Washington, DC

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

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


06/13/2016

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Date

Introduction

On January 6, 1995, the General Accounting Office (GAO), now the Government Accountability Office, received a Fair Labor Standards Act (FLSA) claim from the Law Offices of Bernstein and Lipsett, P.C. (B&L), the claimant’s duly appointed representative, filed on behalf of their client, Mr. Thomas B. Devlin, requesting a review of his exemption status under the FLSA when he served as a Special Agent, GS-1811-13, from January 6, 1993, to October 29, 1994, with the Federal Bureau of Investigation (FBI).  GAO never acted on the claim.  Subsequently, after numerous court filings, B&L filed the claim with OPM’s Merit System Accountability and Compliance (MSAC) for adjudication.  We received the agency administrative report (AAR) on October 15, 2014.  We have accepted and decided this claim under section 4(f) of the FLSA of 1938, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).

In reaching our FLSA decision, we have carefully reviewed all information furnished by the claimant’s representative and the agency, including information obtained from separate telephone interviews with the claimant (who retired from the FBI on March 28, 2008), and a former (now retired) Special Agent who worked with the claimant in the Boston Division during the claim period.  We were unable to locate for interview any of the claimant’s former supervisors during the claim period.

Background

On January 6, 1995, the claimant’s representative originally filed an FLSA administrative claim with GAO on behalf of the claimant disputing the FBI’s determination exempting his position (i.e., Special Agent, GS-1811-13) from the overtime pay provisions of the FLSA.  Simultaneously, B&L filed a lawsuit on the claimant’s behalf on the same matter in the U.S. Court of Federal Claims (CFC).  Based on information provided by B&L, on November 11, 1996, the claimant withdrew his claim before the CFC which was dismissed without prejudice by order dated November 18, 1996.  On June 17, 2011, OPM received a letter of the same date from B&L requesting that OPM adjudicate the administrative claim originally filed with GAO, asserting “it is still pending before the Office of Personnel Management (“OPM”), which succeeded GAO as the repository of such claims.”  However, in a claim decision (number F-1811-13-12) dated November 2, 2012, OPM denied the claim finding it time barred.  B&L then filed suit in the U.S. District Court for the District of Columbia under the Administrative Procedure Act, seeking to set aside OPM’s claim decision and have it remanded to OPM for further adjudication.  B&L prevailed before the district court, which in an Order Granting Summary Judgment dated May 28, 2014, remanded the case to OPM for further adjudication.  On March 19, 2015, B&L filed another action before the CFC, alleging that the court had jurisdiction to settle the claim.  In their letter of March 20, 2015, to the former Director of OPM informing the OPM of the CFC lawsuit, B&L expressed the view that consideration of the claim “must be halted” under 5 CFR 551.703, which indicates that “OPM will not decide an FLSA claim that is in litigation.”  Accordingly, OPM suspended the claim.  However, in a letter of August 17, 2015, to OPM’s Acting Director, B&L informed the OPM that on August 10, 2015, they had withdrawn the “foregoing lawsuit” with the CFC without prejudice.  Based on that notification, B&L requested that OPM proceed to “process and resolve Mr. Devlin’s claim” in accordance with the order of the U.S. District Court for the District of Columbia referenced above. 

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, except in cases of willful violation where the statute of limitations is three years.  Based on the order by the U.S. District Court for the District of Columbia cited above remanding the claim to OPM for adjudication, we find the claim was preserved effective January 6, 1995, when it was received by the GAO.  The claimant identified the period of his claim to be January 6, 1993, to October 29, 1994.  Therefore, the entire period of the claim identified by the claimant falls within the two-year statute of limitations provided for in 5 CFR 551.702(b). 

Position Information

During the claim period, the claimant was assigned to the FBI’s standard position description (PD), # 78-FO-712, classified as Special Agent, GS-1811-13, dated January 5, 1978.  This generic PD generally describes the criminal investigative duties and responsibilities of a GS-13 full performance level Special Agent FBI-wide.  From January 6, 1993, to June 20, 1993, the claimant served as a full time member of the FBI’s Hostage Rescue Team, with duty station at the agency’s training facility in Quantico, Virginia.  On June 21, 1993, he received a directed relocation to the FBI’s Boston, Massachusetts, Division as a Special Agent, GS-1811-13, performing criminal investigations with a collateral duty to serve as a team leader of Special Weapons and Tactics (SWAT) in the Division’s Crisis Management Team.  He was in that position on the end date of his claim.

Upon review of the duties and responsibilities described in the PD, the claimant agreed with the PD that when assigned to the Boston Division he planned, conducted, and led many of the most complex criminal investigations targeting major and widespread organized criminal organizations trafficking in illegal drugs throughout the Division’s geographic area of jurisdiction.  Similar to the PD, the criminal organizations were large in size and complex in structure with a number of primary and subsidiary activities and multiple subjects, and the subjects’ individual involvement in directing the importation and distribution of narcotics was extremely difficult to establish.  As described in the PD, in carrying out investigations the claimant exercised a high degree of ingenuity, resourcefulness, and creative thinking to resolve complex investigative problems, discover sources of information, obtain material facts or evidence, and anticipate and cope with emergency situations.  In performing investigations the claimant regularly dealt with a wide range of individuals from all backgrounds and social levels, frequently interviewing witnesses, subjects, or suspects under circumstances requiring heavy personal responsibility in overcoming unresponsiveness, hostility, or violence.  He prepared cases for review by the local U.S. Attorney, testifying in Federal court or advising others on the findings of investigations.  In addition, as a Special Agent specifically trained in hostage rescue and SWAT team activities and procedures, he was occasionally called upon to participate, train, and lead members of such elements to handle critical cases of extraordinary importance.  The claimant noted that prior to his assignment to the Boston Division (and as mentioned in the PD) he served as a full-time member of one of the agency’s special squads, the Hostage Rescue Team, during the first five and a half months of the claim period.  At that time, he participated in actual hostage rescue operations, or regularly trained for them at the agency’s Quantico, Virginia, training facility, but did not perform criminal investigations.  Similar to the PD, at the Boston Division he received only very general technical and administrative direction from his supervisor, or the Special Agent- In-Charge of the office.  He worked with a high degree of independence on the initial, interim, and concluding stages of investigations.  As stated in the PD, the supervisor generally reviewed the claimant’s work for the presence of supporting investigative reports and evidence, and resolution of critical case issues. 

In contrast to the PD, our fact-finding disclosed the claimant did not “assist in formulation of overall policies and procedures” for the agency.  While as a senior SWAT team member he advised his supervisor on particular approaches and tactics for occasional operations requiring participation of the ad hoc Boston Division SWAT Team, overall agency policies, general guidance, and specific investigative procedures were developed by the agency’s headquarters staff, not by criminal investigators assigned to field offices.  In addition, unlike the PD his investigations did not influence changes in laws, regulations, policies, or operations, or establish precedents for future actions. 

Evaluation of FLSA Coverage

Under the provisions of 5 CFR 551.706, OPM determines the facts necessary to adjudicate a claim.  To determine whether the claimant is owed overtime pay under the FLSA, we must first determine whether the work performed during the claim period is exempt or nonexempt from the overtime pay provisions of the FLSA.  Sections 551.201 and 551.202 of 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 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.  Our analysis of the claimant’s duties follows.  

Because the claim period occurred during 1993 and 1994, we must apply the FLSA regulations of the January 1994 edition of 5 CFR Part 551 in effect during the period of the claim.  Neither the claimant nor the agency asserts the claimant’s work was covered by the professional or executive exemptions as detailed in 5 CFR 551.204 and 5 CFR 551.206 of the 1994 regulations.  Based on careful review of the record, we agree.  However, the agency believes that as a GS-13 Special Agent, the claimant’s work “involves the exercise of significant discretion and independent judgment with regard to the general business operations of the Bureau” and thus is exempt under the administrative exemption criteria.  The claimant disagrees.  Therefore, we solely address the administrative exemption criteria below.

Administrative Exemption Criteria 

The regulation under 5 CFR 551.205 (1994) describes the administrative exemption criteria, in relevant part, as follows: 

An administrative employee is an advisor, assistant, or representative of management, or a specialist in a management or general business function or supporting service who meets all of the following criteria: 

(a) The employee’s primary duty consists of work that:  (1) Significantly affects the formulation or execution of management policies or programs; or (2) Involves general management or business functions or supporting services of substantial importance to the organization serviced; or (3) Involves substantial participation in the executive or administrative functions of a management official.

(b) The employee performs office or other predominantly non-manual work which is: (1) Intellectual and varied in nature; or (2) Of a specialized or technical nature that requires considerable special training, experience, and knowledge. 

(c) The employee must frequently exercise discretion and independent judgment, under only general supervision, in performing the normal day-to-day work.

(d) In addition to the primary duty criterion that applies to all employees, General Schedule employees classified at GS-5 or GS-6 (or the equivalent in other white collar systems) must spend 80 percent or more of the worktime in a representative workweek on administrative functions and work that is an essential part of those functions.

Although no longer in effect, the definitions of terms used in the FLSA exemption criteria as contained in the Attachment to Federal Personnel Manual (FPM) Letter 551-7, dated July 1, 1975, provide useful guidance in applying the administrative exemption criteria in 5 CFR 551.205 discussed above.  The meaning of terms relevant to the criteria follows.

(a) Primary duty.  As a general rule, the primary duty is that which constitutes the major part (over 50%) of the employee’s work. 

(b) Formulation or execution of management policies or programs.  Management policies and programs range from broad national goals that are expressed in statutes or Executive Orders to specific objectives of a small field office.  Employees may actually make policy decisions or participate indirectly, through developing proposals that are acted on by others.  Employees who significantly affect the execution of management policies or programs typically are those whose work involves obtaining compliance with such policies by other individuals or organizations, within or outside of the Federal Government, or making significant determinations in furtherance of the operation of programs and accomplishment of program objectives.  Administrative employees engaged in formulation or execution of management policies or programs typically perform one or more phases of program management (i.e., planning, developing, promoting, coordinating, controlling, or evaluating operating programs of the employing organization or of other organizations subject to regulation or other controls).  Some of these employees are classified in occupations that reflect these functions (e.g., program analyst) but many are classified in subject matter occupations. 

(c) General management, business, or supporting services.  This element brings into the administrative category a wide variety of specialists who provide general management, business, or other supporting services as distinguished from production functions.  Administrative employees in this category provide support to line managers by:  (1) Providing expert advice in specialized subject matter fields, such as that provided by management consultants or systems analysts; (2) Assuming facets of the overall management function, such as safety management, personnel management, or budgeting and financial management; (3) Representing management in such business functions as negotiating and administering contracts, determining acceptability of goods or services, or authorizing payments; or (4) Providing supporting services, such as automated data processing, communications, or procurement and distribution of supplies.  To warrant exemption, each employee’s work must involve substantial discretion on matters of enough importance that the employee’s actions and decisions have a noticeable impact on the effectiveness of the organization advised, represented, or serviced. 

(d) Participation in the functions of a management official.  This element includes those employees (variously identified as secretaries, administrative or executive assistants, aids, etc.) who participate in portions of the managerial or administrative functions of a supervisor whose scope of responsibility precludes personally attending to all aspects of the work.  To support exemption, such assistants must be delegated and exercise substantial authority to act for the supervisor in the absence of specific instructions or procedures.  Typically these employees do not have technical knowledge of the substantive work under the supervisor’s jurisdiction.  Their primary knowledge is of administrative procedures, organizational relationships, and the policies, plans, interests and views of the supervisor.

(e) Work of an intellectual nature.  Work requiring general intellectual abilities, such as perceptiveness, analytical reasoning, perspective and judgment applied to a variety of subject matter fields, or work involving mental processes which involve substantial judgment based on considering, selecting, adapting, and applying principles to numerous variables.  The employee cannot rely on standardized application of established procedures or precedents, but must recognize and evaluate the effect of a continual variety of conditions or requirements in selecting, adapting, or innovating techniques and procedures, interpreting findings, and selecting and recommending the “best” alternative from among a broad range of possible actions. 

(f) Work of a specialized or technical nature.  Work which requires substantial specialized knowledge of a complex subject matter and of the principles, techniques, practices, and procedures associated with that subject matter field. This knowledge characteristically is acquired through considerable on-the-job training and experience in the specialized subject matter field, as distinguished from professional knowledge characteristically acquired through specialized academic education. 

(g) Discretion and independent judgment.  The exercise of discretion and independent judgment involves:  (1) comparing and evaluating possible courses of conduct, and (2) interpreting results or implications, and independently taking action or making a decision after considering the various possibilities.  However, firm commitments or final decisions are not necessary to support exemption.  The “decisions” made as a result of the exercise of independent judgment may consist of recommendations for action rather than the actual taking of action.  The fact that an employee’s decisions are subject to review, and that on occasion the decisions are revised or reversed after review, does not mean that the employee is not exercising discretion and independent judgment of the level required for exemption. 

The FPM letter lists three elements involved in the evaluation of discretion and independent judgment:  (1) The work must involve sufficient variables as to regularly require discretion and judgment in determining the approaches and techniques to be used, and in evaluating results.  This precludes exempting employees who perform work primarily requiring skill and applying standardized techniques or knowledge of established procedures, precedents, or other guidelines which specifically govern the employee’s action.  (2) The employee must have authority to make such considerations during the course of assignment.  This precludes exempting trainees who are in a line of work which requires discretion but who have not been given authority to decide discretionary matters independently.  (3) The decisions made independently must be significant.  Although this term is not so restrictive as to include only the kinds of decisions made by employees who formulate policies or exercise broad commitment authority, it does not extend to the kinds of decisions that affect only the procedural details of the employee’s own work, or to such matters as deciding whether a situation does or does not conform to clearly applicable criteria. 

The claimant’s work as both a Hostage Rescue Team member and Special Agent doing criminal investigations did not meet paragraph (a) of the administrative exemption criteria.  In neither assignment was his primary duty to serve as an advisor, assistant, or representative of agency management, or as a specialist in a management or general business function or supporting service.  As a Hostage Rescue Team member he spent all of his work time either onsite in situations where hostages were held by criminal elements, or training in various hostage scenarios at the Quantico, Virginia, training facility.  When onsite, he conducted surveillance, operated firearms and tactical vehicles, provided supplies to Special Agents and support staff, and transported lawyers and other law enforcement personnel to the hostage site.  As a Special Agent in the Boston Division, he spent most of his time conducting complex investigations on production and distribution of illegal narcotics by members of organized criminal syndicates throughout the Division’s geographic area of jurisdiction. 

The record shows that unlike paragraph (a)(1) of the administrative exemption criteria, in neither of the preceding assignments did his primary duties significantly affect the formulation or execution of management policies or programs.  Although in his role as a SWAT team member in the Boston office he advised local management on the most effective use of the team’s resources, equipment, and capabilities, his activities did not affect the development or execution of the FBI’s overall SWAT team policies and operating procedures.  On the contrary, his role was solely to implement agency published operating policies and procedures.  As a Special Agent he carried out criminal investigative policies, but his work did not affect the development or execution of those policies which were also developed at the agency headquarters level.  As a field office employee performing the line work of the agency, he did not make policy decisions or participate indirectly through developing proposals that were acted on by others.  In addition, unlike administrative employees he did not perform any phases of program management such as planning, controlling, or evaluating operating programs. 

Unlike paragraph (a)(2) of the administrative exemption criteria, the claimant’s primary duties did not involve general management or business functions or supporting services of substantial importance to the organization serviced.  The claimant performed the line law enforcement work of the FBI.  In neither of his assignments was he tasked to provide general management, business, or other supporting services to line managers.  He was not involved in systems analysis and general management support functions, e.g., safety and personnel management, budgeting and financial management.  He did not represent FBI management in negotiating and administering contracts for goods or services, and did not provide support services, e.g., automated data processing, communications, procurement and distribution of supplies. 

In contrast to paragraph (a)(3) of the administrative exemption criteria, the claimant’s assignments did not involve substantial participation in the executive or administrative functions of a management official.  He did not act as a secretary or administrative assistant participating in portions of the managerial or administrative functions of a supervisor, with no requirement for technical knowledge of the substantive work under the supervisor’s jurisdiction.  Unlike such employees, the claimant performed the line work of the FBI requiring technical knowledge of substantive law enforcement and criminal investigative work of the agency and as overseen by the supervisor. 

Like paragraph (b)(1) of the administrative exemption criteria, the claimant performed office non-manual work which was intellectual and varied in nature.  In carrying out and sometimes leading the most complex criminal investigations of illegal narcotic distribution by large elements of organized crime, he applied perceptiveness, analytical reasoning, and judgment based on considering, selecting, adapting, and applying criminal investigative principles to numerous variables.  In doing so, he determined the best approach to the case and investigative techniques needed (e.g., surveillance, wiretapping, installation of GPS equipment on vehicles, use of informants and undercover agents), in order to assess the scope of the illegal operation, identify the major subjects, and pursue arrests and obtain convictions.  While as a law enforcement agent, he was required to abide by specific laws and FBI procedures governing the methods and collection of evidence, issuance of search and arrest warrants, and the tapping of phone lines.  In doing so, he considered the effect of alternative investigative methods, adapting techniques and procedures as appropriate to the nature of the investigation, size and scope of the targeted organization, and the position of subjects within the criminal organization. 

Similar to paragraph (b)(2) of the administrative exemption criteria, as a full performance Special Agent, the claimant’s work was highly specialized and technical in nature, requiring considerable special training, experience, and knowledge.  He possessed and regularly applied specialized knowledge of the complex subject matter field of Federal criminal investigation, including the principles, techniques, practices, and investigative procedures associated with that field.  This knowledge was acquired through regular and extensive formal agency training throughout his career, and considerable on-the-job training and experience at numerous FBI field offices. 

In performing his assignments, particularly criminal investigations in the Boston Division, similar to paragraph (c) of the administrative exemption criteria, the claimant exercised discretion and independent judgment, under only general supervision, in performing his normal day-to-day work.  In doing so, he developed and expanded investigations, comparing and evaluating possible courses of action and necessary investigative techniques to efficiently utilize resources and achieve the goals of investigations.  He interpreted the results gathered from investigative lead information, and made decisions on subsequent investigative steps after considering the various possibilities.  Since many of his cases involved numerous variables in terms of the investigative procedures needed based on the scope and complexity of the illegal operation, he regularly applied discretion and judgment in determining approaches, techniques, and in evaluating results.  As a GS-13 Special Agent and sometimes lead agent, the claimant had full authority to make such determinations during the course of investigations, consulting with his supervisor only on the status of a case or need for additional resources.  His investigative decisions were more significant than just making decisions on procedural details, or deciding whether a situation conformed to clearly applicable criteria.  Although he had to follow specific legal requirements for gathering and admitting evidence, requesting search warrants and arresting suspects, and worked closely with the U.S. Attorney in preparing evidence for prosecution, he independently made decisions on significant matters affecting the development of cases, including identifying the most effective investigative techniques and processes to build a thorough and comprehensive investigation supportable in Federal court. 

The final administrative exemption criterion in paragraph (d) summarized above, regarding GS-5 or GS-6 employees who must spend 80 percent or more of their work time performing administrative functions does not apply to the claimant’s position. 

Although the claimant’s position meets paragraphs (b) and (c) of the administrative exemption criteria, because it does not meet paragraph (a) of the criteria it fails to meet all of the required exemption criteria.  Therefore, we conclude the claimant did not meet the administrative exemption.

Decision on FLSA Coverage

The claimant’s work did not meet the executive, administrative, or professional exemption criteria.  Therefore, his work was nonexempt and covered by the overtime pay provisions of the FLSA.  He is entitled to compensation for all overtime hours worked at the FLSA overtime rate as prescribed for law enforcement officers under section 7(k) of the FLSA who are also paid administratively uncontrollable overtime (AUO).  The claim was received by OPM on January 6, 1995, and the claimant can receive back pay for two years prior to that date.  The agency must follow the compliance requirements on page ii of this decision. 

The claimant must submit evidence showing the amount and extent of overtime that was performed as provided for in 5 CFR 551.706(a).  The agency will have the opportunity to review this evidence using any other sources of information available, including witnesses, before a determination is made as to whether the claimant is entitled to any back pay under the FLSA and any interest as required under 5 CFR part 550, subpart H.  Any petition for attorney’s fees and expenses must be submitted to the agency out of which this claim arose.  Should the claimant be determined to be entitled to back pay which the claimant believes to be incorrectly computed, the claimant may file a new FLSA claim with this office. 

 

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