EOSH program requirements.
Based on the preceding analysis, the claimant’s FV-0018-I, SOH Specialist work does not meet the administrative exemption criteria. Therefore, the position is nonexempt, i.e., covered by the overtime pay provisions of the FLSA.
FV-0690-J, IH position
Learned professional exemption
The claimant’s FV-0690, IH work performed during the claim period met the learned professional exemption criteria. Her primary duty required the use of advanced knowledge in a field of science (i.e., industrial hygiene), and included work requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical or physical work. The claimant performed on-site assessments as needed and requested. For instance, after a facility was struck by lightning which resulted in a fire, the CSAs Technical Service Center requested a hazard and environmental assessment of the facility to systematically evaluate the damage to the facility, assess the facility for hazards, and identify industrial hygiene risks. The claimant served as the investigator and evaluated the structure for an unhealthy atmosphere and completed the Post-Incident EOSH Checklist, which used qualitative methods to assess the facility for hazards and identify industrial hygiene risks. She included descriptions of the damage/ potential damage observed (e.g., mold observed throughout the equipment room and a significant fall hazard risk exists due to the damaged roof structure). The claimant advised no employees enter the facility due to the numerous risks to occupational safety and health identified during the assessment. She observed potential exposures to physical, chemical, and biological hazards (e.g., falling objects and abrasions and potential exposure to asbestos, lead, mercury, and other toxic dust as a result of combustion by-products). Based on her professional knowledge and assessment of findings, the claimant recommended the FAA perform a cost/benefit analysis to determine if the facility should be remediated and demolished; remediated, demolished, and reconstructed; or remediated and restored utilizing the current structure. She also recommended any environmental remediation and/or retrieval and decontamination of property be performed by an appropriately licensed, qualified, and experienced contractor.
The claimant conducted an on-site mold assessment based on a SECM notifying her of standing water in an equipment room and confirmation of mold on a supply register in a facility the SECM serviced. After completion of the mold assessment, the claimant completed FAA’s standardized mold assessment report, and summarized her findings and provided recommendations for remediation of the mold. One recommended action called for the restoration of six square feet of plywood and replacement of the door in an air intake room (i.e., dampening the affected plywood with amended water, sanding the affected plywood, using a HEPA vacuum, removing and replacing the affected door, and performing general housekeeping within the affected room). The report was provided to the SSC manager.
Additionally, the intellectual demands of the work and discretion and judgment exercised by the claimant are reflected in her mold detection/removal project responsibilities performed in support of FAA employees to recognize, control, and eliminate hazardous material. For instance, if mold was found or suspected in a facility, the claimant inspected those areas and took indoor mold samples, which were sent for analysis. She also used air monitoring equipment to detect the level of moisture on/in the walls and in the ambient air, as needed. If mold needed to be removed, she designed a containment structure after she analyzed the floor plan and the heating, ventilation, and air conditioning system. She wrote the statement of work for the contract that covered building the containment structure and mold removal and for the contract that covered the air monitoring to be performed at the end of the project. After the contracts were awarded, she reviewed the contractors work plans to ensure the contractors understood what needed to be done. After the air monitoring firm determined the area was safe, she analyzed the firm’s documentation to determine if the mold removal was completed. When the project was completed, the claimant ensured the facility was built back.
The learned professional exemption criteria detailed in 5 CFR 551.208 does not specifically include the 0690, Industrial Hygiene series, which is a professional series. After a thorough review of the academic training and specialized degrees currently available for Industrial Hygiene, we find the field of Industrial Hygiene meets the definition of a profession, having a recognized professional status, as described in 5 CFR 551.208. IHs anticipate, recognize, evaluate, prevent, and control environmental factors or stresses arising in or from the workplace which may cause sickness, impaired health and well-being, or significant discomfort among workers or citizens of the community. They use a broad range of scientific equipment and methods to analyze, identify, and measure human exposure to a wide variety of chemical, physical, ergonomic, or biological contaminants and conditions. Due to job market demands for individuals with specific training and certification in the field of Industrial Hygiene, undergraduate and graduate degrees in Industrial Hygiene are currently offered at several colleges and universities in the United States. In addition, professional organizations such as the American Industrial Hygiene Association and the American Board of Industrial Hygiene offer course accreditation, professional certification (e.g., Certified Industrial Hygienist), and continuing education programs for sustaining certifications. Therefore, the Industrial Hygiene occupation has acquired the characteristics of a learned profession as described in 5 CFR 551.208.
The claimant’s knowledge was acquired by a prolonged course of specialized intellectual instruction and the specialized academic training was a prerequisite for entrance into the Industrial Hygiene profession. For instance, she possesses a college degree in Occupational Safety and Health. This degree is offered at various institutions and provides a fundamental understanding of workplace hazards and how to prevent them from affecting employee health. Instruction includes learning about potentially dangerous exposures in various industries (e.g., industrial and construction), and how to control these threats by developing workplace policies and procedures. The courses cover environmental issues, construction safety, ergonomics, accident investigation, hazardous materials management, and the laws, regulations, and history surrounding workplace safety. Thus, the claimant attained advanced knowledge through her work experience and specialized education in a related field.
Based on guidance in 5 CFR 551.202(g), we will not compare the claimant’s FV-0690, IH work against the criteria in the administrative exemption category because we find her IH position meets the criteria in the learned professional exemption category. A position need only meet one exemption category for the position to be designated as exempt. Therefore, the position is exempt, i.e., not covered by the overtime pay provisions of the FLSA.
The claimant’s work in the FV-0690-J, IH position is exempt from the overtime pay provisions of the FLSA. However, her work in the FV-0018-I, SOH Specialist position does not meet the executive, professional, or administrative exemption criteria. Therefore, her work in this position 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 for only part of the claim period (i.e., between July 22, 2020, and November 21, 2020). The agency must follow the compliance requirements on page ii of this decision. While our decision specifically establishes the claim period for purposes of preserving the claim, by extension it also applies to the period going forward if the claimant is assigned to such a position in the future, and the major duties and responsibilities essentially remain the same as described in this position.
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 claimant stated she received only comp time off hours, and they have all been used. However, the agency must reconstruct the claimant’s pay records only for the period between July 22, 2020, and November 21, 2020, and verify if all the comp time off hours were used and whether she worked any overtime hours during the period stated above. If the agency determines not all comp time off hours were used, the claimant is owed one half of her regular rate of pay for the hours not used. If she worked any non-FLSA overtime hours, the agency must 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 computes the amount, she may file a new FLSA claim with this office.