Fair Labor Standards Act Coverage Fact Sheet
June 1998
MSO-98-1


Office of Personnel Management Authority

Section 3(e)(2) of the Fair Labor Standards Act of 1938 (the Act or FLSA), as amended, sections
201 et seq. of title 29, United States Code, authorizes the application of the provisions of the Act
to any person employed by the Government of the United States, as specified in that section. 
Section 4(f) of the Act authorizes the Office of Personnel Management (OPM) to administer the
provisions of the Act for all such employees, except for those who are employed by the Library of
Congress, United States Postal Service, Postal Rate Commission, Tennessee Valley Authority,
U.S. House of Representatives, U.S. Senate, Capitol Guide Service, Capitol Police, Congressional
Budget Office, Office of the Architect of the Capitol, Office of the Attending Physician, or Office
of Compliance.  Employees of these entities should contact their human resources office regarding
FLSA matters.

Agency Authority

The employing agency may designate an employee FLSA exempt only when the agency correctly
determines that the employee meets one or more of the exemption criteria in part 551 of title 5,
Code of Federal Regulations (CFR), and supplemental guidance issued by OPM.

General Principles of Exemptions

In all exemption determinations, the employing agency will observe the principles that 
                 (a)  Each employee is presumed to be FLSA non-exempt unless the employing agency
correctly determines that the employee clearly meets one or more of the exemption criteria in 5
CFR 551 and supplemental guidance issued by OPM.
                 (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.
                 (d)  An employee who clearly meets the criteria for exemption must be designated FLSA
exempt.  If there is a reasonable doubt as to whether an employee meets the criteria for
exemption, the employee should be designated FLSA nonexempt.
                 (e)  There are groups of General Schedule employees who are FLSA nonexempt because they
do not fit any of the exemption categories.  These groups include the following:
                 (1)  Nonsupervisory General Schedule employees in equipment operating and protective
occupations, and most clerical occupations (see the definition of participation in the executive or
administrative functions of a management official in 5 CFR 551);
                 (2)  Nonsupervisory General Schedule employees performing technician work in positions
properly classified below GS-9 (or the equivalent level in other comparable white-collar pay
systems) and many, but not all, of those positions properly classified at GS-9 or above (or the
equivalent level in other comparable white-collar pay systems); and
                 (3)  Nonsupervisory General Schedule employees at any grade level in occupations requiring
highly specialized technical skills and knowledges that can be acquired only through prolonged job
training and experience, such as the Air Traffic Control series, GS-2152, or the Aircraft
Operations series, GS-2181, unless such employees are performing predominantly administrative
functions rather than the technical work of the occupation.
                 (f)  Although separate criteria are provided for the exemption of executive, administrative, and
professional employees, those categories are not mutually exclusive.  All exempt work, regardless
of category, must be considered.  The only restriction is that, when the requirements of one
category are more stringent, the combination of exempt work must meet the more stringent
requirements.
                 (g)  Failure to meet the criteria for exemption under what might appear to be the most
appropriate criteria does not preclude exemption under another category.  For example, an
engineering technician who fails to meet the professional exemption criteria may be performing
exempt administrative work, or an administrative officer who fails to meet the administrative
exemption criteria may be performing exempt executive work.
                 (h)  Although it is normally feasible and more convenient to identify the exemption category,
this is not essential.  An exemption may be based on a combination of functions, no one of which
constitutes the primary duty, or the employee's primary duty may involve two categories which
are intermingled and difficult to segregate.  This does not preclude designating an employee FLSA
exempt, provided the work as a whole clearly meets the other exemption criteria.
                 (i)  The designation of an employee as FLSA exempt or nonexempt ultimately rests on the
duties actually performed by the employee.

For More Information

If you have specific questions or need more information, contact the OPM Oversight Division
having jurisdiction over your geographical area, or send an email to us at  federal_flsa@
opm.gov.  OPM's FLSA regulations are published in part 551 of title 5, Code of Federal
Regulations.

Address and Jurisdiction                                Telephone

OPM Atlanta Oversight Division                     (404) 331-3451
                                                       75 Spring Street, SW., Suite 972
                                                       Atlanta, GA  30303-3109

                                                       Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, Virginia
                                                       (except as noted under the Washington, DC Oversight Division)

OPM Chicago Oversight Division                     (312) 353-0387
                                                       230 S. Dearborn Street, DPN 30-6
                                                       Chicago, IL  60604-1687

                                                       Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Nebraska, North
                                                       Dakota, Ohio, South Dakota, West Virginia, Wisconsin

OPM Dallas Oversight Division                      (214) 767-0561
                                                       1100 Commerce Street, Room 4C22
                                                       Dallas, TX  75242-9968

                                                       Arizona, Arkansas, Colorado, Louisiana, Montana, New Mexico, Oklahoma, Texas, Utah,
                                                       Wyoming

OPM Philadelphia Oversight Division                (215) 597-9797
                                                       600 Arch Street, Room 3400
                                                       Philadelphia, PA  19106-1596

                                                       Connecticut, Delaware, Maine, Maryland (except as noted under the Washington, DC
                                                       Oversight Division), Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania,
                                                       Rhode Island, Vermont, Puerto Rico, Virgin Islands

OPM San Francisco Oversight Division               (415) 281-7050
                                                       120 Howard Street, Room 760
                                                       San Francisco, CA  94105-0001

                                                       Alaska, California, Hawaii, Idaho, Nevada, Oregon, Washington, Pacific Ocean Area

OPM Washington, DC Oversight Division              (202) 606-2990
                                                       1900 E Street, NW., Room 7675
                                                       Washington, DC  20415-6000

                                                       The District of Columbia 
                                                       In Maryland:  the counties of Charles, Montgomery, and Prince George's.
                                                       In Virginia:  the counties of Arlington, Fairfax, King George, Loudoun, Prince William, and
                                                       Stafford; the cities of Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park; and
                                                                                                              any overseas area not included above.                Summary of FLSA Exemption Criteria

These charts summarize the FLSA exemption criteria in part 551 of title 5, Code of Federal
Regulations, and should be used in conjunction with those regulations.

                                
                                
                             EMPLOYEE
                             CATEGORY
                          REGULAR DUTIES            
                                
                                
                                
                           Executive
                       Exemption Criteria
                          Administrative
                        Exemption Criteria
                           Professional
                        Exemption Criteria


GS employees at or
above GS-7.

GS employees above
GS-9 in positions
subject to section 7(k)
of the Act, that is, fire
and law enforcement
personnel on special
shift work schedules.

FWS supervisors
classified at situation
3 or 4.

551.205:  To be exempt,
the employee need meet
only the primary duty test
in 551.205(a).

(The 80 percent test in
551.205(b) does not apply.)
551.206:  To be exempt, the employee
must meet the primary duty test in
551.206(a), the nonmanual work test in
551.206(b), and the discretion and
independent judgment test in
551.206(c).

(The 80 percent test in 551.206(d) does
not apply.)


                   551.206:  Not applicable to
                         FWS supervisors.
551.207:  To be exempt, the employee
must meet the primary duty test in
551.207(a), the intellectual and varied
work test in 551.207(b), and the discre-tion and independent judgment test in
551.207(c).

(The 80 percent test in 551.207(d) does
not apply.)

          
                   551.207:  Not applicable to
                         FWS supervisors.


GS employees in 
GS-7, 8, or 9
positions subject to
sec-tion 7(k) of the
Act, that is, fire and
law enforcement
pers-onnel on
special shift work
schedules.




551.205:  To be exempt,
employees in GS-7, 8, or
9  7(k)' positions, FWS
supervisors classified
below situation 3, and
employees at GS-5 or 6
must meet both of the
tests in 551.205.  Those
tests are the primary duty
test in 551.205(a) and
the 80 percent test in
551.205(b).

To meet the 80 percent
test, the employee must
spend 80 percent or
more of worktime in a
represen-tative workweek
on super-visory and
related work.  




FWS supervisors
classified below
situation 3.





GS employees at 
GS-5 or 6.

551.206:  To be exempt, an employee
at GS-5 or 6 must meet the four tests in
551.206.  Those tests are the primary
duty test in 551.206(a), the nonmanual
work test in 551.206(b), the discretion
and independent judgment test in
551.206(c), and the 80 percent test in
551.206(d).

To meet the 80 percent test, the
employee must spend 80 percent or more
of worktime in a representative
workweek on administrative work.



551.207:  To be exempt, an employee at
GS-5 or 6 must meet the four tests in
551.207.  Those tests are the primary duty
test in 551.207(a), the intellectual and
varied work test in 551.207(b), the
discretion and independent judgment test
in 551.207(c), and the 80 percent test in
551.207(d).

To meet the 80 percent test, the employee
must spend 80 percent or more of work-time in a representative workweek on
professional work.


GS employees at or
below GS-4.

FWS nonsupervisory
employees.

                          Not applicable

                          Not applicable

                          Not applicable







            Summary of FLSA Exemption Criteria, cont.

                                
                                
                             EMPLOYEE
                             CATEGORY
TEMPORARY DUTIES                                
                                
                                

                       Temporary Duties and
                         Exempt Employees
Temporary Duties and             Nonexempt Employees
                            Emergency
                            Situations


GS employees at or
above GS-7.

GS employees above
GS-9 in positions
subject to section 7(k)
of the Act, that is, fire
and law enforcement
personnel on special
shift work schedules.

FWS supervisors
classified at situation
3 or 4.

551.208(c):  An exempt
employee becomes nonexempt
for the entire period of the
temporary duties only if the
temporary duties exceed 30
calendar days and the temporary
duties are nonexempt.

If an exempt employee becomes
nonexempt under 551.208(c),
the employee is nonexempt for
the entire period of the tempo-rary duties.  Pay may need to be
recalculated as explained in
551.208(c)(2).
551.208(b):  A nonexempt
employee becomes exempt
for the entire period of the
temporary duties only if the
temporary duties exceed 30
calendar days and the tempo-rary duties are exempt.

If a nonexempt employee
becomes exempt under
551.208(b), the employee is
exempt for the entire period
of the temporary duties.  Pay
may need to be recalculated as
explained in 551.208(b)(2).
551.208(d):  Regardless
of grade level, in an
emergency--

A nonexempt employee
remains nonexempt
whether the employee
performs exempt or
nonexempt work.

The exemption status of
an exempt employee
must be determined on a
workweek basis.  This
determination will result
in the employee either
remaining exempt or
becoming nonexempt
for that workweek.  The
employee becomes
nonexempt for any
workweek in which the
employee performs
nonexempt work or
duties for more than 20
percent of the worktime in
a given workweek.








Emergency situation
regulations apply to all
employees.


GS employees in 
GS-7, 8, or 9
positions subject to
sec-tion 7(k) of the
Act, that is, fire and
law enforcement pers-onnel on special shift
work schedules.





FWS supervisors
classified below
situation 3.
551.208(c)(3):  An exempt
employee at GS-5 or GS-6, or an
FWS supervisor classified below
situation 3, who is performing
temporary duties becomes
nonexempt for the given
workweek only if the employee
performs nonexempt duties for
20 percent or more of the
worktime in that workweek.
551.208(b):  Not applicable
to--

FWS supervisors classified
below situation 3.

GS employees at or below GS-6.

FWS nonsupervisory
employees.



GS employees at 
GS-5 or 6.





GS employees at or
below GS-4.

FWS nonsupervisory
employees.

                          Not applicable









            Summary of FLSA Exemption Criteria, cont..

                                
                                
                             FOREIGN
                            EXEMPTION
                 SPECIAL EXEMPTIONS/ EXCLUSIONS
                                
                                




551.209:  Regardless of grade level, an employee is not
subject to the minimum wage and overtime provisions of
the Act if either 1 or 2 is met.

   The employee is permanently assigned to an exempt area
and performs no hours of work in a workweek in a
nonexempt area.

   An employee on TDY performs all hours of work in a
workweek in an exempt area.

"Exempt area" and "nonexempt area" are defined in
551.102.



Foreign exemption regulations apply to all employees.











551.210:
Availability Pay.
The following employees are exempt from the hours of work
and overtime pay provisions of the Act:

(a)  A criminal investi-gator receiving availabil-ity pay under
550.181 of title 5, Code of Federal Regulations; and

(b)  A pilot employed by the United States Customs Service
who is a law enforcement officer as defined in section 5541(3)
of title 5, United States Code, and who receives availability pay
under section 5545a(i) of title 5, United States Code.

551.211:
Statutory exclusion.
A customs officer who receives overtime pay under subsection
(a) or premium pay under subsection (b) of section 267 of title
19, United States Code, for time worked may not receive pay or
other compensa-tion for that work under any other provision of
law.  "Customs officer" means a United States Customs Service
super-visory or nonsupervisory customs inspector or
supervisory or nonsuper-visory canine enforce-ment officer.