Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
Federal Emergency Management Agency
U.S. Department of Homeland Security
Washington, DC
Lakshmi Bouchard
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
10/04/2018
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). There is no right of further administrative appeal. 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 as provided in 5 CFR 551.708. This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708 (address provided in section 551.710). The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.
The agency is to review whether the claimant has worked overtime in accordance with instructions in this decision, and if the claimant is determined to be entitled to back pay, the agency must pay the claimant the amount owed. If the claimant believes the agency incorrectly computed the amount owed him, he may file a new FLSA claim with this office. Compliance action on this decision must be completed within 60 days of the date of this decision as provided for in 5 CFR 551.708(c)(1).
Introduction
On October 19, 2017, OPM’s Merit System Accountability and Compliance (MSAC) received a Fair Labor Standards Act (FLSA) claim from Daniel Wynne, an intermittent Reservist employee of the Federal Emergency Management Agency (FEMA) who can be activated and deployed for any national disasters (e.g., hurricanes) or emergency events where the agency is involved. The claimant indicates that based on his hourly pay rate FEMA designated his position as exempt (i.e., not covered) by the overtime pay provisions of the FLSA, but he believes it should be designated nonexempt (i.e., covered) by the overtime pay provisions of the FLSA. In particular, he states he worked 24.5 hours of overtime while attending the Emergency Manager Orientation from August 6-18, 2017, and should have been compensated at the FLSA overtime pay rate rather than only his base (regular) hourly rate for the additional hours worked. The claimant’s position is classified as American Sign Language Interpreter Technical Specialist, IM-1001-01, with the External Affairs Cadre, FEMA, U.S. Department of Homeland Security, Washington, DC. We received an incomplete agency administrative report (AAR) on December 21, 2017, and additional information clarifying the agency’s evaluation on August 10, 2018. 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 FLSA decision, we carefully reviewed all the information furnished by the claimant and the agency, including information obtained during a telephonic interview with the claimant.
Position information
As a FEMA Reservist, when activated and deployed the claimant is assigned to the recently classified position of American Sign Language Interpreter Technical Specialist, IM 1001-01, position description (PD) number RES040. Prior to issuance of this new and first PD, the agency only described his duties in a Reservist Statement of Work (SOW), IM-0301, which describes duties almost identical to those in his current PD. As discussed in the PD and the SOW, his major duties include providing American Sign Language (ASL) interpretation to meet the communications requirements of disaster survivors and the general public throughout emergency operations, and inform victims of the programs and services available while deployed to disasters and other emergency management events. Through his ASL work the claimant provides guidance regarding effective communication access in all phases of emergency response, recovery, mitigation and preparedness. The claimant provides interpreting services to achieve equal access to effective communication including: (1) working collaboratively and providing guidance to the Federal Coordinating Officer, Federal Disaster Recovery Coordinators, External Affairs, Disaster Survivor Assistance, Individual Assistance, Recovery and other program areas that interface with the community; (2) providing guidance to State and local governmental agencies to assist with ensuring people with disabilities have equal access to programs and services; and (3) providing the Support Services Branch or designee, guidance and technical assistance to establish accessibility at Disaster Recovery Centers and other field locations pursuant to established agency policy guidance.
The PD and SOW indicate the incumbent must possess knowledge in the following areas: (1) Disability related civil rights laws and regulations; (2) Expertise utilizing existing resources within communities to meet the access and functional needs of individuals with and without physical access, assistive technology devices and services, durable medical equipment, consumable medical supplies, disability advocacy and service organizations, State and local human services programs, disability related non-profit/nongovernmental agencies; (3) Capacity to work collaboratively with various stakeholders to ensure that the access and functional needs of the survivors are addressed; (4) Interpersonal and communications skills and the ability to perform diplomatically at all times to ensure programs and services are accessible by survivors with disabilities. Experience and certification requirements identified in the PD and SOW includes: (1) Three years of experience providing ASL interpreting for the disability community and service delivery programs; (2) Experience with assessing individual interpreting needs, including the needs for Certified Deaf Interpreter for minimal language skills, tactile sign language, etc.; and (3) Certification by the Registry of Interpreters for the Deaf (RID), or equivalent state level certification or licensure. The position requires that the incumbent train, maintain a state of readiness, and be deployed into the possible high-risk environment of a disaster site.
The supervisor provides operational and administrative direction with assignments in terms of broadly defined missions and objectives. The incumbent has autonomy in planning and carrying out assignments and is considered an authority in the specific area of responsibility. He independently plans, carries out, and schedules his work, and results are considered technically authoritative and normally accepted without significant change. Review of work covers such matters as fulfillment of program objectives and the effect of advice and influence on the overall mission.
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 that determines the period of possible back pay entitlement. The claimant did not file a claim with the agency and he does not contend the agency willfully violated the FLSA. We find the claim was preserved effective October 19, 2017, when it was received by OPM, and is subject to a two-year statute of limitations commencing on October 19, 2015. Therefore, the entire period of the claim is covered.
Evaluation of FLSA Coverage
Sections 551.201 and 551.202 of title 5 CFR require an employing agency to designate an employee as 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 that 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.
In its AAR, the agency states that “In the absence of formalized duties, the FLSA determinations for Reservist employees were made using salary as the primary indicator.” However, the agency failed to apply any of the exemption criteria in 5 CFR Part 551, and neglected guidance in 5 CFR 551.202(e), which states “While established position descriptions and 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 the claimant’s discussions with his agency’s payroll staff regarding not receiving time and one-half for overtime worked while attending his Emergency Manager Orientation, he states in his claim he was told the agency had to follow the instructions in FEMA Premium Pay Manual FM 253-2-1, section 2.3 A2, which sets overtime rates for exempt employees as stated below which the agency believes justifies his exemption status:
“For employees with rates of basic pay greater than the basic pay for grade GS-10, step 1, the overtime hourly rate is the greater of: (a) The hourly rate of basic pay for the GS-10, step 1, multiplied by 1.5; or (b) The employee’s hourly rate of basic pay.”
The preceding section of the FEMA Premium Pay Manual is similar to the overtime computation criteria discussed in 5 CFR 550.113(b). However, 5 CFR 550.101 (Coverage and exemptions), section (c), Employees to whom section 550.111, 550.113, and 550.114 of this subpart do not apply, specifically states this subpart does “not apply to an employee who is subject to the overtime pay provisions of section 7 of the Fair Labor Standards Act of 1938 and part 551 of this chapter.” While the agency determined that the claimant’s rate of basic pay met the preceding criteria, as addressed above this does not constitute a determination of FLSA coverage because published exemption criteria in 5 CFR Part 551 was not originally applied, and exemption determinations ultimately rest “on the duties actually performed by the employee.”
The agency initially designated the appellant’s work in his SOW as exempt solely basing the criteria on his hourly rate and not on published exemption criteria. When the agency finally classified and issued PD#:RES040 for the duties performed, the agency conceded that the work performed is nonexempt and identified the FLSA status correctly. We also note there is virtually no difference between the duties described in the SOW and the current PD. Therefore, we conclude the claimant’s present and past ASL interpreter work should be nonexempt. However, to confirm this conclusion we have applied the criteria for executive exemption (5 CFR 551.205); administrative exemption (5 CFR 551.206); professional and learned professionals exemptions (5CFR 551.207 and 5 CFR 551.208); and creative professionals exemption (5 CFR 551.209) addressed in OPM’s FLSA regulations.
Executive exemption
The current regulation under 5 CFR 551.205 describes an executive employee as an employee whose primary duty is management (as defined in 5 CFR 551.104) of a Federal agency or any subdivision thereof (including the lowest recognized unit with a continuing function) and who:
(1) Customarily and regularly directs the work of two or more other employees; and
(2) Has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees, are given particular weight.
The claimant’s position clearly does not meet the executive exemption criteria. Unlike this criteria, the record indicates he does not occupy a management position and does not carry out any of the management authorities defined in the regulation. He also does not direct the work of two or more employees, and has no authority to hire, fire, advance, promote, or recommend any other change of status for employees.
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:
- Has authority to formulate, affect, interpret, or implement management policies or operating practices;
- Carries out major assignments in conducting the operation of the organization;
- 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;
- Has the authority to commit the employer in matters that have significant financial impact;
- Has authority to waive or deviate from established policies and procedures without prior approval;
- Has the authority to commit the employer in matters that have significant financial impact;
- Has authority to negotiate and bind the organization on significant matters;
- Provides consultation or expert advice to management;
- Is involved in planning long-or-term organizational objectives;
- 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 claimant’s work does not meet the administrative exemption criteria. Although the claimant’s primary duty involves the performance of office or non-manual work, it is not directly related to the management or business operations of the agency. Rather, as an ASL Interpreter he performs a component of the line work of FEMA in communicating with deaf victims of disasters and securing assistance for them. In addition, his work does not involve the application of discretion and independent judgment to matters of significance with respect to the management or general business operations of the agency. Unlike the administrative exemption criteria, the claimant’s ASL responsibilities are not viewed as an extension of the agency’s management or business operations. Moreover, the impact of his work is limited to that which he personally performs as it relates to ASL interpretation with specific clients rather than helping to manage or affecting the management of significant matters within the claimant’s agency.
Although in performing ASL interpretation the claimant exercises judgment in selecting the appropriate element of sign-language to communicate with clients, he uses well-established techniques to do so. In addition, his actions do not involve the application of discretion and independent judgment with respect to matters of significance as addressed in the ten factors of the regulation previously listed. For example, as a line worker the claimant has no authority to formulate, affect, interpret, or implement management policies or operating practices. He carries out individual ASL interpretation assignments rather than major assignments in conducting the operations of the organization, and his work products (e.g., clear communication to accurately describe services needed by the deaf victim) do not affect the organization’s operations to a substantial degree. Moreover, the claimant has no authority to commit FEMA in matters having significant financial impact, or to waive or deviate from established policies and procedures without prior approval. As an employee performing an element of the line work of the agency, the claimant lacks authority to negotiate and bind FEMA on significant matters; does not consult with and provide expert advice to FEMA management on matters relating to the management or general business operations; and is not involved in planning long- or short-term organizational objectives for the agency. Additionally, the claimant does not investigate and resolve mattes of significance on behalf of management. Finally, the claimant is not authorized and does not represent the FEMA in handling complaints, arbitrating disputes, or resolving grievances against the disaster relief organization.
Based on the preceding analysis, the claimant’s position does not meet the administrative exemption.
Professional and Learned Professionals Criteria
The current regulations under 5 CFR 551.207 describe the professional criteria, in relevant part, as follows:
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 creative endeavor.
The current regulations under 5 CFR 551.208 describe the learned professionals criteria, in relevant part, as follows:
(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. The 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.
(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 pre-requisite 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 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 training and classroom training rather than by acquiring the knowledge through prolonged academic study.
The claimant’s work does not meet the professional exemption criteria. Unlike the criteria, the claimant’s primary duty is not 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. As an ASL Interpreter, IM-1001, the claimant applies voice-to-sign and sign-to-voice skills, but this work does not require advanced specialized knowledge in a field of science or learning as described above. Our fact-finding disclosed that interpreters desiring certification by the National Association of the Deaf (NAD) have two alternate courses of action to qualify to take the National Interpreter Certification (NIC) interview and performance examination including holding a bachelor’s degree in any field or through having a combination of ASL course work and experience (Alternative Pathways to Eligibility) leading to being a certified member of the Registry for Interpreters for the Deaf (RID). The claimant’s Bachelor Degree is in multi-disciplinary studies. These requirements are reflected in the USAJOBS – Job Announcement number FEMA-17-KML-132953-RSV, advertising the FEMA position of Certified Deaf Interpreter Technical Specialist open from February to May 2017, which listed the qualifications as: (a) three years of experience providing ASL interpreting services for the disability community and service delivery programs and; (b) active and valid certifications by the NAD with Advanced or Masters (skill level) and by the RID, or equivalent state level certification or licensure.
Not only does the claimant’s work not require advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction, it also does not include the three elements described under the learned professionals criteria. In contrast to the first element, the claimant’s ASL interpreting is not predominantly intellectual in character requiring the consistent exercise of discretion and judgment typically needed in applying advanced knowledge in a field of science or learning. The claimant makes only routine mental decisions to interpret and capture the meaning of the message received in sign language, and pass on the client’s request for assistance to staff of the Disaster Recovery Center. In that role he facilitates communication and serves as a conduit to get assistance for the deaf disaster victim.
The claimant’s work does not meet the second element of the learned professionals criteria because he does not apply advanced knowledge of the traditional professional fields of science or learning listed in that element. Unlike those fields, the occupation of ASL Interpreter does not have a recognized professional status, and no professional degrees are awarded in that field. Moreover, as opposed to professional series, the Handbook of Occupational Groups and Families does not identify the General Arts and Information Series, 1001, as a professional series. Also, the previous SOW assigned the duties to the Miscellaneous Administration and Program Series, 0301, which is described in the Handbook as a series which “includes positions the duties of which are to perform, supervise, or manage nonprofessional, two-grade interval work for which no other series is appropriate.”
The claimant’s work does not meet the third element of the learned professionals criteria. As previously discussed, his work as an ASL Interpreter is not based on knowledge customarily acquired by a prolonged course of specialized intellectual instruction, and the work is not restricted to professions where specialized academic training is a standard pre-requisite for entrance into the occupation. No particular academic degree is needed by ASL Interpreters and all the knowledge and skill required to perform the work is learned through a combination of specialized technical course work, training, and experience.
Based on the preceding analysis, the claimant’s position does not meet the professional or learned professionals exemption.
Creative Professionals Exemption Criteria
The current regulation under 5 CFR 551.209 describes the creative professionals exemption criteria, in relevant part, as follows:
(a) To qualify for the creative professional exemption, an employee’s primary duty must be the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor as opposed to routine mental, manual, mechanical, or physical work. The work performed must be “in a recognized field of artistic or creative endeavor,” including such fields as music, writing, acting, and the graphic arts. The exemption does not apply to work which can be produced by a person with general manual or intellectual ability and training. The requirement of “invention, imagination, originality, or talent” distinguishes the creative professions from work that primarily depends on intelligence, diligence, and accuracy.
The claimant’s position does not meet the creative professionals exemption criteria. Unlike the criteria, his primary duty is not to perform work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor including those fields described above. As opposed to the exemption criteria, his ASL interpreting work requires general intellectual ability and completion of technical training and/or experience. In contrast to the exemption criteria, the successful accomplishment of his work primarily depends on his diligence and accuracy in ASL interpretation to clearly communicate with the deaf.
Decision on FLSA Coverage
The claimant’s work does not meet the executive, administrative, professional and learned professionals and creative professionals exemption criteria. Therefore, the claimant’s work is nonexempt and covered by the overtime pay provisions of the FLSA. The claimant is entitled to compensation at the FLSA overtime rate for all overtime hours worked during the claim period. Since the claim was received by OPM on October 19, 2017, the claimant can receive back pay for two years prior to that date (i.e., to October 19, 2015), and for any overtime worked to the present.
The record contains several of the claimant’s “Statements of Earnings and Leave” covering portions of the claim period. In these it shows the claimant received “Overtime – Premium Rate” for additional hours worked. However, these hours were paid at his regular hourly rate. Receipt of title 5 premium pay for overtime worked when an employee is found to be FLSA nonexempt also affects an employee’s overtime pay entitlement calculation. The agency must follow the compliance requirements on page ii of this decision.
The agency must reconstruct the pay records for the claimant for the period of the claim and compute: (1) the back pay for the FLSA overtime pay owed and any interest on the back pay, as required under 5 CFR 550.805 and 550.806, respectively; and (2) FLSA overtime with interest in addition to the premium overtime pay already paid. The back pay owed is the difference between what should have been paid for FLSA overtime pay plus interest, and what was actually paid. If the claimant believes the agency incorrectly computed the amount, he may file a new FLSA claim with this office.