Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
Operations Support Airfield Tower (OSAT)
Edwards Air Force Base (AFB)
Department of the Air Force (AF)
Edwards AFB, California
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
06/10/2014
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 instructions in this decision, then pay the claimant the amount owed him. If the claimant believes that the agency has incorrectly computed the amount owed him, he may file a new FLSA claim with this office.
Introduction
On August 21, 2012, OPM’s Center for Merit System Audit and Compliance, now Merit System Accountability and Compliance, received a Fair Labor Standards Act (FLSA) claim from Mr. Kenneth E. Baldwin to retroactively correct his exemption status under the FLSA regarding the time he served as Supervisory Air Traffic Control Specialist (Terminal), NH-2152-03, at the 412th Operations Support Squadron (OSS), Operations Support Airfield Tower (OSAT), Edwards Air Force Base (AFB), Department of the Air Force (AF), Edwards AFB, California. We received the agency administrative report (
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 first-level supervisor (Supervisory Air Traffic Control Specialist (Terminal), NH-2152-03), who during all or part of the claim period was acting as Air Traffic Chief Controller because the Military Chief Controller position was vacant.
General Issues
On July 27, 2012, the claimant’s exemption status for his position was changed from exempt to nonexempt. However, the claimant believes the exemption status of his position from December 6, 2009, (when his position was changed from GS to YA, later YC and NH) to July 27, 2012, was miscoded as exempt but should have been nonexempt. The claimant asserts that during the period from January 1, 2010, to July 28, 2012, he worked overtime for which he should have been paid under the FLSA but instead was paid straight time. Therefore, he seeks FLSA overtime back pay and liquidated damages for 413.50 hours of overtime worked. He also believes his agency acted in willful violation of the FLSA because they disregarded his concerns about the miscoding of the exemption status of his position even after it was first brought to the agency’s attention in 2010.
Background
Review of the AAR disclosed contradictory information between what was provided on the claimant’s Notification of Personnel Action, Standard Form 50 (SF-50), effective July 27, 2012, and the agency’s supporting rationale in their administrative report to OPM concerning the FLSA nonexempt status of the position. Specifically, the SF-50 shows the claimant’s position was coded as nonexempt, however the agency’s supporting analysis indicates the position was not covered by the overtime provisions of the FLSA, and was therefore exempt. Thus, on August 14, 2013, we requested clarifying information from the agency regarding the exemption status determination. On December 3, 2013, we received additional information from the agency which we found to be insufficient concerning the position’s exemption status. Nevertheless, because the claimant’s request for back pay for FLSA overtime worked is dependent first on establishing the exemption status of his position, we have limited our evaluation below to determining its exemption status based on the actual duties performed by the claimant. During October 2012, the claimant accepted the position of Air Traffic Control Specialist (Terminal) GS-2152-11, at Nellis AFB and is currently a Supervisory Air Traffic Control Specialist, GS-2152-13, at that installation.
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 which determines the period of possible pay back entitlement. The claimant indicated he did not file a claim with his agency. Therefore, we find the claim was preserved effective August 21, 2012, when it was received by OPM.
The next issue normally examined in establishing the claim period is if it should be extended to three years based on if the agency’s actions met willful violation criteria. Thus the question before us is whether the agency’s delay in recognizing the claimant’s exemption status was incorrect constituted willful violation of the FLSA. “Willful violation” is defined in 5 CFR 551.104 as follows:
Willful violation means a violation in circumstances where the agency knew that its conduct was prohibited by the Act or showed reckless disregard of the requirements of the Act. All of the facts and circumstances surrounding the violation are taken into account in determining whether a violation was willful.
A willful violation requires that either the agency knew that its conduct was prohibited or showed reckless disregard of the requirements of the FLSA. The regulation further instructs that all circumstances surrounding the violation must be taken into account. The agency states that during Fiscal Year 2010, Edwards AFB was deciphering the conversion of positions back to the General Schedule (GS) from the National Security Personnel System (NSPS) and that workload delayed processing any other requests for personnel actions. Agency instructions at the time directed that NSPS positions transitioning to the GS were to retain the same FLSA exemption status they had under the NSPS. Therefore, because the claimant’s NSPS position was converted to the Acquisition Demonstration System (AcqDemo) rather than to the GS, the agency did not review his exemption status during the initial transition process. Subsequently, the agency reviewed his request and designated his position as nonexempt effective July 27, 2012.
There is no question that the agency erred in continuing to designate the claimant’s position as exempt during the claim period. However, error alone does not reach the level of “willful violation” as defined in the regulations. The agency was late in reacting to changes in FLSA exemption criteria due to its involvement in the NSPS to GS transition and changing policies. Therefore, we find that the agency’s actions do not meet the criteria for willful violation as defined in 5 CFR 551.104. Consequently, because we received the claim on August 21, 2012, it is subject to a two-year statute of limitations commencing on August 21, 2010, and any time prior to that date falls outside the claim period.
Liquidated Damages
The claimant seeks liquidated damages. However, the awarding of liquidated damages is not within OPM’s authority. Under 29 U.S.C. § 216, Federal courts have substantial discretion in fashioning remedies for violations of the FLSA, including liquidated damages. Unlike the courts, OPM’s administrative claims process derives its remedial authority from the Back Pay Act, codified as 5 U.S.C. § 5596. Under the Back Pay Act, a claimant can receive back pay and interest for FLSA overtime performed within the claim period. (See also 5 CFR part 550, subpart H). There is no provision in the Back Pay Act for liquidated damages. The regulations regarding the filing of an administrative claim (5 CFR 551.702 (c)) also state in pertinent part: “If a claim for back pay (emphasis added) is established, the claimant will be entitled to pay for a period of up to 2 years (3 years for willful violation) back from the date the claim was received.” Therefore, the FLSA administrative claims process does not provide for the awarding of liquidated damages.
Position Information
Both the claimant and his immediate supervisor have certified to the accuracy of the claimant’s official position description (PD) number C20034, and throughout the claim period the claimant’s duties and responsibilities as recorded in the PD did not change. However, our reviewed disclosed the claimant’s PD incorrectly identifies his work as supervisory in nature and describes duties he did not perform. He did not assign, plan or review work to be accomplished by subordinates and, as discussed later, did not perform any supervisory personnel management activities. Rather, when assigned as “Watch Supervisor (WS),” the claimant was responsible for monitoring and overseeing the overall operation of control tower activities including balancing workload depending on the daily traffic schedule, and supporting training needs. When designated as WS, actual air traffic control duties were performed by Military and/or Civilian Air Traffic Control (ATC) Specialists and Military Apprentice Air Traffic Controllers (military ATC trainees).
The claimant performed senior controller (SC) duties and was also scheduled as a WS on a rotational basis during different periods of flying activity. Except for military ATCs and trainees, other controllers had sufficient ranking as did the claimant to act as WS when assigned. Generally, he rotated between 2 hours of WS duties and 2 hours of SC duties with other WS/SC. However, the crews were interchangeable therefore on some days the claimant would not be assigned to perform WS duties, but on others (i.e., overtime work) he would perform WS duties throughout his entire shift. There were four control positions (e.g., local, ground, flight data, and coordinator) controlled by either a civilian or military ATC specialist with up to two military ATC trainees in each control position. The local controller is in charge of separating and sequencing aircraft in the air to include take-off and landing clearances. The ground controller is in charge of all the vehicle and aircraft traffic on the airport movement area except for the actual runway. The flight data job coordinates information with outside agencies, as well as between controllers. The coordinator's primary job is to help direct the flow of information to the local controller and communicate with other facilities who own the airspace around them. As the WS the claimant ensured the safe and expeditious flow of traffic both in the air and on the ground by overseeing the activities of all four control positions. He could limit or disapprove operations based on existing traffic congestion or complexity, staffing, weather, and override other controllers to fix mistakes. The claimant also reported on military ATC trainee progress and made suggestions on training needs to the responsible training official (e.g. Training NCO) and was a rater on the Enlisted Performance Reports (EPR) for military ATC trainees.
When performing SC duties the claimant directed movement of aircraft in flight and on the ground as displayed on a radar indicator, pilot reported, or observed visually from the control tower. He operated communication and display equipment to include air-to-ground radios, land lines, interphones, radio telephones and intercom equipment to monitor air operations with aircraft and adjacent facility air traffic controllers and ensure the safe and expeditious movement of aircraft. He initiated and issued ATC clearances and instructions to help aircraft operating under Instrument Flight Rules (IFR) and/or Visual Flight Rules (VFR) under normal and/or emergency flight conditions.
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 which asserts the exemption. (d) If there is a reasonable doubt as to whether an employee meets the criteria for exemption, the employee should be designated FLSA nonexempt. (e) The designation of a position’s FLSA status ultimately rests on the duties actually performed by the employee. 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. Therefore, our analysis is limited to the executive and administrative exemptions in effect during the period of the claim.
I. Executive Exemption Criteria
Under the current FLSA regulations, 5 CFR 551.205 (2007) provides:
(a) an executive employee is defined 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 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 recommendation are made or requested; and the frequency with which the employee’s suggestions and recommendations are relied upon. Generally, an executive’s suggestions or 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.
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 does not meet the executive exemption criteria. His primary duties did not constitute management as defined in 5 CFR 551.104 because he did not perform any of the activities listed. Also, the claimant did not customarily and regularly direct the work of two or more employees as defined for purposes of the FLSA. Although when WS he provided “real-time” on-the-job training for the military ATC trainees; ensured their assigned tasks were completed; and reviewed their training evaluations for accuracy and completeness before submitting to the military training NCO, these ATC trainees were members of the military and thus cannot be considered employees for purposes of the FLSA and within the context of 5 CFR 551.205. Under 5
As previously discussed, when assigned as WS he provided oversight of the control tower operations activities performed by a crew of certified military and civilian ATCs. The crews he oversaw were interchangeable so, for example, on some days the crew could consist of all military ATCs or a combination of military and civilian ATCs but not necessarily the same employees. On other occasions, he could be in a SC position overseeing a military trainee, with a military ATC acting as WS. Also, when assigned to serve as WS the claimant rotated between WS and SC duties for two hours at a time with other WS/SC. Therefore, the changing nature and conditions of the work did not allow for any WS to customarily and regularly direct the work of two or more employees for purposes of the FLSA. Moreover, in contrast to the criteria in 5 CFR 551.205(a), the claimant did not have direct supervisory responsibility for any employee on his crew, and thus did not have the authority to hire or fire other employees or make suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees, which were given particular weight.
For the preceding reasons, we conclude the claimant did not meet the executive exemption.
II. Administrative Exemption Criteria
The current regulation under 5 CFR 551.206 (2007), 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 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;
(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.
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 the squadron’s operations, his primary duties did not include the exercise of discretion and independent judgment with respect to matters of significance. While in some cases (if necessary) he could limit or disapprove operations based on existing traffic congestion or complexity, staffing, weather and individual controller training and experience, 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 (Chief Controllers have such authority) or commit his employer in matters having significant financial impact; he carried out short term assignments rather than major ones related to immediate control tower activities during his tour of duty; except in emergency situations, he had no authority to waive or deviate from established policies and procedures without prior approval as all his activities were managed in accordance with Federal Aviation Administration (FAA), U.S. Air Force (USAF), Major Air Command (MAJCOM) 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 training program 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 serving as WS or SC, in contrast to the application of discretion and independent judgment he used knowledge and skill in applying well-established rules, regulations and procedures governing the conduct of air traffic control operations and the separation of aircraft in terminal radar approach and control tower operations. He relied on ATC technical skills acquired through his extensive specialized training and work experience. As previously noted, although he could occasionally deviate from normally applicable ATC directives (i.e., in cases of emergency or safety situations), any decisions he made in such circumstances involved applying alternative ATC actions based on other established rules, e.g., USAF versus FAA procedures.
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 August 21, 2012, and the claimant can receive back pay only for two years prior to that date. We find no indication of willful violation by the agency. The agency must follow the compliance requirements on page ii of this decision.
The claimant provided the number of overtime hours worked in a given period. The agency must reconstruct the claimant’s pay records for the period of the claim and compute back pay for the difference between the FLSA overtime pay owed and any title 5 overtime pay already paid, and 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.