# Presentation: 710846

## STRATEGIC COMPENSATIONCONFERENCE

- Melissa Drummond
- August 28 - 29, 2001

## Agenda

- Overview of Adjudicative Functions
- Classification Appeals Program Update
- Proposed Regulatory Changes
- Recent Digest Articles
- Information on FLSA
-     Program
- Compensation and Leave
-     Claims

## Office of Merit Systems Oversight and Effectiveness

- Associate Director reports to OPM Director
- Has three major components
- Office of Merit Systems Effectiveness
- Office of Workforce Information
- Office of Merit Systems
-     Oversight
- Five Field Components and
-     Washington

## Merit Systems Oversight Umbrella

- Office of Merit Systems                    Oversight
- Agency Reviews
- Special Studies
- Adjudication Function
- Classification Appeals
- Fair Labor Standards Act (FLSA) Claims
- Claims relating to Compensation and Leave (referred to as pay claims)

## Adjudication Statistics

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

## Appeal Outcomes - FY99 - FY01

## Appeal Outcomes - FY99 - FY01

## Professionalism of OPM Representatives

## Agency Response vs. OPM

## Plain Language

## Addressing of Classification Issues

## Classification Appeals Process

- GS - Hierarchical Structure
- May appeal to agency or OPM
- FWS
- Need to go to agency first
- Exemptions
- Some agencies are exempt from
-    parts of Title 5 and the Classification Act
- Final administrative recourse is the agency

## Important Aspects of Classification Appeals Process

- PD Accuracy Process
- Automated PDs
- Agency Administrative Report
- Factfinding
- Application of OPM standards
- OPM Decision is final and binding
- Applies to similarly situated positions

## 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

## Recent Digest Articles

- Digest 27
- ‘Back to the Basics’
- Links to Decisions
- Website

## Interdisciplinary Positions

- GS-401 that had previously been classified as a GS-408
- Final classification is determined
-      by quals of person  selected to
-      fill the position
- Interdisciplinary positions are
-      applicable for professional
-      positions only

## Technician vs. Professional

- Was confident that quals
-      merited higher grade
- Studies were defined, planned,
-      and directed by professional
- Training and keeping abreast
-      of information is well within
-      the standard

## 303-6 and 343-12

- One-grade requesting two-grade
- Worked with database that applied edit checks
- Used two clearly-defined coverage exclusions and standard letters
- Two-grade downgraded to one-grade
- Obtained basic information and used boilerplate letters

## 647-5

- Automated pd credited Level 2-3
- Complex procedures were performed less than 25% of the time
- Work was closely monitored and at times performed by higher-graded employees
- Automated PDs are not equivalent to benchmark PDs

## 963-8 upgrade to 9

- Appellant requested classification as 343-9
- Work clearly met the 963 series definition
- OPM found that the appellant had signatory authority equivalent to Level 2-4
- Performance or delivery of line
-    program operations or services
-    are not normally classified in
-    the GS-343 series

## Standard allows for the “effect of individual stature” concept for borderline situations
OPM found that experience
    credited under Responsibility
    but could not be considered
    again under “stature”
Specific standard instructions take precedence over general guidance

- OPM found that experience
-     credited under Responsibility
-     but could not be considered
-     again under “stature”
- Specific standard instructions take precedence over general guidance

- 905-12 upgrade to 13

## RGEG

- Allows for intermediate point values
- Appellants believed that exceeding one degree in any aspect merited credit at the next degree
- Some aspects exceeded but others fell short
- Counterbalance nullified crediting of higher level

## Appellant requested that his
   economic research be evaluated
   using the GS-110 standard
RGEG specifically excludes
   research in the social sciences 
This type of research does not typically involve the types of investigative processes representative of RGEG work

-    economic research be evaluated
-    using the GS-110 standard
- RGEG specifically ***excludes***
-    research in the social sciences
- This type of research does not typically involve the types of investigative processes representative of RGEG work

- GS-110 - RGEG Coverage

## GSSG

- Agency credited 3-4 to a field
-     manager with 70 employees
- All of 3-3a was not met due to
-     the lack of delegation of program responsibility - nullified 3-4 crediting
- Activities were stable and did not require significant flexibility in structure of work

## Full supervision of two GS-12s and assumed supervisor’s duties when absent
Two GS-12s exercised
    considerable independence

In analyzing a supervisory
   position, subordinate
   positions may need to be reviewed

- Two GS-12s exercised
-     considerable independence
- In analyzing a supervisory
-    position, subordinate
-    positions may need to be reviewed

- GS-801 - GSSG Coverage

## What is the paramount knowledge of the position/job?
Job required knowledge of electronic principles but for the primary purpose of recognizing improper
   operation, determining
   cause of malfunctions,
   correcting defects

- Job required knowledge of electronic principles but for the primary purpose of recognizing improper
-    operation, determining
-    cause of malfunctions,
-    correcting defects

- WG-2604 - FWS vs. GS

## Appellant requested additional
   credit for variety of skills/work
OPM determined the target
   grade of the work being led
Training involved formal organized training programs covering a recognized trade combined with on-the-job practice designed to progressively improve the students’ skills

-    credit for variety of skills/work
- OPM determined the target
-    grade of the work being led
- Training involved formal organized training programs covering a recognized trade combined with on-the-job practice designed to progressively improve the students’ skills

- FWS JGS for WL

## FLSA Information

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

## Hot Topics

- Issue of Back Pay Interest
- U.S. vs. Rowdy Adams, February 13, 2001
- Temporary Work
- Misclassifications discovered during FLSA factfinding
- Reconsideration of FLSA Decisions
- 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)
**1995** - Treasury Appropriations Act upholds 2 year statute after June 30, 1994

## Important FLSA Terminology

**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

- 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

## Summary of General Exemption Principles

- Separate exemption criteria are not mutually    exclusive
- Failure to meet exemption criteria under one category does not preclude exemption from under another category
- FLSA designation ultimately rests on the duties actually being performed by the employee

## Making Exemption Determinations

- Preparation
- Gather Materials and confirm PD accuracy
- Analysis
- Eliminate primary duty tests that
-    are not met
- Analyze the pd and evaluation
-    statement with regulatory guidance
- Conclusion

## Executive Exemption Criteria

- Is the primary duty
-    test met?
- Makes personnel changes &
-     has authority to recommend
-     personnel changes
- Is the 80-percent test met?
- 80% or more of workweek on supervisory and closely related work

## 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?
- Is the 80-percent test met?

## Professional Exemption Criteria

- Is the primary duty test met?
- Does the work require
-    creative or analytical
-     thought processes?
- Is discretion/independent
-     judgment used?
- Is the 80-percent test met?

## Temporary Work

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

## Foreign Exemptions

- Spends _all hours of work_ in one or
-     more exempt area
**Exempt area** - any foreign
-     country/territory under U.S.
-     jurisdiction except -
- All States & Washington, DC
- Puerto Rico, Virgin Islands
-    American Samoa, Guam

## 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
- Small Agencies
- 8 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
- Must follow NGPs if covered
-     by a collective bargaining
-     agreement

## Pay Claims

- 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

## Authority for Adjudication of Claims

- 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

## Basic Principles of Pay Claims Function

- Regulatory guidance
- CFR
- Reconsiderations are not accepted
- Civilian Personnel Manual
- Department of State Standardized Regulations
- Comptroller General
-    Decisions

## Types of Claims 

- Compensation
- Back pay for performance of higher duties
- Standby vs. On-call
- Leave
- Forfeited Annual Leave
- Unpaid Compensation
- Divorce Decree
- Redesignation

## Findings of Pay Claims

- Carter v. Gibbs
- 6-year Statute of Limitations
- 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

## Discussion Topics

- Issuance of new/revised standards in   conjunction with the
-     issuance of a classification
-     appeal decision
- Up-to-date information on
-    appellate authorities and
-    claim offices within agencies

## Excellent Representation

- Atlanta - Tim Heath *
- Chicago - Douglas Schauer
- Dallas - Bonnie Brandon
- Philadelphia - Bob Hendler
- San Francisco - Carlos Torrico
- Linda Kazinetz - Washington
- FLSA/Pay - Vacant
- 			*Acting

## QUESTIONS AND ANSWERS

- FEDCLASS_APPEALS@OPM.GOV
- FEDERAL_FLSA@OPM.GOV
- MADRUMMO@OPM.GOV
- (202) 606-2990
- WWW.OPM.GOV
- Class. Appeals and FLSA - 1996
- Comp. And Leave - 2000