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 Claim
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


07/08/2016

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Date

Introduction

On September 11, 2014, OPM’s Merit System Accountability and Compliance received a Fair Labor Standards Act (FLSA) claim from Mr. Donald M. Norris requesting a review of his exemption status under the FLSA when he served as a Supervisory Border Patrol Agent, GS-1896-13, (organizationally titled “Field Operations Supervisor” (FOS)) from October 4, 2012, to September 7, 2014.  During that period he supervised the Motorcycle/Sensor Units, at the Casa Grande Station, Tucson Sector, U.S. Border Patrol, U.S. Customs and Border Protection (CBP), Department of Homeland Security, in Casa Grande, Arizona.  We received the agency administrative report (AAR) via email on December 10, 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 and the agency, including information obtained from separate telephone interviews with the claimant and his former supervisor. 

General Issues

As a result of a new standardized field organizational structure implemented by the U.S. Border Patrol in 2012, the claimant’s FOS position, designated by the agency as exempt (not covered) by the overtime provisions of the FLSA, was replaced by a newly created position organizationally titled "Watch Commander" (GS-1896-14) and effective at the Casa Grande Station on October 4, 2012.  Employees selected for the new position (not the claimant) assumed the primary duties of the FOS, but the claimant’s position was not eliminated or converted.  However, he states his duties significantly changed and were no longer consistent with his position description (PD) of record (# S1027a).  Although he was reassigned as a second level supervisor over the Motorcycle/Sensor Units, his supervisory and administrative duties substantially decreased.  Therefore, he believes his duties during the period noted above should be considered nonexempt (covered) by the overtime provisions of the FLSA and requests back pay and interest for work performed when he was entitled to FLSA pay.  Effective September 7, 2014, the claimant was reassigned to an FLSA nonexempt position classified as Supervisory Border Patrol Agent, GS-1896-13 (PD # S1843A), as the first-line supervisor of the Motorcycle/Sensor Units. 

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.  A claimant must submit a written claim to either the employing agency or to OPM in order to preserve the claim period.  The date the agency or OPM receives the claim is the date which determines the period of possible pay back entitlement.  Since the claimant has provided no evidence he preserved his claim with his agency prior to filing with OPM, we find the claim was preserved effective September 11, 2014, when it was received by OPM.  The claimant identified the period of his claim to be October 4, 2012, through September 7, 2014.  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

The claimant believes the standard agency PD (# S1027a) to which he was assigned during the claim period is inaccurate because, after the agency’s field restructuring, he no longer performed several duties.  For example, he states he no longer supervised multiple subordinate first-line supervisors, did not report to an Assistant Patrol Agent-in-Charge (APAIC) but rather to an acting Special Operations Supervisor (SOS), and had no significant responsibilities in dealing with other units or organizations.  He also noted he no longer reviewed criminal cases for accuracy or managed the preparation of criminal complaints, the tracking of suspects and evidence, or coordinated the assignments of agents to testify in court.  The agency provided a “Declaration” from the Deputy Patrol Agent-in-Charge (DPAIC) of the Casa Grande Station briefly describing the restructuring of the agency’s field organization, and explaining how it affected the claimant’s assignments.  The agency indicates that after the restructuring the claimant no longer supervised approximately seventy Border Patrol Agents (BPAs) and ten subordinate supervisors, and became the supervisor solely over the Motorcycle/Sensor Unit programs with only one subordinate supervisor.  In a phone interview, the claimant’s former supervisor also stated that after the field restructuring of the Casa Grande Station, the claimant’s PD was inaccurate.  He noted the claimant no longer supervised a large agency staff with multiple subordinate supervisors; did not report to the APAIC but rather to an acting SOS; no longer reviewed criminal cases or tracked suspects and evidence; and was not involved in providing guidance and instruction to agents in community relations. 

Our fact-finding also confirmed the claimant’s PD (# S1027a) during the claim period was inaccurate.  Not only did the claimant’s assignments change as described above, contrary to Factor 3, Supervisory and Managerial Authority Exercised, of the PD, he did not develop performance standards for immediate subordinate supervisors, nor ensure reasonable equity of performance standards and rating techniques developed by subordinates for their non-supervisory personnel.  The record shows that all performance standards and rating techniques for both supervisory and non-supervisory BPAs are standardized by the agency nationwide. 

During the claim period, the claimant served as a second level supervisor of the Motorcycle/Sensor Units at the Casa Grande Station.  Through a first-line supervisor (GS-1896-13), he indirectly supervised a total non-supervisory staff of seventeen full performance level BPAs, GS-1896-12, with thirteen assigned to the Motorcycle Unit and four to the Sensor Unit.  Employees assigned to the Motorcycle Unit patrol a wide geographic desert area on motorcycles in search of illegal aliens, drug smugglers, and terrorists attempting to enter the United States (U.S.) on foot or by vehicle.  The Sensor Unit places and monitors ground and vehicle sensors (including cameras) and electronic signal repeater stations in the desert to detect pedestrian and vehicle traffic over known areas where illegal aliens and drug smugglers attempt to enter the U.S. 

The claimant directed subordinate staff in deploying personnel and equipment to detect and prevent the entry of illegal aliens, narcotics, illicit contraband, terrorists, and weapons of terrorism from entering the U.S.  He managed and coordinated assignments on a daily, weekly, monthly, and quarterly basis, setting and adjusting priorities and preparing work schedules.  He assigned work based on organizational priorities and difficulty of assignments; planned work to be accomplished, setting and adjusting short-term priorities, and reduced barriers to production by promoting team building.  He also exercised certain supervisory human resources management authorities as discussed later in this decision. 

Evaluation of FLSA Coverage

Sections 551.201 and 551.202 of title 5 CFR require an employing agency to designate an employee FLSA exempt only when the agency correctly determines that the employee meets one or more of the exemption criteria.  In all exemption determinations, the agency must observe the following principles:  (a) Each employee is presumed to be FLSA nonexempt. (b) Exemption criteria must be narrowly construed to apply only to those employees who are clearly within the terms and spirit of the exemption. (c) The burden of proof rests with the agency 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.  

Neither the claimant nor the agency asserts the claimant’s work was covered by the professional exemption as detailed in 5 CFR 551.207 and, based on careful review of the record, we agree.  However, the agency believes the claimant’s work meets both the executive exemption criteria in 5 CFR 551.205, and the administrative exemption criteria in 551.206, but the claimant disagrees.  Therefore, we address both exemption criteria below.

I.  Executive Exemption Criteria

Under the current FLSA regulations, 5 CFR 551.205  provides:

(a) An executive employee is an employee whose primary duty is management (as defined in § 551.104) of a Federal agency or any subdivision thereof (including the lowest recognized organizational 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. 

(b) Particular weight.  Criteria to determine whether an employee’s suggestions and recommendations are given particular weight by higher-level management include, but are not limited to:  whether it is part of the employee’s job duties to make such suggestions and recommendations; the frequency with which such suggestions and recommendations are made or requested; and the frequency with which the employee’s suggestions and recommendations are relied upon.  Generally, an executive’s suggestions and recommendations must pertain to employees whom the executive customarily and regularly directs.  Particular weight does not include consideration of an occasional suggestion with regard to the change in status of a co-worker.  An employee’s suggestions and recommendations may still be deemed to have particular weight even if a higher level manager’s recommendation has more importance and even if the employee does not have authority to make the ultimate decision as to the employee’s change in status.

OPM’s administration of the FLSA must comply with the terms of the FLSA but the law does not require OPM’s regulations to mirror the Department of Labor’s (DOL) FLSA regulations.  OPM’s administration of the FLSA must be consistent with DOL’s administration of the FLSA only to the extent practicable and only to the extent that this consistency is required to maintain compliance with the terms of the FLSA. 

Case law indicates that due to the peculiar nature of the statutory framework surrounding Federal employment, it is reasonable for OPM’s regulations to vary from DOL standards. See, e.g., Billings v. United States, 322 F.3d 1328 (Fed. Cir. 2003).  As such, the law does not require OPM’s regulations be perfectly consistent with DOL’s FLSA regulations.  OPM regulations are controlling for covered Federal employees as Congress gave OPM independent authority to regulate FLSA for covered Federal employees.  While there is legislative history indicating that OPM should administer the FLSA “in such a manner as to assure consistency” with DOL regulations and policies, there is no such requirement in the FLSA itself.  While OPM attempts to be consistent with DOL’s FLSA regulations, generally OPM utilizes FLSA guidance from DOL for instructive purposes only.[1]

Similar to OPM’s FLSA regulations, the DOL FLSA regulations also reference the term “change of status” within the context of their executive exemption criteria.  29 CFR 541.100(a)(4); see subpart B of part 541 of title 29, CFR.  Although the claimant is not subject to the DOL’s FLSA regulations, DOL’s interpretation as addressed in the supplementary information to its 2004 final rule concerning FLSA exemption criteria (69 Federal Regulation 22131) is instructive in understanding the meaning of the term “change of status.”  DOL has interpreted the phrase as including a significant changes in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.  Similarly, we interpret the phrase “change of status or other employment” in 5 CFR 551.205(a)(2) as encompassing the same activities. 

As defined in 5 CFR 551.104, management means performing activities such as interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or financial records for use in supervision or control; appraising employees’ productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment, or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures. 

The claimant’s work meets certain aspects of the executive exemption criteria.  As required by the criteria in 5 CFR 551.205(a), he served as an executive employee whose primary duty, was management of two established organizational units (i.e., Motorcycle/Sensor Units) with a total staff of eighteen employees, including one subordinate supervisor.  He performed most of the management activities defined in 5 CFR 551.104.  In performing his management duties, the claimant either directly or with his first-line subordinate supervisor trained detailed GS-12 agents in desert patrol motorcycle operations or sensor equipment placement, monitoring, and maintenance.  He established employees’ hours of work for the units’ two shifts, identified employee training needs, and approved overtime, travel, and leave; with the first-line supervisor regularly planned, prioritized, and directed the agents’ motorcycle patrolling and sensor work in the field and made decisions on work problems presented by the subordinate supervisor; and maintained work production and pay and leave records for use in supervision, including reconciling payroll data to actual hours worked.  The claimant appraised performance of the first-line supervisor including assessing productivity and efficiency, and recommended awards for that employee.  He handled minor employee complaints, grievances, and disciplinary actions issuing verbal warnings and reprimands; determined work techniques including motorcycle patrol “start” points and patrol map grid areas (zones) as well as field placement of sensors, cameras, and electronic signal repeaters.  Depending on their experience, with the first-line supervisor the claimant distributed work among GS-12 employees; determined and recommended to the SOS the best type of sensor equipment and motorcycles to be purchased and stocked to fulfill the mission; controlled and monitored the use and distribution of technical supplies; and provided for the safety and security of employees including protective gear and firearms.  He ensured that sensitive agency property was fully secured; planned for and requested purchase of equipment through the station’s budget process; and implemented legal compliance measures such as requesting permission from tribal authorities for placement of sensors on tribal reservation lands. 

As required by the criteria in 5 CFR 551.205(a)(1), the claimant customarily and regularly directed the work of a total of eighteen employees (i.e., “two or more”) in recognized organizational units performing a continuing function within the Casa Grande Station.  Although the claimant asserts he did not meet this element because he directly supervised only one employee (the subordinate supervisor), 5 CFR 551.205(a)(1) does not restrict the number of employees directed to those supervised “directly,” i.e., in the capacity of first-line supervisor.

However, the claimant’s supervisory human resources management authorities were limited in nature such that the full intent of the criteria in 5 CFR 551.205(a)(2) was not met.  He was not delegated authority to hire (CBP hiring is done centrally) or fire employees.  All the claimant’s subordinate positions were regularly filled by competitive assignment (detail) of full performance (GS-12) agents or, for his first-line subordinate supervisory position, current GS-13 supervisory agents through rotational details ranging from six months to one year to provide training and experience.  As established in the station’s local collective bargaining agreement "Detail Management Policy," the station had two methods to fill the units’ non-supervisory GS-12 agent positions:  (1) candidates could be selected with no interviews required from a list of eligible applicants by the station’s Detail Management Team (DMT) without the claimant’s participation; or (2) when the DMT determined that interviews were needed to gather more information on particular candidates, the DMT could refer names to the claimant for interview.  With a union official present, the claimant and usually his first-line supervisor could then jointly interview the candidates and complete separate ranking sheets.  Through a matrix process, the two supervisors were expected to reconcile their rankings and refer the top applicants to the PAIC, who typically  accepted their recommendations.  To fill the GS-13 supervisory agent detail, the claimant and the SOS jointly interviewed candidates and recommended selection of the top applicants to the PAIC.  This process occurred without the involvement of the DMT because such positions were not covered by the local collective bargaining agreement.  However, during the claim period all rotational GS-12 agent selections were made by the DMT without the claimant’s involvement. 

The authority to fire employees rested with top station/sector management officials.  Upon request of higher level management, the claimant was authorized to conduct investigations of serious employee infractions in his unit, including those offenses that could lead to suspension or removal.  However, in such instances his involvement was limited to gathering factual information and providing it to higher level management officials.  While his investigative findings were expected to be seriously considered by management in determining an appropriate disciplinary action, he made no recommendation as to the type of disciplinary action warranted.  Regarding promotions, there was no opportunity to promote because all agents were regularly detailed at the full performance GS-12 level, and all agent career ladder promotions are “automatic” (handled at the Indianapolis Processing Center) with no input from the supervisor.

Therefore, the claimant did not meet the executive exemption during the claim period in that he did not exercise the aforementioned authorities listed under 5 CFR 551.205(a)(2), or provide suggestions given particular weight by higher-level management within the meaning of 5 CFR 551.205(b) regarding the exercise of those authorities, for two or more employees during the claim period. 

II.  Administrative Exemption Criteria

The current regulation under 5 CFR 551.206 (2015) describes the administrative exemption criteria, in relevant part, as follows: 

An administrative employee is an employee whose primary duty is the performance of office or non-manual work directly related to the management or general business operations, as distinguished from production functions, of the employer or the employer’s customers and whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. 

(a) In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered.  The term “matters of significance” refers to the level of importance or consequence of the work performed. 

(b) The phrase discretion and independent judgment must be applied in light of all the facts involved in the particular employment situation in which the question arises.  Factors to consider when determining whether an employee exercises discretion and independent judgment with respect to matters of significance include, but are not limited to, whether the employee:

(1)   Has authority to formulate, affect, interpret, or implement management policies or operating practices;

(2)   Carries out major assignments in conducting the operation of the organization;

(3)   Performs work that affects the organization’s operations to a substantial degree, even if the employee’s assignments are related to operation of a particular segment of the organization;

(4)   Has authority to commit the employer in matters that have significant financial impact;

(5)   Has authority to waive or deviate from established policies and procedures without prior approval;

(6)   Has authority to negotiate and bind the organization on significant matters;

(7)   Provides consultation or expert advice to management;

(8)   Is involved in planning long- or short-term organizational objectives;

(9)   Investigates and resolves matters of significance on behalf of management; and

(10) Represents the organization in handling complaints, arbitrating disputes, or resolving 

       grievances. 

(c)  The exercise of discretion and independent judgment implies that the employee has authority to make an independent choice, free from immediate direction or supervision.  However, an employee can exercise discretion and independent judgment even if the employee’s decisions or recommendations are reviewed at a higher level.  Thus, the term discretion and independent judgment does not require that decisions made by an employee have a finality that goes with unlimited authority and a complete absence of review.  The decisions made as a result of the exercise of discretion and independent judgment may consist of recommendations for action rather than the actual taking of action.  The fact that an employee’s decision may be subject to review and that upon occasion the decisions are revised or reversed after review does not mean that the employee is not exercising discretion and independent judgment. 

(d)  An organization’s workload may make it necessary to employ a number of employees to perform the same or similar work.  The fact that many employees perform identical work or work of the same relative importance does not mean that the work of each such employee does not involve the exercise of discretion and independent judgment with respect to matters of significance. 

(e)  The exercise of discretion and independent judgment must be more than the use of skill in applying well-established techniques, procedures, or specific standards described in manuals or other sources. 

The claimant’s work does not meet the administrative exemption criteria.  Although during the claim period he performed office or non-manual work related to managing the operations of the Motorcycle/Sensor Units, his primary duties did not include the exercise of discretion and independent judgment with respect to matters of significance.  While he could limit, alter, or redirect motorcycle patrol operations or sensor placement based on intelligence information on routes of illegal entry and traffic patterns, or skill level and experience of cyclists to operate in a variety of terrain and weather conditions, those decisions did not meet the discretion and independent judgment threshold with respect to matters of significance.  For example, he had no authority to formulate, affect, interpret, or implement management policies at his level (the PAIC retained such authority) or commit his employer in matters having significant financial impact; he carried out short term assignments rather than major ones related to daily motorcycle and sensor operations; had no authority to waive or deviate from established policies and procedures without prior approval of the SOS or DPAIC as all his activities were managed and carried out in accordance with specific agency and local operating directives; and he was not authorized to negotiate and bind his organization on significant matters.  Although given his technical expertise, management may have asked for the claimant’s input regarding the motorcycle training and certification program, purchasing particular equipment, or review of operating instructions, overall responsibility for providing expert advice to agency management officials was the responsibility of higher level officials.  Unlike the exemption criteria, the claimant was not involved in planning long-or short term organizational objectives; did not investigate and resolve matters of significance on behalf of management; and was not authorized to represent the organization in handling complaints, arbitration disputes, or resolving grievances. 

While the claimant worked independently, free of immediate supervision and direction when running his units, in contrast to the application of discretion and independent judgment he used knowledge and skill in applying well-established rules, regulations and procedures (e.g., Casa Grande Station Motorcycle SOP and a variety of equipment manuals) governing the conduct of off-road motorcycle patrol operations, and the strategic placement of sensors and electronic repeaters.  While he relied on technical skills acquired through his extensive specialized training and work experience, as previously noted he could not deviate from normally applicable agency directives.  In those cases where deviations were necessary, he was required to consult with either the SOS or DPAIC before taking any action. 

Thus, we conclude the claimant did not meet the administrative exemption.

Decision on FLSA Coverage

The claimant’s work does not meet the executive, administrative, or professional exemption criteria.  Therefore, his work is nonexempt and covered by the overtime pay provisions of the FLSA.  He is entitled to compensation for all overtime hours worked at the FLSA overtime rate.  The claim was received by OPM on September 11, 2014, 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 agency must reconstruct the claimant’s pay records for the period of the claim and compute back pay for FLSA overtime pay owed and any interest on the back pay, as required under 5 CFR 550.805 and 550.806, respectively.  If the claimant believes the agency incorrectly computed the amount, he may file a new FLSA claim with this office. 

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