Washington DC

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

---

Damon B. Ford
Classification Appeals and FLSA Claims Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


03/16/2023

---

Date

Finality of decision

As provided in section 551.708 of title 5, Code of Federal Regulations (CFR), this decision is binding on all administrative, certifying, payroll, disbursing, and accounting officials of agencies for which the U.S. Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA). The agency should identify all similarly situated current and, to the extent possible, former employees, and ensure that they are treated in a manner consistent with this decision and inform them in writing of their right to file an FLSA claim with the agency or OPM. There is no right of further administrative appeal. This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708 (address provided in section 551.710). The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.

The agency is to compute the claimant’s overtime pay in accordance with the instructions in this decision, then pay the claimant any amount owed him. If the claimant believes the agency has incorrectly computed the amount owed to 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). The servicing human resources office must submit a compliance report showing the actions taken within 30 days of the compliance action. The report must be submitted to OPM, Merit System Accountability and Compliance, Agency Compliance and Evaluation, Washington, DC, office.

Introduction

On January 7, 2022, OPM received an FLSA claim from the claimant, who was employed at the time as an Information Technology (IT) Specialist, GS-2210-12, with the Disaster Emergency Communications Division (DECD), Response Directorate, Response and Recovery, Federal Emergency Management Agency (FEMA), U.S. Department of Homeland Security (DHS), in Maynard, Massachusetts. He subsequently resigned from his Federal position effective June 3, 2022, after submission of this claim. The claimant requests a review of the FLSA designation for the positions he held while employed with FEMA.

In reaching our FLSA decision, we carefully considered all information furnished by the claimant and agency, including the agency administrative report we received on February 17, 2022, and additional information we later received to clarify the record. To help decide this claim, we conducted a telephone audit with the claimant on August 26, 2022, and a telephone interview with his second-level supervisor on September 19, 2022. 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.

Background and general issues

Effective October 30, 2016, the claimant was initially appointed to a Telecommunications Specialist (Switch), GS-0391-12, position (position description (PD) number B1146) with the Mobile Emergency Response Support (MERS) detachment in Maynard, Massachusetts. On September 13, 2020, he was reassigned to the IT Specialist, GS-2210-12, position (PD number PH7077) with the same organization. When the claimant occupied the positions, the agency at the time had determined the work he performed was exempt (i.e., not covered) from the overtime pay provisions of the FLSA. The claimant believes the FLSA exemption status of the steady-state (permanent) positions he occupied was misclassified for the entire time he was employed with FEMA. He believes he is due backpay for any overtime worked under both steady-state and emergency situations as a nonexempt employee (i.e., covered by the FLSA).

The claimant references a previous OPM FLSA decision (F-2210-12-02) for an IT Specialist, GS-2210-12, position (PD number PH3092) assigned to a different MERS detachment. He asserts he performed work identical to that described by the OPM decision, where we determined the IT Specialist work to be FLSA nonexempt. On December 9, 2021, the claimant requested a FLSA review from FEMA as a result of the referenced OPM FLSA decision. On January 4, 2022, the agency declined his request by stating, “Your official [PD] is not the same as the one that the referenced OPM decision was based on.” In adjudicating this claim, we must make our decision solely by comparing the claimant’s duties and responsibilities to Federal regulations and other guidelines. Since comparison to Federal guidelines is the exclusive method for making exemption decisions, we cannot compare his position to others as a basis for deciding his claim.

Position information

The claimant’s positions were assigned to the Telecommunications Section (Section) of the Maynard-based MERS detachment. The Section is managed by the Telecom Manager, i.e., the claimant’s second-level supervisor. The primary function of the Section is to provide communications support to disaster response operations by delivering voice, data, and video services. They provide satellite, radio, telecommunications, and phone systems support to Federal response teams and State, local, and territorial partners in the disaster environment. In addition, the Section is responsible for Mobile Emergency Response Vehicles (ERV), the self-contained mobile communications vehicles that are deployed to provide mobile office support such as video teleconferencing to locations with no infrastructure. The Telecom Manager states the Section is currently comprised of approximately 19 full-time equivalent positions; of those, 13 are Telecommunications Specialists and six are IT Specialists. The positions are responsible for deploying tactical information networks, mobile platforms, stand-alone systems, and preconfigured and standardized equipment, as well as maintaining fixed facility/in-house systems at the detachment. The Telecom Manager states the Telecommunications Specialists and IT Specialists perform similar duties and responsibilities. Moreover, he states his Section’s GS-12 IT Specialists perform work similar, if not identical, to counterparts assigned to other MERS detachments with the population serviced being the only difference.

For reasons we will discuss later in the decision, our analysis will focus on the claimant’s IT Specialist, GS-2210-12, position (PD number PH7077). The claimant identified a number of inaccuracies with his PD. In its administrative report to OPM, the agency supports the FLSA exemption status of his position by identifying duties described by his official PD. For example, the agency states the claimant “[d]esigns, installs, integrates, manages, monitors, maintains, operates, and troubleshoots all network hardware and software.” However, the claimant and Telecom Manager state he was not responsible for designing or managing network hardware and software. They also state he did not perform other duties identified by his official PD including developing training guidelines and documentation, as well as researching microcomputer and hardware solutions.

As an IT Specialist, the claimant performed routine computer, telecommunications, and system administration technical support duties for his detachment’s in-house systems and ERVs. He established and monitored employee access to the MERS system, instructing new employees regarding accessing and operating computer and telecommunications systems and ensuring users did not install improper applications. He provided technical support for new and existing systems and platforms, operating systems, applications, and desktop configurations. He resolved customer support issues involving integration- and configuration-related issues for in-house systems and ERVs. He provided technical support for the Local Area Network (LAN) and Wide Area Network systems. The claimant installed LAN distribution and cabling systems using routers and network switches, ensuring full integration and operability within the network environment. He made modifications to existing LANs and associated components (e.g., communication lines, switches, routers, and modems). He monitored the operability of network configurations and systems. In addition, he performed standard tests to ensure networks operated within prescribed parameters; applied patches to ensure currency for security compliance; maintained an equipment inventory; and cleaned and maintained the facility warehouse. As lead of the in-house phone system for the approximately 47 employees assigned to his MERS detachment, the claimant added new employees to the phone system, made name changes, and resolved phone system issues. When necessary, he contacted the vendor if unable to resolve issues (e.g., phone static). According to the claimant and Telecom Manager, all work was performed based on established manufacturer specifications and/or agency guidelines.

The Section’s work is overseen by higher-level program offices such as the Office of the Chief Information Officer (OCIO), who has overall responsibility for overseeing the management, operations, and maintenance of FEMA information systems, networks, and IT services and critical IT and communications infrastructure day-to-day and during disasters. The OCIO is also responsible for assessing new technologies and analyzing IT requirements to support employee needs and to ensure compliance with policies, directives, and standards. Specifically, the claimant dealt directly with the OCIO’s Network Operations Center (NOC), who is responsible for enterprise assets including in-house computers, servers, routers, switches, etc. He escalated situations, when necessary, to the NOC’s IT Specialists including router or switch configuration issues, adding ports to the network, requesting specific capabilities to video conferencing or other systems, and making changes to the phone system (e.g, he requested changes to the existing dial-out method, to dial “8” in lieu of “9,” to prevent inadvertent phone calls to 911). In addition, the claimant and Telecom Manager state that deployable assets such as ERVs are managed by a MERS organization in Fredericksburg, Maryland, who is responsible for ensuring vehicles at all MERS detachments are similarly equipped to ensure vehicles are able to communicate with each other.

The agency provided PD number RES239 for a Mobile Emergency Response Support Coordinator (MECO) position, identifying it as the PD and position occupied by the claimant when deployed for emergencies. He and the Telecom Manager explain that because he had not yet completed the training hours required to be certified as a MECO, the claimant never served as a MECO nor performed the full duties expected of MECOs when deployed. He instead performed similar, if not identical, work to that described above as an IT Specialist, however performed at a different pace and environment when deployed. For example, he deployed network systems and mobile communication platforms, provided troubleshooting and maintenance of systems and platforms, maintained inventories, and provided State, local, and territorial partners with emergency communications support.

In reaching our FLSA decision, we have carefully reviewed all information gained through separate interviews with the claimant and the Telecom Manager, as well as documents and information provided by the claimant and his agency.

Evaluation

Period of the claim

Section 551.702 of 5 CFR provides that all FLSA pay claims filed on or after June 30, 1994, are subject to a two-year statute of limitations (three years for willful violation). OPM does not have any authority to disregard the provisions of the FLSA, make exceptions to its provisions, or waive the limitations it imposes. 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 back pay entitlement.

The record shows the claimant’s multiple attempts to file an FLSA claim with FEMA. A MERS employee had provided information to the organization as a result of the July 31, 2018, report titled “FEMA Paid Employees Over the Annual Premium Pay Cap” from the DHS’s Office of Inspector General. The report concluded that FEMA was not compensating employees correctly during disaster deployments. Furthermore, the MERS employee suggested that potentially affected employees contact payroll staff at FEMA’s Office of the Chief Component Human Capital Officer (OCCHCO) to request a review of the FLSA status of their positions as well as any back pay entitlement in overtime as a result of changes to FLSA status. Therefore, the claimant submitted a February 3, 2020, email to payroll staff at OCCHCO (FEMA-HC-Payroll@fema.dhs.gov), stating he was made aware that he “should have received time and a half due to a change in FLSA status while [he was] deployed” and requesting advice on initiating the process for payment. Because he received no response, the claimant explains that he subsequently forwarded his email request to various OCCHCO officials he identified from FEMA’s global address list. As a result, on March 26, 2020, he received a response from the Pay and Compensation Chief of OCCHCO’s Human Resources Operations Division, stating that “the work that [he] performed while on deployment is being reviewed to ensure it meets the criteria for being covered by FLSA.” According to the claimant, he received no further response to that request. Because he provided documentation showing he requested a review on February 3, 2020, from his employing agency as well as back pay for overtime hours performed under the FLSA during his deployments, this date is appropriate for preserving the claim period.

Willful violation

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. Under 5 CFR 551.104, “willful violation” is defined 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.

Clearly not all violations of the FLSA are willful as this term is defined in the regulations. As discussed later in the decision, there is no question the agency erred in the exemption status of the claimant’s positions. However, technical error alone does not reach the level of willful violation as defined in the regulations. A finding of willful violation requires that either the agency knew that its conduct was prohibited or showed reckless disregard of the requirements of the FLSA. The claimant does not allege FEMA committed a willful violation. We also found no evidence the agency recklessly disregarded the requirements of the FLSA. Therefore, we find the agency’s actions do not meet the criteria for willful violation as defined by 5 CFR 551.104. Because the claimant requested a FLSA review from his employing agency on February 3, 2020, it is subject to a two-year statute of limitations commencing on February 3, 2018, and any time prior to that date falls outside the claim period.

Part of the claim is time barred

The regulations governing time limits for filing of an administrative claim (5 CFR 551.702(c)) also state in pertinent part: “If a claim for back pay is established, the claimant will be entitled to pay for a period of up to 2 years (3 years for a willful violation) back from the date the claim was received.”

In his February 3, 2020, FLSA request to FEMA, the claimant states he seeks “approximately 591 hours of overtime since 2016.” During our interview, he estimated the number of overtime hours he performed had increased to approximately 1,200 hours. The record shows he preserved his claim with FEMA on February 3, 2020. Since we find the agency did not willfully violate the FLSA, the claimant would be eligible for back pay two years prior to that date, i.e., February 3, 2018, and his claim for overtime from October 30, 2016, to February 2, 2018, is consequently time barred.

Applicability of the FLSA

To determine whether the claimant is owed overtime pay under the FLSA, we must first determine whether the work performed is exempt or nonexempt from the overtime pay provisions of the FLSA.

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 unless the employing agency correctly determines that the employee clearly meets the requirements of one or more of the exemptions, (b) exemption criteria must be narrowly construed to apply only to those employees who are clearly within the terms and spirit of the exemption, (c) the burden of proof rests with the agency that asserts the exemption, and (d) an employee who clearly meets the criteria for exemption must be designated FLSA exempt. The designation of a position’s FLSA status ultimately rests on the duties actually performed by the employee. There are three exemption categories applied to Federal employees: executive, administrative, and professional (including learned professional).

Telecommunications Specialist, GS-0391-12 (October 30, 2016, to September 13, 2020)

The agency initially determined the claimant’s Telecommunications Specialist, GS-0391-12, position (PD number B1146) was FLSA exempt. Subsequently, the agency had over 2,100 PDs reviewed, including PD number B1146, to confirm the FLSA designation of the positions. As a result of the review, it was determined the claimant’s Telecommunications Specialist position was erroneously determined FLSA exempt.

As a Telecommunications Specialist, the claimant evaluated, integrated, installed, tested, and implemented voice, data, and video telecommunications systems and equipment to support Federal disaster response operations and special events. He provided telecommunications capabilities to include those required on a 24-hour, 7-day basis by MERS operations. Work required resolving a variety of problems involving telecommunications systems and equipment.

In addition, the claimant was assigned to PD number RES238, for an Emergency Management Specialist, IM-0089-01, which describes the work performed by him while deployed to disaster response operations and special events. For MERS personnel like the claimant, the PD describes work such as providing secure and non-secure voice, video, and data operations and logistics support. He was responsible for the readiness, integration, set-up, operations, and tear down of the voice, data, and video telecommunications systems and equipment to support the operations or event.

The agency determined the claimant’s steady-state and deployed work described above are nonexempt from the provisions of the FLSA. The agency determined his work does not meet the executive or professional (including learned professional) criteria, and he does not disagree.  We concur with the agency’s determination and thus have not addressed those criteria separately in the following analysis. We also find the claimant’s work does not meet the administrative exemption criteria as discussed below.

Administrative exemption criteria

The current regulation under 5 CFR 551.206 describes the administrative exemption criteria 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 operations 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 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 described by 5 CFR 551.206. In contrast to the criteria, while he performs office or non-manual work, his duties do not serve as an extension of the agency’s management process or general business operations and do not help with or affect the management of significant matters within the agency. Instead, his work is limited to providing telecommunications technical support to his MERS detachment.

In addition, the claimant’s work does not require exercising discretion and independent judgment with respect to matters of significance as discussed above in the ten factors identified by the regulation. For example, he does not: have authority to formulate, affect, interpret, or implement management policies or operating practices at the MERS detachment; commit the agency regarding matters with significant financial impact; have authority to waive or deviate from established policies and procedures without prior approval from his supervisor or higher-level agency officials; have authority to negotiate and bind his organization on significant matters; and consult with and provide expert advice to management. Furthermore, the claimant is not involved in planning long- or short-term organizational objectives, investigating and resolving matters of significance on behalf of management, or representing the organization in handling complaints, arbitrating disputes, or resolving grievances. Such responsibilities are vested with his supervisors or higher-level MERS and FEMA management officials. Therefore, the claimant’s work does not meet the administrative exemption criteria.

Based on the preceding analysis, the claimant’s steady-state work as a Telecommunications Specialist does not meet the criteria for the administrative exemption.

IT Specialist, GS-2210-12 (September 13, 2020, to June 3, 2022)

The agency determined the claimant’s IT Specialist, GS-2210-12, work does not meet the executive or professional (including learned professional) criteria, and he does not disagree. After careful review, we concur with the agency’s determination and thus have not addressed those criteria separately in the following analysis. In its evaluation of his PD of record, the agency asserts the claimant’s work meets the computer employee exemption criteria (5 CFR 551.210) of the FLSA. However, we disagree with the agency’s determination to exempt his steady-state work based on the computer employee exemption criteria. We also find the claimant’s work does not meet the administrative exemption criteria (5 CFR 551.206) as discussed below.

Computer employees exemption criteria

The current regulation under 5 CFR 551.210 describes the criteria for the exemption of computer employees as follows:

(a) Computer systems analysts, computer programmers, software engineers, or other similarly skilled workers in the computer field are eligible for exemption as professionals under section 13(a)(1) of the Act and under section 13(a)(17) of the Act. Because job titles vary widely and change quickly in the computer industry, job titles are not determinative of the applicability of this exemption.

(b) The exemption in section 13(a)(1) of the Act applies to any computer employee whose annual remuneration exceeds the salary-based non-exemption prescribed in §551.203. The exemption in section 13(a)(17) applies to any computer employee compensated on an hourly basis at a rate of basic pay (as defined in §551.203(b)) not less than $27.63 an hour. In addition, these exemptions apply only to computer employees whose primary duties consist of: (1) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; (2) the design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; (3) the design, documentation, testing, creation or modification of computer programs related to machine operating systems; or (4) a combination of the aforementioned duties, the performance of which requires the same level of skills.

(c) Computer manufacture and repair. The exemption for employees in computer occupations does not include employees engaged in the manufacture or repair of computer hardware and related equipment. Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs (e.g., engineers, drafters and others skilled in computer-aided design software), but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related occupations as identified in paragraph (b) of this section, are also not exempt computer professionals.

(d) Executive and administrative computer employees. Computer employees within the scope of this exemption, as well as those employees not within its scope, may also have executive and administrative duties which qualify the employees for exemption under this subpart. For example, systems analysts and computer programmers generally meet the duties requirements for the administrative exemption if their primary duty includes work such as planning, scheduling, and coordinating activities required to develop systems to solve complex business, scientific or engineering problems of the organization or the organization’s customers. Similarly, a senior or lead computer programmer who manages the work of two or more other programmers in a customarily recognized organizational unit, and whose recommendations regarding the hiring, firing, advancement, promotion, or other change of status of the other programmers are given particular weight, generally meets the duties requirements for the executive exemption. Alternatively, a senior or lead computer programmer who leads a team of other employees assigned to complete a major project that is directly related to the management or general business operations of the employer or the employer’s customers generally meets the duties requirements for the administrative exemption, even if the employee does not have direct supervisory responsibility over the other employees on the team.

The claimant’s work does not meet the criteria for exemption of computer employees described by 5 CFR 551.210.

While the claimant’s annual rate of basic pay substantially exceeds the salary-based non-exemption criteria provided by 5 CFR 551.203, his position fails to meet the additional computer employee exemption criteria described by 5 CFR 551.210(b)(1-4) whose primary duties consist of those tasks listed in that section. Unlike the occupations listed in 5 CFR 551.210(a), the claimant does not perform work of a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in a computer field eligible for exemption as a professional. Instead, he performs routine computer, telecommunications, and system administration technical support work. He responds to standard customer service requests (e.g., phone static, inoperable applications, passwords, and other common troubleshooting computer and telecommunication issues); maintains the day-to-day functionality, operability, and security of existing MERS and ERV systems and networks; provides basic maintenance to MERS and ERV computers and telecommunication equipment such as performing scheduled system upgrades per manufacturer specifications; and performs routine tests and installs off-the-shelf communication lines, switches, routers, and modems.

Unlike the computer employee exemption, the claimant’s work does not meet the primary duty test because he is not responsible for applying systems analysis techniques and procedures to determine hardware, software, or system functional specifications; designing, developing, documenting, analyzing, creating, testing, or modifying computer systems or programs, including prototypes, based on and related to user or system design specifications; or designing, documenting, testing, creating, and modifying computer programs related to machine operating systems.

In contrast to the computer employee exemption, the claimant’s work does not include analyzing MERS, DECD, or FEMA computer systems or networks nor does it include consulting with users to determine hardware, software, or system functional specifications as envisioned by 5 CFR 551.210. Instead, his work involves responding to routine customer service requests such as installation of standard pre-approved agency programs and applications, and access to various computer applications, programs, and networks. Responsibility for conducting analysis of MERS, DECD, or FEMA computer systems and networks and consulting with users to determine hardware, software, or system functional specifications rests with higher-level computer programmers, analysts, engineers, and specialists within FEMA.

Also unlike the computer employee exemption, the claimant’s work does not involve designing, developing, documenting, analyzing, creating, testing, or modifying computer systems or programs, including prototypes, based on and related to user or system design specifications nor does it include designing, documenting, testing, creating, or modifying computer programs related to machine operating systems. Such responsibilities rest with higher-level computer programmers, engineers, and specialists within FEMA.

As provided by 5 CFR 551.210(c), the computer employees exemption does not include employees engaged in the manufacture or repair of computer hardware and related equipment. This does not apply to the claimant’s position as he does not perform such duties.

In contrast to criteria in 5 CFR 551.210(d) covering executive computer employees, we concur with the agency’s determination that the claimant’s work does not meet the executive criteria addressed in 5 CFR 551.205. In addition, because the claimant does not function as a systems analyst or computer programmer performing duties such as planning, scheduling, and coordinating activities required to develop systems to solve complex business, scientific, or engineering problems for MERS, DECD, FEMA, or its customers, as discussed later in this decision he does not meet the administrative exemption criteria in 5 CFR 551.206.

Based on the preceding analysis, the claimant’s steady-state work as an IT Specialist does not meet the criteria for the computer employee exemption.

Administrative exemption criteria

The claimant’s work does not meet the administrative exemption criteria (5 CFR 551.206) as discussed above. In contrast to the criteria, while he performs office or non-manual work, his duties do not serve as an extension of the agency’s management process or general business operations and do not help with or affect the management of significant matters within the agency. Instead, his work is limited to providing computer and telecommunications technical support to his MERS detachment.

The claimant’s work also does not require exercising discretion and independent judgment with respect to matters of significance in the ten factors identified by the regulation. For example, he does not: have authority to formulate, affect, interpret, or implement management policies or operating practices at the MERS detachment; commit the agency regarding matters with significant financial impact; have authority to waive or deviate from established policies and procedures without prior approval from his supervisor or higher-level agency officials; have authority to negotiate and bind his organization on significant matters; and consult with and provide expert advice to management. Furthermore, the claimant is not involved in planning long- or short-term organizational objectives, investigating and resolving matters of significance on behalf of management, or representing the organization in handling complaints, arbitrating disputes, or resolving grievances. Such responsibilities are vested with his supervisors or higher-level MERS and FEMA management officials.

Therefore, the claimant’s steady-state work as an IT Specialist does not meet the administrative exemption criteria.

Performing different work or duties for a temporary period of time

Criteria for the exemption of work performed by employees under emergency situations, as described by 5 CFR 551.211(f)(1), state in relevant part:

(f) Emergency situation. Nothwithstanding any other provision of this section, and regardless of an employee’s grade or equivalent level, the agency may determine that an emergency situation exists that directly threatens human life or safety, serious damage to property, or serious disruption to the operations of an activity, and there is no recourse other than to assign qualified employees to temporarily perform work or duties in connection with the emergency. In such a designated emergency:

(1) Nonexempt employee. A nonexempt employee remains nonexempt whether the employee performs nonexempt work or exempt work during the emergency; and

As previously discussed, we determined the steady-state work performed by the claimant as a Telecommunications Specialist and IT Specialist during the claim period is nonexempt. Therefore, in accordance with 5 CFR 551.211(f)(1), all work performed by him during the claim period is nonexempt and covered by overtime provisions of the FLSA.

Decision

The positions occupied by the claimant do not meet the computer employee, administrative, executive, professional, or learned professional exemption criteria. However, the period of the claim from October 30, 2016, to February 2, 2018, when the claimant occupied the Telecommunications Specialist, GS-0391-12, position is time barred. During the period of the claim from February 3, 2018, to June 3, 2022, when he occupied the Telecommunications Specialist and IT Specialist, GS-2210-12, positions, the work he performed was FLSA nonexempt (i.e., covered by FLSA overtime provisions) and he is entitled to compensation for all overtime hours worked at the FLSA overtime rate for the period of the claim he was improperly designated as FLSA exempt. 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. If the claimant believes the agency incorrectly computed the amount owed, he may file a new FLSA claim with this office.

Back to Top