# Presentation: 709610

## STRATEGIC COMPENSATION CONFERENCEFLSA/POSITION CLASSIFICATION APPEALS UPDATE

- Melissa Drummond
- August 2002

## Agenda

- Classification Appeals Program
- Digests 27 and 28
- Fair Labor Standards Act Program
- Recent Issues and Decisions
- Compensation and Leave
- Recent OPM Claim Decisions

## Adjudication Statistics

- Classification Appeals - 60%
- Between 125 - 150
- Pay Claims - 30%
- Between 60 - 75
- FLSA Claims - 10%
- Between 10 - 25

## Important Aspects of Classification Appeals Process

- Differs based on Nature
-     of Position
- PD Accuracy Issues
- Agency Administrative Report
- Factfinding
- Application of OPM standards
- OPM Decision is final and binding
- Applies to similarly situated positions

## Appeal DecisionsFY00 - FY02

## Appeal OutcomesFY00 - FY02

## Outcome of AppealsDecided by Division

## Recent Digest Articles

- Digests 27 and 28
- ‘Back to the Basics’
- Links to Decisions
- Website

## IT WORK - #27-01, #28-01

- New IT JFS and special salary rate
- GS-335-10 wanting to be GS-2210-11
- GS-335-7s wanting to be GS-2210-07 or 09
- Support of small LANs and integration with other networks and mainframes
- Work on home pages and Intranet
- Provided hardware support to IT specialists and used knowledge of hardware, peripheral devices, memory storage, etc.
- No in-depth knowledge of IT principles to plan/analyze, design, test, configure, etc.

## GS-644 FES STANDARD - #28-03

- F2 - Overall priorities and objectives were established by a higher-level position
- F3 - To ensure the integrity of the quality control, the appellants adapted existing tests instead of developing them and were not allowed the ability to substantially deviate from established practice
- F4/5 - Work did not involve systemic problems or those that required major testing or modification of quality assurance programs for other laboratories

## GEG FOR POSITIONS OF MGRS OF OPERATING ED. PROGRAMS - #28-04, #28-05

- Factor 1 – Student Load
- Agency was inconsistent with tracking courses
- OPM took an average number from two categories
- Factor 2 – Course Range and Variety
- What is a “creditable course”? - It must meet the general intent/objectives of a college-level course
- OPM disagreed with the agency, which changed the factor level designation

## PREFIXES - #27-04, #27-06, #27-07

- 018, Safety and Occupational Health
- Grade level was based on supervisory duties,
-      requiring “supervisory” prefix
- GSLGEG
- Did not meet 25% threshold due to subordinates’ independence, no “lead” prefix
- Led technical projects assigned to ad hoc teams; did not have both technical ***and*** administrative “lead” responsibilities on a continuing basis

## GSSG - #28-06, #28-07 

- Deputy positions
- A deputy must fully share in the authorities and responsibilities of the Chief
- Crediting for subordinate supervisors
- Factor 3-3b can only be credited to those who direct two or more subordinate supervisors, team leaders, or comparable personnel
- Term and temporary work
- Guide covers temporary employees,
-     unpaid volunteers, student trainees, etc.

## FWS VS. GS - #27-08, #28-08

- 4805, Medical Equipment Repairer
- Repair/troubleshooting of medical equipment did not require knowledge of an electronics technician
- 2604, Electronic Mechanic
- Appellant used Internet operating systems to analyze, diagnose, test, configure, and verify functionality of networking systems
- Work required trade knowledge of electronics principles to determine whether problems were hardware- or software-based and to make repairs

## OPM GUIDANCE - #27-05, #28-02

- Factor 5 in GS-460 Forestry Standard
- Addressed breadth and impact of position
- Level 1-9 in GS-200 JFS
- How important is the “and” in the criteria?
- Conceptual expert generating new concepts _*OR*_
- Functional Program expert who:
- conceives/plans broad or critical large-scale agency programs,
- serves as consultant to top agency officials, _*AND*_
- advises other HR experts throughout the agency.

## Proposed Regulatory Changes for 5 CFR 511

- Require agencies to establish a classification appeal program.
- Remove the option of having appellants appeal to OPM through their agencies.
- Remove the option of filing a reconsideration request with the OPM Director.

- GS

## Proposed Regulatory Changes for 5 CFR 532

- Add subpart on how to comply with job grading decisions, job grading appeal decisions, and OPM job grading certificates.
- Remove the option of filing a reconsideration request with the OPM Director.

- FWS

## FLSA Information

- Federal Sector Administration - OPM
- FLSA Program Office
- Coverage and Claims
- Pay and Leave Administration Division
- Private Sector - Department of Labor

## Hot Topics

- Mirror DoL regulations
- Bates v. U.S., January 15, 2002
- Issue of Back Pay Interest
- U.S. vs. Rowdy Adams, February 13, 2001
- Temporary Work – Schaller vs. U.S.
- Reconsideration of FLSA Decisions -
- 		5 CFR 551.708
- Centralization of FLSA Claims function

## Important FLSA Moments

**1938** - The Act is passed by Congress
**1974** - Becomes applicable to public employees
**1990**** - **Carter vs. Gibbs
**1994** - Statute of Limitations Changes
- 6 to 2 years (3 years for willful violation)

## Important FLSA Guidance

- 29 U.S.C.
- 5 CFR 551
- Definitions
- General Principles
- Exemption Criteria
- Factsheets on Claims and Coverage
- Work Aid
- OPM FLSA Claim Decisions

## Important FLSA Terminology -5 CFR 551.104

**Exemption Status** - an employee’s designation by the agency
**Exempt** - _not covered_ by
-     minimum wage/overtime provisions
**Nonexempt** - _covered_ by
-     minimum wage/overtime provisions
**Primary duty** - duty that constitutes
-     the major part of an employee’s work

## General Principles of Exemption - 5 CFR 551.202

- Each employee is presumed
-    to be FLSA **non-exempt.**
- If there is reasonable doubt
-     on meeting exemption criteria,
-     the employee should be FLSA **non-exempt.**
- Burden of proof rests with the agency.
- Three Exemption Categories

## Summary of General Exemption Principles - 5 CFR 551.202

- An employee who meets the exemption criteria must be designated FLSA exempt.
- Failure to meet exemption criteria under one category does not preclude exemption from under another category.
- FLSA designation rests on the
-     duties actually being performed
-     by the employee.

## Making Exemption Determinations

- Preparation
- Gather Materials and confirm PD accuracy
- Factfinding
- Analysis
- Eliminate primary duty tests
- Analyze the pd and evaluation
-    statement with regulatory guidance
- Conclusion

## Executive Exemption Criteria

- Is the primary duty
-    test met?
- Makes personnel changes
-     and has authority to
-     recommend personnel
-     changes
- 80% test for certain employees

- 5 CFR 551.205

## Administrative Exemption Criteria

- Is the primary duty test met?
- Is the nonmanual work test met?
- Intellectual OR specialized
-     training/experience
- Is discretion/independent
-     judgment used?
- 80% test for GS-5 or GS-6 employees

- 5 CFR 551.206

## Professional Exemption Criteria

- Is the primary duty test met?
- Does the work require
-    creative/analytical thought
-     processes?
- Is discretion/independent
-     judgment used?
- 80% test for GS-5 or
-     GS-6 employees

- 5 CFR 551.207

## Temporary Work -5 CFR 551.208

- Does the period of temporary work exceed 30 _consecutive_ calendar days?
- Does the work not support the current FLSA designation?
- Emergency Work - 5 CFR 551.208(d)
- Affects exempt employees if
-    nonexempt duties are performed
-    for more than 20% of the workweek

## Recent OPM Decisions

- Analysis of Three Criteria – F-0802-11-04
- Also discusses the issue of back pay and references the FPM Manual
- Willful Violation – F-0856-11-01
- Not simply an error
- Did agency know that its conduct was prohibited by the Act or did it show reckless disregard of the requirements of the Act?

## Recent OPM Decisions (con’t)

- Executive Exemption – F-0081-09-01
- Exempt Supervisory Firefighter
- Percentage of time on duties
- Professional Exemption – F-0334-12-01
- Exempt - First Decision in IT Specialist Work

## FLSA -Jurisdictional Issues

- OGC Advisory
- Impact of MOA on *Carter v. Gibbs*
- Rowdy Adams v. U.S., 96-93C,
-     September 30, 1999
- Supervisory Border Patrol Agent
- Number of Employees Supervised
- Primary Duty Test
- Recognized Organizational Unit

## Applying Exemption Criteria (2)

*Berg v. U.S.*, 95-748C, May 1, 2001
- Production vs. Supporting Service
- Adequacy of PD/Written Record
- Impact of Step-by-Step Instructions
- Berg’s Unaddressed Issues
- Professional Exemption Criteria
- Pay Category of Work

## Other Issues

- Agency Agreements/Practices
- Determination by Grade Level
- Interrelationship of FLSA and Classification
- Non-exemption
-     Presumption

## Are Your FLSA Designations Correct?

- Cabinet-Level Agencies
- 1,527 GS-04 Exempt Employees
- 149 Nonexempt GS Supervisors
- 598 Nonexempt GS-13s
- Independent Agencies
- 14 Nonexempt GS Supervisors
- 545 Nonexempt GS-13s

## FLSA Claims

- Federal Employees file with OPM
- Preserve the Claim Period
- Burden of Proof is on the Claimant
- Exemption Status
- Burden of Proof is on
-     the Agency
- Impact of *Carter v. Gibbs*
-     Decision

## Proposed Regulatory Changes for 5 CFR 551

- Address FLSA jurisdiction for
-      DC Government employees.
- Clarify our role in administering the FLSA in comparison to Department of Labor.
- Stipulate that the 30-day test must be 30 consecutive calendar days.
- Establish a 45 calendar day time limit for filing reconsideration requests.

## Pay Claims - 5 CFR 178

- Similarities with FLSA
- Must follow NGPs if
-     covered by an agreement
- Differences with FLSA Claims
- Agency denial is required
- 6-year Statute of Limitations
- Burden of Proof is on the claimant
- Decision is based upon the written record

## Findings of Pay Claims

- Carter v. Gibbs
- Barring Act - 31 U.S.C. 3702(b)(1)
- Majority find in favor of the agency
- Clear and convincing evidence
-     before overturning an agency
- OPM decision is final
- Claimants may pursue
-     further in court

## Authority for Adjudication of Pay Claims - PL 104-316, 110 Stat. 3826

- Legislative Branch Appropriations Act of 1996
- Uniformed service members’
-     claims to DOD
- Travel, transportation, and
-     relocation expenses to GSA
- Compensation and Leave claims
-     for civilian employees to OPM

## Types of Pay Claims - Compensation

- Pay Retention - #01-0026
- Misinformation does not allow granting of claim: *{60 Comp. Gen. 417 (1981)}*
- Retroactive Promotion (error) - #01-0020
- Require approval by appropriate authority:
*	**{B-190408, December 21, 1977} *
- Performance of Higher Duties - #01-0012
- Requires an official personnel action:
- 	*{61 Comp. Gen. 408 (1982)}*

**Notes:**
Environmental

Hazard duty pay

## Types of Pay Claims - Leave 

- Incorrect SCD affecting accrual - #01-0017
- Employees must review their LES’
*	**{B-189353, August 10, 1977}*
- Annual Leave Buyback - #01-0035
- Subject to forfeiture if not used
*	**{B-182608, August 9, 1977} *
- Suspension and non-pay status - #00-4386
- Lump-sum payment not allowable for SL
- 	*{B-190152,  November 30, 1977}*

## Types of Pay Claims -Unpaid Compensation 

- Beneficiary involved in murder
-     of deceased - #00-3118:
- 	Disqualified *{B-175195, April 26, 1972}*
- Divorce Decree - #01-0023
- Courts of state of domicile have no jurisdiction
*	**{B-227728, March 23, 1988} *
- Court-Ordered Child Support or Bankruptcy
- Advisory Opinion - Yes and No
- 	*{42 USC 659; 58 Comp. Gen 644 (July 9, 1979)}*

**Notes:**

re-designation
Also payment  for day of death

## Excellent Representation

- Atlanta - Ginny Magnuson
- Chicago - Vacant
- Dallas - Bonnie Brandon
- Philadelphia - Bob Hendler
- San Francisco - Carlos Torrico
- Washington - Linda Kazinetz
- FLSA/Pay -
-         Deborah McKissick

## QUESTIONS AND ANSWERS

- FEDCLASS_APPEALS@OPM.GOV
- FEDERAL_FLSA@OPM.GOV
- MADRUMMO@OPM.GOV
- (202) 606-2990

- Thanks!