U.S. Office of Personnel Management
Office of Merit Systems Oversight and Effectiveness
Classification Appeals and FLSA Programs

Philadelphia Oversight Division
600 Arch Street, Room 3400
Philadelphia, PA  19106-1596

		Fair Labor Standards Act Decision
	Under section 4(f) of title 29, United States Code

	Claimant:		[claimant's name]

	Agency classification:	Architect
				GS-808-11

	Organization:		Projects Section
				Facilities Management Service
				Medical Center
				Department of Veterans Affairs
				[location]

	Claim:			Exemption status

	OPM decision:		Claim denied

	OPM decision number:	F-0808-11-01
	/s/
	_____________________________
	Robert D. Hendler
	FLSA Claims Officer

	2/5/01
	_____________________________
	Date

As provided in section 551.708 of title 5, Code of Federal Regulations (CFR), this is binding on 
all administrative, certifying, payroll, disbursing, and accounting officials of agencies for which 
Office of Personnel Management administers the Fair Labor Standards Act.  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.  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 551.710).  The claimant has the 
right to bring action in the appropriate Federal court if dissatisfied with the decision.

				Decision sent to:

[claimant's name]				[name]
[claimat's address}				Chief, Human Resources Management
 						Service
						Department of Veterans Affiars
						Medical Center
						
						[address]
						[location]

						Ms. Ventris C. Gibson
						Deputy Assistant Secretary for
						Human Resources Management (05)
						810 Vermont Avenue, NW
						Department of Veterans Affairs
						Washington, DC   20420

Introduction

On October 27, 1999, the Philadelphia Oversight Division of the U.S. Office of Personnel 
Management (OPM) received a Fair Labor Standards Act (FLSA) claim from [claimant's name].  
In his October 18, 1999, letter the claimant stated that he was classified as an FLSA non-exempt 
worker who occasionally works compensatory time.  However, he claimed that non-exempt 
workers are paid their regular rate of pay, not one and one-half times his regular rate of pay, for 
overtime worked.  His claim is based on having worked a total of 11.75 hours in May 1998, 
September 1998, and March 1999, as compensatory time, which he also believes should have 
been credited at the same rate of one and one-half hours of compensatory time for each hour of 
compensatory time earned.  He also requested proper compensation, including liquidated 
damages; education of management and staff on pay setting matters; and "a broad review 
regarding who has what classification and why."  We have accepted and decided his claim under 
section 4(f) of the FLSA as amended.

General issues

The claimant raised concerns in his letters on how the FLSA has been implemented in his 
activity.  He said that his activity does not uniformly classify work as exempt or non-exempt, 
pointing out that an engineer who performs identical work is classified as exempt.  However, we 
must make exemption decisions by comparing a claimant's duties and responsibilities to criteria 
in Federal regulations and other guidelines, and cannot compare a position to others in deciding a 
claim.

The claimant stated that the Department of Veterans Affairs (VA) structures its architectural 
work to prevent it from being performed with the judgement required to be considered exempt.  
He stressed that the factor levels credited to his position evidence the limited nature of his 
assignments and the non-exempt nature of the work that he performs.  However, the factor levels 
assigned to his position do not control the FLSA coverage of his work.  Instead, they represent 
agency classification judgements and are not directly applicable to FLSA coverage analysis.  The 
PD's information, including the factor levels described, may only be considered to the extent that 
they help us determine how the position works.

OPM independently determines the FLSA exemption status of the work performed by a claimant 
before we address a claim for uncompensated overtime. We have addressed the claimant's 
comments on how FLSA is implemented in the Federal government and other matters not 
germane to this case in separate correspondence.

In reaching our FLSA decision, we have carefully reviewed all information furnished by the 
claimant and his agency, including his official position description (PD) #[number] classified as 
Architect, GS-808-11; information in the claim administrative report; and the activity's and 
claimant's responses to our letter of April 10, 2000, seeking to clarify the duties and 
responsibilities assigned to and performed by the claimant.  On November 19, 1999, the claimant 
and his supervisor certified the PD as current and accurate.

Evaluation

The claimant disagrees with the agency's exemption determination made under the professional 
exemption criteria.  His rationale also addresses the administrative exemption criteria.  In our 
decision, we compare his position with both of these criteria to determine the FLSA exemption 
status of his position.  

The regulations applicable in determining if work is exempt or non-exempt are contained in 5 
CFR, part 551, Pay Administration Under the FLSA, Subpart B, Exemptions and Exclusions.  
Section 551.207 of the CFR contains the criteria governing whether the claimant's position 
should be exempt from the FLSA under the professional exemption criteria.  The position is 
exempt if it meets professional exemption criteria (a)(1), (2), or (3), known as the primary duty 
test, and (b) through (d), in section 551.207.

The claimant's position meets the primary duty test.

Criterion (a)(1) deals with work that requires knowledge in a field of science or learning 
customarily and characteristically acquired through education or training that meets the 
requirements for a bachelor's or higher degree, with major study in or pertinent to the specialized 
field as distinguished from general education; or work comparable to that performed by 
professional employees that is performed on the basis of specialized education or training and 
experience which has provided both theoretical and practical knowledge of the specialty, 
including knowledge of related disciplines and of new developments in the field.

The claimant believes that he does not apply theoretical knowledge; he applies practical 
knowledge of the requirements and techniques set forth in code and VA standards.  He also 
states he spends at least 80 percent of his time as a Contracting Officer's Technical 
Representative (COTR).  This work consists of inspecting the work products of both outside 
architect/engineers (A/E) as well as construction contractors. He says he applies very specific 
criteria, follows standard procedures and codes, compares the work product to published VA 
standards and specifications, and selects from established standard procedures when problems 
are encountered.  He said that he provides expertise, but does not resolve critical problems, and 
applies standard architectural practices, but does not deal with difficult to resolve conflicts.  
However, in contrast, he also claimed that as a troubleshooter, he corrects the problems of other 
architects and engineers.  In doing so, he cannot use pre-existing solutions.  He stated that this 
work takes a fairly high degree of training and experience to successfully bring resolution to 
difficult field or design supervision problems. 

Responding to our request for clarification, he stated that the classification factors credited to his 
position prevent him from practicing as a professionally exempt senior architect.  He said that 
COTR delegations do not give him authority on matters of time or money, thereby limiting his 
authority and independent judgement.  He claimed that he is limited to clarifying problems and 
reaching agreements, rather than persuading other architects or subject-matter specialists to adopt 
technical points and methods about which there are conflicts and to negotiate agreements.  He 
reiterated the limitations that policy imposes on his work, and said that he refers situations where 
rules do not apply and a better solution has to be derived by going beyond the rules and working 
out a new rule from the intent of the previous to his supervisor.

The PD of record describes work that conflicts with these statements.  It states that the claimant 
is responsible for assisting in the general design of construction projects.  As a member of the 
project design team, he participates in preliminary design meetings to develop cost efficient, 
space efficient, functional and aesthetic design schemes for station level, NRM, minor 
miscellaneous and major projects.  He acts as liaison between Engineering Service, medical 
center personnel and Architectural/Engineering firms.  He is a member of the A/E Selection 
Board and participates in the A/E selection process.  The claimant is expected to provide 
professional architectural and design services related to the layout, design, development and 
completion of construction projects ranging from $25,000 to $3,000,000 and small in-house 
maintenance projects.  He prepares project scope, cost estimates, drawings and contract and 
prepares justifications and descriptions for proposed projects.  During the construction phase, the 
claimant prepares necessary reports, checks blueprints and specifications, and takes corrective 
action when needed.  He reviews and approves/disapproves material and equipment submittals 
for the projects assigned to him during the construction phase.  The claimant ensures that 
standards and regulations are followed in the designs as well as ensuring the competency of the 
design.  The claimant's performance standards confirm these functions.

The claimant's agency has provided information on the expectations and requirements of the 
position, as annotated in the PD, indicating the claimant's primary duty consists of work that 
requires substantial knowledge in architecture and related engineering fields, as acquired through 
a bachelor's degree.  We find that the architecture degree is in a field that is pertinent to his 
identifying design and construction problems and developing proposed solutions for those 
projects.  Working within policy limitations does not, as the claimant suggests, restrict the 
application of knowledge in analyzing technical issues.  We find that criterion (a)(1) is met; 
therefore the primary duty test is met.

The claimant's position meets criterion (b).

Criterion (b) focuses on work of an intellectual nature, which is work involving general 
intellectual capability, such as perceptiveness, analytical reasoning, perspective, and judgement 
applied to a variety of subject-matter fields, or work involving mental processes that require 
substantial judgement based on considering, selecting, adapting, and applying principles to 
numerous variables.  An employee involved in work of an intellectual nature does not rely on 
standardized application of established procedures or precedents, but must recognize and 
evaluate the effect of a continual variety of conditions or requirements in selecting, adapting, or 
innovating techniques and procedures, interpreting findings, and selecting and recommending the 
best alternative from a broad range of possible actions.

Based on the nature of the work described, we find the work involves analytical demands typical 
of full performance level architectural work.  The record shows that the architectural work 
performed requires intellectual capability, including perceptiveness, analytical reasoning, 
perspective, and judgement to conceptualize alternative technical approaches necessary to 
develop scopes of work, resolve issues with and recommend redesigns to contract architects, and 
technically oversee contractor performed construction and related work.  These functions entail 
applying knowledge of a variety of subject-matter fields covered by architectural and related 
engineering principles.  The work involves substantial judgement based on considering, 
selecting, adapting, and applying this wide variety of subject-matter principles and concepts to 
the numerous variables present with each architectural project.

Working within the confines of agency policy does not change the fact that the claimant is 
responsible for organizing and planning his assigned architectural functions.  He must determine 
the most appropriate means of completing assigned position functions, and apply the breadth and 
depth of program and technical knowledge in the most effective way to accomplish the 
architectural and engineering duties effectively and efficiently.  The position reflects the scope of 
work and application of intellectual acumen that satisfy this criterion (b).

The claimant's position meets criterion (c).

This criterion covers the use of discretion and independent judgement.  Established OPM 
guidance explains that the exercise of discretion and independent judgement involves 
interpreting results or implications, and independently taking action or making a decision after 
considering the various possibilities.  The work must involve sufficient variables as to regularly 
take action and the decisions must be significant.  Employees who perform work requiring 
primarily skill in applying standardized techniques or knowledge of established procedures, 
precedents, or other guidelines that specifically govern their actions would not meet this element.  
In addition, deciding whether a situation does or does not conform to clearly applicable criteria 
would not be considered making significant decisions.

GS-11 grade level work, whether exempt or non-exempt, is defined in 5 USC 5104(11) as:

work of marked difficulty and complexity and responsibility. . .requiring extended specialized, 
supervisory, or administrative experience which has demonstrated important attainments and marked 
capacity for sound independent action or decision; and. . .intimate grasp of specialized and complex 
subject matter, or of the profession, art or science [or]. . .with wide latitude for the exercise of 
independent judgement, to perform work of considerable difficulty requiring somewhat extended 
professional, scientific, or technical training and experience which has demonstrated important 
attainments and marked capacity for independent work . . . . 

The claimant's position is vested with substantial independence of action since the claimant plans 
and carries out his assignment independently, resolves most conflicts that may arise, and 
coordinates work with others.  He is expected to interpret agency policy on his own, keeping his 
supervisor informed of potentially controversial matters or far-reaching implications.  The PD 
reflects regular and recurring exercise of discretion and judgement in such duties as coordinating 
projects, working as a member of the project design team, acting as a member of the A/E 
Selection Board, and participating in the A/E selection process.

While agency policies may limit certain administrative choices, they do not limit the position's 
requirement for professional analysis.  OPM's FLSA regulations state that decisions made as the 
result of the exercise of independent judgement may consist of recommendations for action 
rather than the actual taking of action.  The fact that decisions are subject to review does not 
mean that the employee is not exercising independent judgement of the level required for 
exemption.  Decisions are not "significant" if they only affect the procedural details of the 
employee's own work or such matters as deciding whether a situation conforms to clearly 
applicable criteria.  The term "significant," however, is not restricted to decisions that are made 
by employees who formulate policies or exercise broad commitment authority.  The claimant's 
work meets this criterion in that he judges how to apply standard architectural practices and 
modify conventional practices.  The claimant's day-to-day freedom of action in performing the 
above analytically demanding work, reflects sufficient variables as to regularly require the scope 
of discretion and judgement warranting the crediting of this element to the position.

Criterion (d) is not applicable.

In addition to the primary duty criterion, GS employees in positions classified at the GS-5 or GS-
6 grade level must spend 80 percent or more of the work time in a representative work week on 
professional functions and work that is an essential part of those functions.  Because the 
claimant's position is classified above these grade levels, this criterion does not apply to the 
position.

Summary

Based on the preceding analysis, we find the claimant's position is exempt under the professional 
exemption criteria.

Section 551.206 of the CFR contains the criteria governing whether the claimant's position 
should be exempt from the FLSA under the administrative exemption criteria.  The position is 
exempt if it meets administrative exemption criterion (a)(1), (2), or (3), known as the primary 
duty test, and (b) through (d), in section 551.206.

The claimant's position meets the primary duty test.

Criterion (a)(1) deals with work that significantly affects the formulation or execution of 
management policies or programs.  Criterion (a)(2) involves general management or business 
functions or supporting services of substantial importance to the organization serviced.  Criterion 
(a)(3) involves substantial participation in the executive or administrative functions of a 
management official.

Work that affects the formulation or execution of management programs and policies recognizes 
that management policies and programs range from broad national goals expressed in statutes or 
Executive Orders to specific objectives of a small field office.  Employees may actually make 
policy decisions or participate indirectly, through developing proposals that others act on.  
Employees who significantly affect the execution of management policies or programs typically 
are those whose work involves obtaining compliance with such policies by individuals or 
organizations, both within or outside the Federal government, or making significant 
determinations in furthering the operation of programs and accomplishing program objectives.  
Administrative employees engaged in such work typically perform one or more phases of 
program management; i.e., planning, developing, promoting, coordinating, controlling, or 
evaluating operating programs.

As COTR, the claimant functions as management's representative in executing management 
programs by obtaining contractor compliance with technical contract requirements.  Crediting 
this criterion is not prevented, as the claimant proposes, by his lack of contracting officer 
authority.  This criterion is creditable because the contracting officer relies on the claimant's 
technical input to determine whether contract requirements have been satisfied.  Management 
similarly relies on the claimant's advice in determining the acceptability of contractor A/E work.  
The claimant performs exempt program planning work in preparing project scope, cost estimates, 
drawings and contract specification, and preparing and justifying proposed projects.  For these 
reasons, criterion (a)(1) is met.

In addition to the difficult and complex analytical functions involved in general management, 
e.g., budgeting or financial management, general management or support services include 
services ranging from automated data processing to the procurement and distribution of supplies.  
Support may also entail providing expert advice in a specialized subject matter field; assuming 
facets of the overall management function; or, representing management in business functions 
such as determining the acceptability of goods or services, or authorizing payments.  The 
organizational location does not change service functions into non-exempt production functions.  
To warrant exemption from the FLSA, such work must involve substantial discretion on matters 
of enough importance that the employee's actions and decisions have a noticeable impact on the 
effectiveness of the organization advised, represented, or serviced.

The claimant determines the acceptability of goods, e.g., approving or disapproving material and 
equipment during the construction phase, and the acceptability of services, e.g., A/E contract 
products.  In preparing documents for progress reports, partial payments, change orders, and 
supplemental agreements, his work is central to the purpose and reason for the existence of the 
Engineering Service; i.e., planning, coordinating, and managing the activity's engineering 
program.  The functions he performs as staff architect are part of the core mission of the 
engineering program to meet a broad range of management goals, e.g., assisting in the general 
design of construction projects to meet cost efficiency, space efficiency, and functional and 
aesthetic requirements.  Thus, his decisions and recommendations are of fundamental importance 
to the business of the engineering program and the medical center.  He works within the overall 
policies, objectives, and requirements prescribed by activity and agency program regulations, 
guidelines, and procedures.  These functions reflect support services of substantial importance to 
the organization, and affect the ability of the activity, and its Engineering Service, to accomplish 
their mandated emergency management program mission.  Therefore, we find that the claimant's 
work also meets criterion (a)(2).

The claimant's position meets the nonmanual work test.

Criterion (b)(1) covers work that is intellectual and varied in nature.  Criterion (b)(2) covers 
work of a specialized or technical nature that requires considerable specialized training, 
experience, and knowledge.

Work meeting criterion (b)(1) involves general intellectual capability, such as perceptiveness, 
analytical reasoning, perspective and judgement applied to a variety of subject-matter fields, or 
work involving mental processes that require substantial judgement based on considering, 
selecting, adapting and applying principles to numerous variables.  The employee cannot rely on 
standardized application of established procedures or precedents, but must recognize and 
evaluate the effect of a continual variety of conditions or requirements in selecting, adapting, or 
innovating techniques and procedures, interpreting findings, and selecting and recommending the 
"best" alternative from among a broad range of possible actions.

While agency policies may limit certain administrative choices, they do not limit the position's 
requirement to analyze contractor performance for adherence to technical contract specifications 
and equivalent issues.  As discussed previously, OPM's FLSA regulations state that decisions 
made as the result of the exercise of independent judgement may consist of recommendations for 
action rather than the actual taking of action.  The fact that decisions are subject to review, e.g., 
by the supervisor and/or contracting officer does not mean that the employee is not exercising 
independent judgement of the level required for exemption.  The claimant's work meets this 
criterion in judging whether A/E firms and other contractors are responsive to project and 
program needs, working with them to resolve problems and recommend re-designs, and 
recommending contract actions to the contracting officer.  The claimant's day-to-day freedom of 
action in performing the above analytically demanding work reflects sufficient variables as to 
regularly require the scope of discretion and judgement sufficient to crediting this criterion to the 
position.

Work meeting criterion (b)(2) requires specialized knowledge of a complex subject matter and of 
the principles, techniques, practices and procedures associated with that subject-matter field.  
These knowledges characteristically are acquired through considerable on-the-job training and 
experience in the specialized subject-matter field, as distinguished from professional knowledges 
characteristically acquired through specialized academic training.

The duties described previously in this decision require substantial intellectual effort to analyze 
and apply subject matter of considerable difficulty entailed in the program work assigned to the 
position.  The position's full performance level architectural design and contractor oversight 
duties reflect work requiring substantial knowledge of complex subject matter.  Accordingly, we 
find the position meets criterion (b)(2).

The position meets the discretion and independent judgement test.

Work meeting criterion (c) requires the employee to frequently exercise discretion and 
independent judgement, under only general supervision, in performing the normal day-to-day 
work.  The exercise of discretion and independent judgement involves interpreting results or 
implications, and independently taking action or making a decision after considering the various 
possibilities.  Decisions made as the result of independent judgement may consist of 
recommendations for action rather than the actual taking of action.  The fact that an employee's 
decisions are subject to review, and may be revised or reversed, does not mean an employee is 
not exercising discretion and independent judgement of the level required for exemption.

The claimant's position is vested with substantial independence of action as discussed previously. 
While agency policies may limit certain administrative choices, they do not limit the position's 
requirement to analyze and recommend action on contractor proposals and performance.  Firm 
commitments or final decisions are not necessary to support exemption.  Decisions made as the 
result of the exercise of independent judgement may consist of recommendations for action 
rather than the actual taking of action.  The fact that decisions are subject to review does not 
mean that the employee is not exercising independent judgement of the level required for 
exemption.  Decisions are not "significant" if they only affect the procedural details of the 
employee's own work or such matters as deciding whether a situation conforms to clearly 
applicable criteria.  The term "significant," however, is not restricted to decisions that are made 
by employees who formulate policies or exercise broad commitment authority.  The claimant's 
work meets this criterion in judging whether A/E designs, contractor responsiveness to 
statements of work, and contractor construction performance meet program requirements.  The 
claimant's day-to-day freedom of action in performing the above analytically demanding work, 
reflects sufficient variables as to regularly require the scope of discretion and judgement 
warranting the crediting of criterion (c) to the position.

Criterion (d) is not applicable.

In addition to the primary duty criterion, GS employees in positions classified at the GS-5 or GS-
6 grade level must spend 80 percent or more of the work time in a representative work week on 
administrative functions and work that is an essential part of those functions.  Because the 
claimant's position is classified above these grade levels, this criterion does not apply to the 
position.

Summary

Based on the preceding analysis, we find the claimant's position is exempt from the FLSA under 
the administrative exemption category.

Decision

Based on the above analysis, the claimant's position is properly exempt from the overtime 
provisions of the FLSA.  Therefore, we cannot address his claim for overtime pay.