[Federal Register Volume 72, Number 179 (Monday, September 17, 2007)]
[Rules and Regulations]
[Pages 52753-52776]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-18027]
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Rules and Regulations
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Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 /
Rules and Regulations
[[Page 52753]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 551
RIN 3206-AK89
Pay Administration Under the Fair Labor Standards Act
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing a final
rule to amend the pay administration regulations issued under the Fair
Labor Standards Act of 1938. These regulations apply to all employees
in agencies who are under OPM's jurisdiction for FLSA purposes.
DATES: The regulations are effective October 17, 2007.
FOR FURTHER INFORMATION CONTACT: Georgeanna Emery by e-mail at
fedclass@opm.gov, by telephone at 202-606-3600, or by fax at 202-606-
4891.
SUPPLEMENTARY INFORMATION: On May 26, 2006, the Office of Personnel
Management (OPM) published proposed regulations (71 FR 30301) to amend
5 CFR, part 551, subparts A, B, F and G. The changes were proposed to
update and harmonize OPM's regulations with the Department of Labor's
(DoL) regulations issued under the Fair Labor Standards Act of 1938
(referred to as ``FLSA'' or ``the Act''). In addition, we provided in
the proposed regulations a clearer understanding of coverage for
executive, administrative, and professional employees by adding
definitions and examples.
The 60-day comment period for the proposed regulations ended on
July 25, 2006. During the period, OPM received comments from 11 Federal
agencies, five labor organizations, and two individuals.
A number of the comments support OPM's adherence to and adoption of
DoL's language in our regulations and the increased ease of applying
the FLSA to Federal employees. Commenters noted that the added
explanatory materials improved clarity and reduced the potential for
erroneous FLSA exemption determinations.
Respondents also identified areas of concern and provided specific
recommendations to improve the proposed revisions. We addressed those
comments and recommendations beginning with general and/or global
comments, followed by a section-by-section discussion. We also made
minor editorial corrections which do not affect the content of the
regulations.
General Comments
One agency suggested we include a discussion in the preamble
regarding OPM's expectations with regard to how the new regulations
will impact coverage determinations properly made under the previous
regulations.
As indicated in the proposed regulations, with the exception of the
adoption of the revised criteria in the salary basis test, these
changes update and clarify but do not fundamentally change the
regulations in place as applied consistently with controlling case law.
Therefore, we do not anticipate changes in the exemption status of the
vast majority of Federal employees to whom the current regulations were
properly applied.
The proposed regulations eliminated the 80 percent test as a basis
for FLSA coverage. One labor organization commented that the 80 percent
test should remain in the regulations as it permits all employees who
perform significant amounts of non-exempt work to benefit from FLSA
protection. An agency noted that a court or arbitrator often focuses on
the amount of time an employee spends on exempt and closely related
duties in determining if an employee is covered by FLSA regulations.
That agency suggested we include a discussion highlighting the
elimination of the 80 percent test requirement and emphasizing the
potential importance of the amount of time an employee spends
performing exempt functions to support an agency's exemption
determination.
Controlling case law has made retention of the 80 percent
requirement unsupportable. Federal courts have found many employees to
be exempt who spent less than 50 percent of their time performing
exempt work. See, e.g., Jones v. Virginia Oil Co., 69 Fed. Appx. 633
(4th Cir. 2003) (management was found to be the ``primary duty'' of an
employee who spent 75 to 80 percent of her time on basic line-worker
tasks); Murray v. Stuckey's, Inc., 939 F.2d 614 (8th Cir. 1991)
(manager met the ``primary duty'' test despite spending 65 to 90
percent of his time in non-management duties); Glefke v. K.F.C. Take
Home Food Co., 1993 WL 521993 (E.D. Mich. 1993) (employee found exempt
despite assertion that she spent less than 20 percent of time on
managerial duties because ``the percentage of time is not determinative
of the primary duty question, rather, it is the collective weight of
the four factors''); and Stein v. J.C. Penney Co., 557 F. Supp. 398
(W.D. Tenn. 1983) (employee spending 70 to 80 percent of his time on
non-managerial work held exempt because the ``overall nature of the
job'' is determinative, not ``the precise percentage of time involved
in a particular type of work''). See also, Horne v. Crown Central
Petroleum, Inc., 775 F.Supp. 189 (D.S.C. 1991); Donovan v. Burger King,
672 F.2d 221 (1st Cir. 1982); Donovan v. Burger King, 675 F.2d 516 (2nd
Cir. 1982).
One agency asked that we include a discussion regarding the
appropriateness of reviewing the classification of a position in terms
of title, series, and grade, if an FLSA review by a third party reveals
new information that contradicts the current classification. While a
third party review of an FLSA coverage determination may reveal
questions regarding the classification of the employee's work, it is
inappropriate to apply 5 U.S.C. chapters 51 and 53 requirements to the
regulatory process for implementing 5 CFR part 551 for employees under
OPM's FLSA jurisdiction, as these statutory requirements have no
bearing on FLSA exemption determinations.
One agency recommended we revise the work aid, ``How to make
exemption status determinations under the Fair Labor Standards Act
(FLSA)'' to reflect changes made to the regulations. The work aid, now
titled ``Making an FLSA Exemption Status Determination--A Work Aid'' is
found on our Web site at http://www.opm.gov/flsa and will be updated
once the final rule is issued.
[[Page 52754]]
One agency expressed concern that we italicized a term not defined
in the regulations. In this final rule, all terms listed in the
Definitions section at Sec. 551.104 are italicized in the regulations.
Subpart A--General Provisions
Section 551.101--General
One labor organization suggested that DoL's regulations appear to
violate the letter or spirit of the FLSA, and while OPM's
interpretation of the FLSA must be generally consistent with DoL's
interpretation, OPM need not mirror DoL where doing so would violate
the FLSA. We note that the commenter's concern is addressed in Sec.
551.101(c). We also note that DoL's changes have gone through the
Administrative Procedure Act (APA) review and comment process and now
have the force of law. To the extent that OPM's regulations are
consistent with DoL's regulations, OPM does not violate the FLSA;
hence, the labor organization's comment is misplaced. We have provided
examples to the extent we believe necessary to properly apply the
regulations.
One agency recommended we add an explanation that the law does not
require OPM's regulations to comply verbatim with DoL's administration
of the Act. The agency maintains that doing so will alert Code of
Federal Regulations users that while administration of the Act by OPM
and DOL is similar in some aspects, marked differences remain. We
believe the first sentence in Sec. 551.101(c) addresses the agency's
concern regarding marked differences: ``OPM's administration of the Act
must comply with the terms of the Act but the law does not require
OPM's regulations to be identical to the Department of Labor's FLSA
regulations.''
One labor organization commented that this section fails to state
why and when OPM regulations may diverge from DoL regulations, and that
it also fails to clarify that OPM regulations cannot apply FLSA
exemptions more broadly than DoL regulations. Citing a Court of Appeals
ruling that OPM regulations could not make it more difficult for
Federal employees to qualify for overtime than DoL regulations (AFGE v.
OPM, 821 F.2d 761, 771 (D.C. Cir. 1987)), the commenter expressed the
concern that OPM regulations can and should be more specific than DoL
regulations in narrowly defining exemptions. We refer the commenter to
Billings v. U.S., 322 F.3d 1328 (Fed. Cir. 2003), which places the
labor organization's concern in the appropriate context. As stated in
Billings, ``AFGE stands for the unremarkable proposition that, under
the same facts, an employee in federal employment should receive the
same overtime compensation as an employee in the private sector. In
this case, however, the appellants are not employed under the same
facts applicable to the private sector. Appellants as federal
employees, are subject to Title 5 suspensions not present in the
private sector.'' We also note that the Court of Federal Claims in
Adams v. U.S., 40 Fed. Cl. 303 (1998) found OPM's regulation to be
valid despite the fact it did not contain a salary-basis test and,
therefore, was inconsistent with DoL regulations. Rather, the court
held that OPM's regulation was a reasonable interpretation of the FLSA
within the Federal sector.
Section 551.104--Definitions
We received a number of comments regarding the proposed changes we
made to this section. Some respondents had concerns with particular
definitions, while others commented on our decision to move terms from
this section and place them where the concept is addressed in the
regulation.
One agency recommended that in the definitions section, we earmark
those definitions that have been removed and addressed as concepts in
other sections of the provisions. Like DoL, we have moved these terms
and concepts in order to streamline, update, and clarify these complex
regulations, as well as reduce unnecessary duplication and
redundancies. We provided such information in the proposed rules to
alert current users to the change. Therefore, we decline to adopt the
recommendation to cross-reference the location of terms in these final
regulations.
In addition to the general concerns listed above, we received
specific questions relating to the following definitions:
Customarily and Regularly
One agency suggested we clarify the definition to make clear that
tasks occurring on a regular and recurring basis, even if they do not
occur every workweek, meet the definition of the term customarily and
regularly. We did not adopt this suggestion because we do not believe
it adds to the understanding of the term.
One labor organization expressed the concern that changes in the
definition weaken the protections of the FLSA by expanding the
executive exemption criteria at Sec. 551.205. They maintain that
removing the phrase ``day-to-day'' from the definition permits
employees who only occasionally exercise executive discretion to meet
the exemption criteria. These regulations expressly prohibit the
interpretation put forward by the labor organization since the
definition states that the ``frequency must be greater than
occasional'' and `` * * * includes work normally and recurrently
performed every workweek.'' We do not believe exemption criteria for
executives will be expanded and decline to change the definition as
requested.
Discretion and Independent Judgment
One agency was concerned that we removed the definition of this
term when, in fact, we did not. Due to the extensive discussion
regarding the administrative exemption, we placed the term with the
administrative exemption criteria at Sec. 551.206. We have included
the term in alphabetical order in the definition section at Sec.
551.104 with a cross reference to Sec. 551.206.
Educational Establishment
One agency suggested we provide additional information regarding
when a training facility will qualify as an Educational establishment.
Training facilities vary widely within the Federal sector and are found
in a number of different settings. These settings range from Department
of Defense-operated primary and secondary schools and military
technical training schools, to law enforcement training centers and
adult training facilities operated by a variety of Federal agencies.
Because of this wide variability in facilities, we do not believe
further detailed discussion will add materially to a better
understanding of the term.
Exempt Area
In accordance with information obtained from the Department of the
Interior's Office of Insular Affairs, we have added the Commonwealth of
the Northern Mariana Islands, a territory under the jurisdiction of the
United States, to the list of exclusions from the definition of exempt
areas.
FLSA Nonexempt
One agency commented that the terminology related to who is and who
is not covered by the FLSA is confusing. The agency explained that if
the term ``FLSA exempt'' means not covered by the provisions of the
Act, then the term ``FLSA nonexempt'' means FLSA ``not-not covered.''
The agency recommended we replace the term ``FLSA nonexempt'' and
insert a new term ``FLSA covered.'' The commenter noted that exempt
employees are exempt from the
[[Page 52755]]
overtime and minimum wage provisions of the Act. We note that exempt
employees are covered by other provisions of the Act. We decline to
adopt this recommendation since the proposed terminology is
inconsistent with that used by the Department of Labor.
Formulate, Affect, Interpret, or Implement Management Policies or
Operating Practices
One labor organization commented that our definition with respect
to performing work involving management policies or operating
procedures in relation to broad national goals expressed in statutes or
Executive orders is ``overboard,'' as virtually all Government
employees endeavor to comply with broad national goals set by statute
or Executive order. Consequently, the labor organization recommended we
revise the definition to clarify that administrative work involves
compliance only with management's operational policies. We agree with
the labor organization's concern that administrative work involves
compliance only with management's operational policies rather than
compliance with substantive statutes; however, this issue is already
addressed in Sec. 551.206(b)(1) which directs the user to consider if
an employee ``has authority to formulate, affect, interpret, or
implement management policies or operating practices.'' Therefore, we
decline to revise this definition.
Two labor organizations stated that adding the words ``interpret,''
``implement,'' and ``operating practices,'' to the definition broadens
the coverage of the term to be inconsistent with the Act. This
definition is consistent with the current DoL definition and does not
change the underlying meaning of the regulation; therefore, we decline
to revise this definition.
Management
One labor organization suggested changes in the definition are
problematic because the proposed definition eliminates the distinction
between production and support services. We address this distinction in
Sec. 551.206, and we consider its placement there more appropriate
than in the definition of management.
One labor organization suggested we amend the definition to clarify
a team leader does not become exempt merely by apportioning work among
the team members. They recommended we expressly state what the
administrative provision indirectly says in describing which leaders
qualify for exemption. The labor organization asserts that, just as in
the private sector (see 29 CFR 541.203(c)), team leaders are exempt
administrators only if they perform such administration functions as
``acquisitions, negotiating real estate transactions or collective
bargaining agreements, designing and implementing productivity
improvements'' or similar work as specified in Sec. 551.206(i). While
we understand the labor organization's concern regarding the misreading
of apportioning work, we must rely on the reader to understand that
selected phrases of a definition must be read within the context of the
entirety of the regulations, and the full intent of the definition must
be applied. Therefore, we do not find the proposed expanded discussion
to be necessary. Further, we do not agree with the commenter's
characterization of Sec. 551.206(i). Team leaders who lead major
projects and who function as an extension of management for matters of
significance to the employer are likely to meet the administrative
exemption. Section 551.206(i) must be read in conjunction with Sec.
551.206(b)(2) (i.e., an employee may carry out major assignments in
conducting the operations of the organization), which does not limit
exemption to leading staff functions.
Nonexempt Area
In accordance with information obtained from the Department of the
Interior's Office of Insular Affairs, we have added the Commonwealth of
the Northern Mariana Islands, a territory under the jurisdiction of the
United States, to the list of nonexempt areas.
Primary Duty
One agency recommended we add to this definition the requirement
that a duty must occupy at least 25 percent of the employee's time.
This definition, for the most part, is carried over from our previous
regulation with specific requirements to ensure that users do not focus
on a very small percentage of time when it would be highly unlikely
that the duty would support the basis for primary duty. The definition
is consistent with the discussion of the 80 percent test in the General
Comments section of this preamble. Therefore, we decline to adopt this
recommendation.
Recognized Organization Unit
One labor organization viewed the definition of recognized
organizational unit as problematic because it suggests even a team
leader with little actual supervisory function can be considered the
lead of a recognized organizational unit. The labor organization
maintained the definition should clearly state that a recognized
organizational unit does not consist of temporary units whose
composition or purpose is constantly in flux. We believe the definition
fully addresses these concerns. Again, we must rely on the user to
understand that recognized organizational unit must be read in
conjunction with the other criteria under the executive exemption at
Sec. 551.205 (i.e., a leader will not meet the executive exemption if
that employee does not exercise the full range of management and work
control responsibilities required to meet the requirements of this
section).
Trainee
One agency recommended we further clarify the definition by
supplementing it with additional work examples and illustrations. The
agency believes the revised definition of ``trainee'' at paragraphs (1)
through (5) implies application to certain employment categories/
classifications operative in Federal service. We believe the definition
makes clear that a student officially appointed to a Government
position is not a trainee for purposes of the FLSA. The definition of
trainee for purposes of the FLSA is materially different from the
meaning of ``trainee'' for many purposes of title 5, U.S.C., and
similar human resources statutes.
Worktime
One labor organization suggested that, assuming removal of the 80/
20 test is warranted, OPM should delete as superfluous the Sec.
551.104 definitions relating to ``worktime.'' They also suggested we
remove the word ``worktime'' from Sec. 551.101(a), as that paragraph
contains no substantive content, but merely refers to the FLSA's
delineation of ``administrative procedures by which covered worktime
must be compensated.'' The labor organization maintains that OPM should
replace the word ``worktime'' with the statutory phrase to refer to
FLSA delineation of procedures for compensating ``hours of work.'' The
labor organization is of the opinion that such a change would harmonize
with DoL's regulations. We made no substantive change in the definition
of worktime itself because these regulations are intended to address
FLSA coverage issues and not hours of work. Definitions relating to
worktime are not used in defining hours of work but are used solely in
determining FLSA exemption status; therefore, we decline to make this
change.
[[Page 52756]]
Subpart B--Exemptions and Exclusions
We received several requests to move the sections on specific
professional exemptions from the end of subpart B and place them
directly following the professional exemption criteria in this section.
Based on these comments, we have reordered the sections, and in this
final rule, those sections formerly numbered Sec. Sec. 551.214 through
551.216 in the proposed rule, containing information relating to
specific professional exemptions, have been placed directly behind
Sec. 551.207 Professional exemption criteria and renumbered as
Sec. Sec. 551.208 through 551.210. The remaining sections have been
renumbered accordingly.
Section 551.201--Agency Authority
One labor organization suggested this section (as well as Sec.
551.202) would be strengthened if it emphasized reasonable doubt
regarding exemption status should be resolved in favor of nonexemption.
This concern is addressed by Sec. 551.202(d) which states, ``If there
is a reasonable doubt as to whether an employee meets the criteria for
exemption, the employee will be designated FLSA nonexempt.''
Section 551.202--General Principles
We received several comments regarding revised paragraph (e), which
clarifies that the designation of an employee as FLSA exempt or
nonexempt ultimately rests on the duties actually performed by the
employee. The occupational or organizational title alone is not
sufficient for an FLSA exemption status determination.
Three agencies commented on the requirement that the designation of
an employee as FLSA exempt or nonexempt ultimately rests on the duties
actually performed by the employee. We fully agree that the coverage
determination must be based on the actual work performed by the
employee. The protective nature and purpose of the FLSA requires
agencies to assure such accuracy on a continuing basis. The same
responsibility holds true for existing and newly established positions.
While we appreciate the recommendations received to clarify this
section, we have concluded that our statement at Sec. 551.202(e) will
make the requirements clear to those who apply these regulations; we do
not believe any additional guidance is required.
One agency disagreed with our statement at Sec. 551.202(e) that
``established position descriptions and titles may assist in making
initial FLSA exemption determinations'' and saw no need for further
review if a position description accurately describes the duties
performed by the employee. Additionally, the agency questioned how
exemption status is determined for newly established unencumbered
positions and questioned whether proposed duties should be used to make
an FLSA coverage determination. Finally, the agency recommended adding
to the end of this section, ``on a regular and recurring basis over a
period of more than 30 consecutive calendar days.'' We understand the
commenter's concern about making an FLSA coverage determination on
newly established positions. In such cases, the determination must be
based on the description of work because no employee is actually
performing the work. However, once an employee is placed in the
position, the agency is responsible for ensuring that the FLSA
designation is accurate and remains accurate, based upon the actual
work performed by that employee. Thus, we decline to insert the
proposed phrase.
One agency found the second sentence of Sec. 551.202(f) difficult
to understand. We did not propose changes to this section. The purpose
of this section is to recognize that employees may perform a
combination of exempt duties and may qualify for exemption. While one
of the exemption criteria may not be met in its entirety, the work may
meet another which serves as the basis for the exemption determination.
To respond to the request for clarification and to further harmonize
with DoL's regulations at 29 CFR 541.708, we have amended Sec.
551.202(f) to explain that an employee whose primary duty involves a
combination of exempt administrative and exempt executive work may
qualify for exemption; i.e., work that is exempt under one section of
this part will not defeat the exemption under any other section.
One labor organization had concerns with the first sentence of
Sec. 551.202(h) in the proposed rule which read: ``Although it is
normally feasible and more convenient to identify the exemption
category, this is not essential.'' They stated that while an employee's
primary duty may involve two categories which are intermingled and
difficult to segregate, an employer always bears the burden of
establishing the basis for an exempt classification. The labor
organization maintained that OPM should adhere to the principle that
employers must identify any and all exemption categories used to exempt
a particular job. We did not propose a change to this section. The
first sentence of Sec. 551.202(h) accurately covers, for example, the
professional employee who may also meet the executive exemption. In
this case it would not be necessary to identify which one of the two
served as the specific basis for the exemption determination because
both exemptions would apply. However, to clarify this concept, we have
revised the first sentence to read, ``Although it is normally feasible
and more convenient to identify a single exemption category, this is
not always appropriate.'' We have also added a sentence at the end of
Sec. 551.202(h) to require that, ``The agency is responsible for
showing and documenting that the work as a whole clearly meets one or
more of the exemption criteria.''
Section 551.203--Salary-Based Nonexemption
A number of commenters opposed our adoption of DoL's $23,660
minimum salary level test as a nonexemption threshold. One labor
organization requested we provide a reasoned explanation for the change
in our position after previously rejecting a salary test as ill-suited
for use with the Government's classification system. This labor
organization, along with another labor organization, stated that OPM is
not bound by law to adopt DoL's approach to this issue, since Federal
salaries are not impacted by the large retail sector that DoL must
consider in making rules, and therefore, few Federal employees would
benefit from this salary level test. OPM regulations governing the
Federal sector must be as consistent as practicable with DoL's
regulations governing the private sector.
Many positions previously covered by the unitary general schedule
(GS) system are now covered by alternative pay systems. The GS system
to which our previous regulations were linked no longer covers large
numbers of Federal employees under OPM's FLSA jurisdiction. Further, it
is contemplated that additional groups of Federal employees may be
removed from coverage under the GS system in the future. Therefore,
direct linkage to GS grade levels is of diminishing utility to the FLSA
exemption determination process. Furthermore, concerns that lower
graded nonsupervisory employees who meet the minimum salary level
threshold will become exempt are misplaced. As noted in Sec.
551.204(a), nonsupervisory clerical and lower-graded technical
employees will remain nonexempt because they will not meet any of the
exemption criteria.
When the FLSA was extended to the Federal sector in 1974, GS-5 and
GS-6 supervisory positions exceeded the minimum salary level test. In
December
[[Page 52757]]
1997, OPM issued subsequent regulations (see 62 FR 67238, December 23,
1997). At that time, all supervisory GS-5 and GS-6 positions still
received annual salaries substantially higher than the minimum salary
level test. These positions, and prevailing rate first-level
supervisory positions, were also affected by the 80 percent test. These
conditions made use of the minimum salary level test in 1974 and 1997
moot.
As discussed in the General Comments section of this preamble, we
are no longer using the 80 percent test based on controlling case law.
Also, DoL raised the minimum salary test to the point where some
nonappropriated fund instrumentality positions might meet the executive
exemption test, but would fail to meet the minimum salary threshold of
$23,660. In adopting the minimum salary test, these lower-salaried
employees will continue to have their nonexempt status protected,
thereby assuring a result consistent with DoL's regulations. The fact
that a small number of positions are affected does not diminish our
responsibility to ensure these employees receive any and all
protections afforded by the Act and its implementing regulations.
Nevertheless, we view this minimum salary threshold as transitory and
believe it will likely become obsolete given the small number of
employees potentially affected at the present time, and the likely
continued rise in Federal salary rates.
One labor organization expressed concern regarding OPM's use of the
annual figure that DoL adopted for the private sector without reference
to salary data from the Federal sector. One agency suggested that
rather than show a specific rate of basic pay due to changes in cost of
living and impacts of inflation, we should refer users to a Web site
for current thresholds. OPM regulations governing the Federal sector
must be as consistent as practicable with DoL's regulations governing
the private sector. Therefore, we decline to make any changes.
One agency suggested OPM use the term ``total adjusted salary'' or
``adjusted basic pay'' in place of ``rate of basic pay'' to clarify the
rate of pay being used for comparison purposes. We have not adopted the
suggested terms and will continue to use ``rate of basic pay'' which is
defined in Sec. 551.203(b) to include locality pay and certain similar
supplements.
The same agency also recommended we provide an explanation at Sec.
551.203(a)(3) as to why only a `` * * * professional in the practice of
law or medicine as prescribed in paragraphs (c) and (d) of Sec.
551.208,'' is not covered by the salary-based nonexemption. We changed
the language to be consistent with DoL's longstanding exclusion from
the salary test of employees who hold a valid license or certificate
permitting the practice of law or medicine, or any of their branches,
and who are actually engaged in the practice thereof. This exclusion
also applies to employees who hold the requisite degree for the general
practice of medicine and who are engaged in an internship or residency
program pursuant to the practice of a profession. See 29 CFR 541.600.
We also note that such positions in the Federal Government receive
compensation well in excess of the minimum salary level test.
Section 551.204--Nonexemption of Certain Employees
One labor organization suggested we remove the first word
``certain'' in Sec. 551.204(a), as it is unnecessary and confuses the
meaning of the section. We disagree. Removal of the word ``certain''
from this section would overly broaden the category of nonexempt
nonsupervisory white-collar employees. For this reason, we have not
adopted the suggestion.
One labor organization commented that the removal from the
regulations of the statement that, ``A supervisory employee in the
Federal Wage System or in other comparable wage systems is exempt only
if the employee is an executive employee....,'' expands the exemption,
may even implicitly suggest that all supervisory employees should be
exempt, and is contrary to the FLSA. The labor organization contends
these regulations should include a passage regarding the nonexemption
of FWS supervisory employees. We find that the inclusion of the
suggested language would be superfluous. As stated in Sec. 551.202(a),
an employee is presumed to be FLSA nonexempt unless the employing
agency correctly determines that the employee clearly meets one or more
of the exemption criteria. Therefore, agencies are obligated to fully
apply the executive exemption criteria to all supervisory positions to
determine if they are exempt.
One agency suggested we amend Sec. 551.204(a)(2) to include
language to address pay banding systems. The agency recommended we add
a particular pay band level that, in their agency, is equivalent to the
GS-9 level. This assumes most agencies will band grades in the same
manner as the commenting agency. As agencies generally establish their
own pay banding schemes, our regulations permit each agency to
determine which of its bands is equivalent to a particular level. For
this reason, we have not adopted the suggestion.
Section 551.205--Executive Exemption Criteria
One agency noted that there is no mention of work-planning and
assignment responsibilities, and only a small number of personnel
authorities are mentioned. The agency suggested that in the final
regulations, we provide language to: (1) Clarify the importance of
work-planning and assignment responsibilities in meeting the exemption
criteria; and (2) clarify whether the few personnel activities
mentioned in Sec. 551.205 are more critical to meeting the exemption
criteria than are the others mentioned in the definition of the term
``management'' in Sec. 551.104. The commenter noted that a floor is
established by the specifics in Sec. 551.205(a)(2). We note this floor
is expansive and links back directly to the term ``management'' as
noted in Sec. 551.205(a) and defined in Sec. 551.104, and is not
limited to hiring, firing, advancement, and promotion, but also
pertains to any other change of employee status. Therefore, while some
employees covered by the executive exemption may not perform each and
every activity listed under ``management,'' there is an expectation
that they will perform the functions listed under Sec. 551.205(a)(2).
We decline to make the suggested change.
One labor organization voiced concern that we removed the
requirement for executives to regularly exercise discretion and
independent judgment, or spend 80 percent of their time on
``supervisory and closely related work.'' The labor organization
requested we clarify that executives necessarily exercise the type of
``discretion and independent judgment'' that the role explicitly
requires. As recognized by the labor organization in their comments, we
have included in the definition of primary duty the requirement to
exercise discretion and independent judgment, and the definition of
management illustrates how this judgment is applied. This issue is
adequately addressed in Sec. 551.104 of this regulation; therefore, we
have not made the requested change.
One agency commented that in Sec. 551.205(a)(1), there may be
situations where a supervisor, as a regular and recurring part of his
or her job, may supervise only one employee. They further commented
that the General Schedule Supervisory Guide (GSSG) does not require a
minimum number of subordinates for a position to be classified as
supervisory. As noted previously in this preamble, the
[[Page 52758]]
definition of ``supervisor'' for purposes of chapters 51 and 53 of
title 5, U.S. Code, is separate and distinct from the definition for
purposes of applying the FLSA.
One labor organization stated that the ``scope of direction''
element in Sec. 551.205(a)(1) is too wide, and further commented that
permitting exemption for employees who direct a mere two other persons
far exceeds the purpose of the executive exemption. The labor
organization contended that the proposed regulations more closely
describe a group leader or working supervisor rather than an executive,
and that a true executive position is one with a broader scope of
control covering at least five full-time employees. We must reject the
labor organization's request to increase the number of employees
directed, given that this language is substantively the same as the
existing regulations and consistent with DoL's regulatory language.
Regarding the term ``particular weight'' in Sec. 551.205(b), one
agency indicated it has a number of locations where supervisors direct
the work of different groups of employees each day, because operations
not only occur 24 hours per day, but also in several different stations
within one location. Additionally, performance ratings may be created
by a group of supervisors who together may have supervised each of the
rated employees, but who may have not supervised the same group of
employees on each workday and shift worked. The agency requested
additional information regarding the impact on whether or not an
employee can be an exempt executive if she or he supervises a variety
of individuals over the course of the workweek and recommends personnel
actions on the basis of consulting with other supervisors, all of whom
also supervise the same group of employees on different days or shifts.
We believe this issue is adequately addressed in Sec. 551.104 under
the term ``recognized organizational unit'' in paragraph (3). In
addition, the general human resources practice of designating an
official supervisor of record, with specific delegations of
responsibility, facilitates the application of these FLSA requirements.
Section 551.206--Administrative Exemption Criteria
We received a number of questions and concerns from agencies and
labor organizations regarding the interpretation and application of the
administrative exemption criteria. Changes were made to this section
largely to harmonize with DoL changes in the description of
administrative work and to add examples of specific types of work
performed in the Federal Government.
One labor organization requested we insert the express comparison
between staff service or support work as distinguished from production
or line work. The labor organization maintains that we could avoid any
confusion by reinserting language from the definition of Management or
general business functions or supporting service in the prior
regulations. We do not agree with the labor organization's
recommendation to reinsert language from the definition in the prior
regulations. However, to further clarify the distinction between staff
and line work, we revised Sec. 551.206 by inserting ``, as
distinguished from production functions,'' after the word
``operations'' in the first sentence.
One agency suggested we add language to define the minimum level of
immediate guidelines and supervision needed to constitute discretion
and independent judgment. We believe the examples in Sec. 551.206(b)
provide adequate context for applying the concept of discretion and
independent judgment.
Two labor organizations had concerns with the concept of employees
having the authority to formulate, affect, interpret, or implement
management policies or operating practices. One of the labor
organizations expressed concern that the application of Sec.
551.206(b)(1) will exempt employees who should not be exempt,
contending that many nonsupervisory white-collar employees perform work
that requires them to implement or interpret management policies and
operating practices with respect to mission-critical activities, yet
their work is indisputably of a routine nature. One labor organization
viewed the definition as being overly expansive. We believe the factors
provided in Sec. 551.206(b) provide adequate context for applying the
concept of discretion and independent judgment. In addition, Sec.
551.206(e) makes clear that work of a routine nature will not meet the
administrative exemption. The terminology we adopted is consistent with
DoL's regulations (see 29 CFR 541.202(b)). We believe that when read
and applied in the context of the regulations as a whole, the language
is not overly broad. Therefore, we decline to modify our language.
One agency suggested we provide an example of an exempt Federal
administrative employee who would be involved in performing exempt
administrative work for the employing agency's customers. We believe
that Sec. 551.206(h) already provides an adequate description of this
type of exempt work. Therefore, we decline to accept this suggestion.
Two agencies suggested we clarify what constitutes ``matters of
significance'' by adding language to clarify the scope and effect of
the work and adding a definition of the term. We believe we have
explained the intent of the Act by the examples provided throughout
Sec. 551.206. In this regard, we have aligned with DoL's approach by
describing relevant factors to consider in making the appropriate
exemption determination.
One labor organization asserted that in trying to address duties
performed by employees who support workers on the production side in
Sec. 551.206(h), we omitted the requisite language distinguishing
administrative staff who provide operational support from nonexempt
employees working on the production end. They contend that, as
proposed, the paragraph creates confusion by referring to employees who
support line managers without offering examples of nonexempt line or
production duties. We agree with the comment and have added
clarification at the end of Sec. 551.206(h) by inserting examples of
investigative work that may either be exempt or nonexempt depending on
whether it is performed as a line or staff function.
One labor organization expressed concern that the proposed
regulations at Sec. 551.206(h) may weaken the line versus staff
dichotomy and by doing so, may upset decades of court precedent
regarding this feature of the administrative exemption. We do not agree
with the labor organization's concern, as our illustrations are
consistent with case law. We reference Piscione v. Ernst & Young, 171
F.3d 527 (7th Cir. 1999) for discussion of when advisory and program
development work that affects management policy and internal operations
of client organizations is administratively exempt.
One agency commented that Sec. 551.206 should provide information
regarding OPM's expectations about the coverage or exemption of those
performing a supporting service under the revised regulations. The
concept of administratively exempt work can be found at Sec.
551.206(h).
Several commenters remarked that the guidance provided on team
leaders in Sec. 551.206(i) is unclear. One agency commented that where
project examples are provided, the decision as to whether or not the
team leader was exempt seemed to be based on the types of projects led,
thereby necessitating a
[[Page 52759]]
decision on the relative worth of the projects, rather than on the team
leader's responsibilities. One labor organization expressed concern
that the examples provided are not found in DoL's regulations on team
leaders, thereby making it difficult to ascertain precisely how or when
these activities could be considered major projects. The labor
organization suggested that, to avoid imposing an overly broad
definition of ``team leader,'' these examples should be removed or the
provision should make clear that reviews or investigations do not
constitute examples of major projects unless they involve the exercise
of discretion and independent judgment. Another labor organization
shared the concern that Sec. 551.206(i) could drastically broaden the
executive exemption, in that paragraph (i) appears to describe a
working supervisor more closely than an administrator. The labor
organization suggested removal of this paragraph from the regulations.
To clarify the intent of Sec. 551.206(i), we have added an example of
a lead auditor who would meet the administrative exemption.
One labor organization commented that the definition of management/
program analysts in Sec. 551.206(l) seems to suggest that any employee
who engages in the study of the operations of an organization or a
program has a primary duty that is directly related to the management
or general business operations of the employer. They suggest that OPM
clarify that an employee must have as his or her primary duty the study
of such operations, as well as the recommending of changes to
operations. They further suggest OPM clarify that employees in this
position do not necessarily meet the requirement that they exercise
discretion and independent judgment on matters of significance. We do
not believe these revisions are necessary, as Sec. 551.206 makes clear
what should be considered in determining an employee's primary duty. In
addition, Sec. 551.206(l) is to be applied within the entirety of the
administrative exemption criteria, which are applicable only when the
employee's work entails the exercise of discretion and independent
judgment on matters of significance.
One agency recommended that OPM clarify what constitutes ordinary
inspection work at Sec. 551.206(n) and explain what the statement,
``They have some leeway in the performance of their work but only
within closely prescribed limits'' means. We decline to add language,
as we believe Sec. 551.206(n) is sufficiently clear as written.
Section 551.208--Learned Professionals
As stated earlier in this preamble, we reordered subpart B of the
final regulations. Consequently, Sec. 551.208 in the final regulations
corresponds to Sec. 551.214 in the proposed regulations.
One labor organization expressed numerous concerns regarding our
treatment of learned professionals. They suggest that the proposed
regulations neglect to emphasize that, with rare exceptions, learned
professionals must have advanced degrees to succeed in their field.
This labor organization maintained that in explaining the impact of the
word ``customarily,'' the proposed regulations permit exemption of
individuals who perform substantially the same work as degreed
employees, without making clear how rarely employees attain such
positions without advanced degrees. These proposed regulations are
consistent with existing 5 CFR 551.207(a)(1). The work requires the
application of knowledge customarily and characteristically acquired
through education or training that meets the requirements for a
bachelor's or higher degree. However, in an effort to address the labor
organization's concerns, we have modified the language at Sec.
551.208(a)(3) to emphasize the infrequency of employees attaining
professional positions without advanced degrees.
The same labor organization expressed concern regarding Sec.
551.208(b), maintaining it provides management with the ability to seek
new learned professions whenever a school creates a new advanced
degree. They requested this section be removed. Discussion of the
expansion of professions in Sec. 551.208(b) is consistent with 29 CFR
541.301(f); therefore, we decline to eliminate the section.
This labor organization also commented that the description of the
accounting profession provided at Sec. 551.208(e) is ambiguous and
uses equivocating language. Our description is consistent with 29 CFR
541.301(e)(5); therefore, we decline to change the regulations.
One agency and two labor organizations raised concerns regarding
misapplication of the engineering profession at Sec. 551.208(f). One
labor organization stated that the portion of Sec. 551.208(f)
concerning engineering technicians should be entirely removed. We have
revised the language to clarify that engineering technicians
infrequently perform exempt work.
One individual commented that, in the private sector, registered
nurses paid on an hourly basis are nonexempt and therefore entitled to
overtime pay under FLSA. The commenter suggests if OPM considers
registered nurses exempt based on meeting the duties requirement
without considering the salary test, then Federal Registered nurses are
at a disadvantage. In this regard, the individual objected to Sec.
551.208(j) which reads, ``Registered nurses who are registered by the
appropriate State examining board generally meet the duties
requirements for the learned professional exemption.'' We believe these
concerns are misplaced. Section 551.208(j) must be read in conjunction
with the salary-based nonexemption at Sec. 551.203. Registered nurses
paid on an hourly basis will not meet the annual pay basis requirements
of Sec. 551.203(a) because the exemption only applies to employees
paid on an annual pay basis. Therefore, such employees will be
nonexempt.
Section 551.210--Computer Employees
As stated earlier in this preamble, we reordered subpart B of the
final regulations. Accordingly, Sec. 551.210 in the final regulations
corresponds to Sec. 551.216 in the proposed regulations.
One agency recommended renaming this section ``Information
Technology employees'' to remain consistent with how Federal
classification standards refer to these positions. Section 13(a)(17) of
the Act specifically addresses computer occupations, as do DoL's
implementing regulations in 29 CFR part 541, subpart E. As noted
previously in this preamble, Federal position classification and job
grading laws and regulations do not control FLSA definitions.
Therefore, we decline to accept this recommendation.
One agency and one labor organization found the intermingling of
the computer exemption under sections 13(a)(1) and 13(a)(17) of the Act
confusing. We believe that Sec. 551.210 is sufficiently clear as
written. Further, our description is consistent with 29 CFR 541.400;
therefore, we decline to change the regulations.
One labor organization raised concerns regarding proposed Sec.
551.210(d), where we state that certain employees meeting exemption
under section 13(a)(17) of the Act may also have executive and
administrative duties which qualify the employees for exemption under
executive and administrative exemption rules as well. The labor
organization maintained that it is unclear how these same employees
could also have executive or administrative work as their primary duty,
unless their computer functions completely overlap with executive or
administrative work. They further maintained that if such overlapping
of
[[Page 52760]]
duties occurred, the executive and administrative rules would add
nothing to the designation of these employees as FLSA exempt or
nonexempt. As discussed in connection with Sec. 551.202(h), agencies
are responsible for showing and documenting that an employee's work as
a whole clearly meets one or more of the exemption criteria. We decline
to change this language.
Section 551.211--Effect of Performing Different Work or Duties for a
Temporary Period of Time on FLSA Exemption Status
As stated earlier, we reordered subpart B of the final regulations.
As a result, Sec. 551.211 in the final regulations corresponds to
Sec. 551.208 in the proposed regulations. We also renamed the section
to more appropriately reflect the intent of Sec. 551.211.
Several labor organizations raised the same concerns regarding the
30-day test that OPM addressed in the General Comments section of the
1997 regulations (see 62 FR 67238). We responded to this issue at that
time, and our response remains the same. The 30-day test is well-
established and has been unchanged in OPM regulation since January
1988. At that time, OPM made clear the extent of an agency's
responsibilities regarding an employee who must temporarily perform
work or duties that are not consistent with the primary or grade-
controlling duty of his or her official position description.
Two agencies expressed concern with, and questioned the intent of,
this section. One agency suggested that if a temporary assignment is
expected to last beyond 30 days, the agency should, as good management
practice, determine the exemption status of the employee at the
beginning of the temporary assignment. This agency maintained that it
is not practical or fair for an agency to pay an employee overtime
under FLSA rules during the first 30 days of an assignment, while
knowing that an exempt assignment will last beyond the 30 days, and
then have to require the employee to repay the overtime. The other
agency raised similar concerns. The intent of Sec. 551.211(d) is to
deal with situations where management is unclear regarding the duration
of an assignment. We decline to amend this portion of the regulations.
Section 551.213--Exemption of Employees Receiving Availability Pay
As stated earlier in this preamble, we reordered subpart B of the
final regulations. Consequently, Sec. 551.213 in the final regulations
corresponds to Sec. 551.210 in the proposed regulations.
At the request of an agency, we have amended Sec. 551.213(a) to
include the statutory provision under which employees are exempted from
FLSA coverage by receiving availability pay.
The same agency commented that we should include a note in Sec.
551.213(b) that positions formerly classified as pilots at the U.S.
Customs Service are now identified at the U.S. Customs and Border
Protection (CBP) as CBP Air Interdiction Agents, GS 1881. As the
statutory requirements of 5 U.S.C. chapter 51 are not controlling in
applying the FLSA, we decline to amend the regulations to cite specific
position titles. We have changed the agency name in the regulations
from U.S. Customs Service to U.S. Customs and Border Protection.
Section 551.214--Statutory Exclusion
As stated earlier, we reordered subpart B of the final regulations.
Accordingly, Sec. 551.214 in the final regulations corresponds to
Sec. 551.211 in the proposed regulations.
One agency suggested that the regulations should cite the statutory
and regulatory provisions regarding customs officers covered by 19
U.S.C. 267 rather than attempt to list all the covered titles. We agree
and have amended the regulations to delete reference to specific
titles.
Section 551.215--Fire Protection Activities and 7(k) Coverage for FLSA
Pay and Exemption Determinations
As stated earlier, we reordered subpart B of the final regulations.
Consequently, Sec. 551.215 in the final regulations corresponds to
Sec. 551.212 in the proposed regulations.
We received numerous comments from a labor organization questioning
and speculating on why we added this section. This labor organization
expressed concern that the firefighter definition in 5 CFR 550.1302
will be altered by issuance of this regulation. They maintain the
existing firefighter definition is adequate, and this rule may make
interpretation of section 7(k) of the Act in the Federal sector more
complex. In addition to this labor organization's comments, two
agencies raised concerns regarding the effect of these regulations on
wildland firefighters. These comments indicate that further
clarification is required.
This section pertains to two distinct topics: fire protection
activities and coverage under the section 7(k) provisions of the Act.
The revised regulations continue OPM's longstanding policy that the
section 7(k) provisions are not automatically applied to all employees
who perform fire protection activities. OPM rules provide that the
section 7(k) provisions are applied only to employees receiving certain
types of premium pay associated with extended tours of duty. For
example, section 7(k) is applicable to a fire protection employee only
if he or she receives annual premium pay under 5 U.S.C. 5545(c)
(usually standby duty pay under (c)(1)) or firefighter's compensation
under 5 U.S.C. 5545b. These premium payments apply to firefighters who
have extended tours, usually including 24-hour shifts.
Wildland firefighters are not covered by the regulatory provisions
for section 7(k) employees at Sec. 551.541. This matter was clarified
in the regulations in 1976, and wildland firefighters who do not
receive the specific types of premium payments under Sec. Sec.
551.501(a)(1) and (5) will continue to be covered by section 7(a) of
the Act under these regulations. We have modified Sec. Sec. 551.215(a)
and 551.541(a) in the final regulations to better align it with this
section of the regulation.
One labor organization provided a number of comments in response to
the establishment of this section. The labor organization commented
that OPM's inclusion of fire inspections among the list of fire
protection activities at Sec. 551.215(b) is confusing, suggesting it
may lead to the erroneous conclusion that employees who solely perform
fire inspections are engaged in fire protection activities under
section 7(k). We note that the proper interpretation of Sec.
551.215(b) is predicated upon reading it within the entirety of Sec.
551.215. The labor organization's concern is best addressed by reading
Sec. 551.215(b) in conjunction with Sec. 551.215(d)(2). Nevertheless,
to clarify this section, we have changed Sec. 551.215(b) by adding
``by trained firefighters eligible for reassignment to fire control and
suppression or prevention duties'' in the clause dealing with
inspections.
The labor organization commented that OPM is obligated at Sec.
551.215(b) to comply with DoL's interpretation of the application of
section 7(k) to emergency medical service (EMS) personnel as set forth
in 29 CFR 553.215(b). The section cited in the labor organization's
comment addresses ambulance and rescue service employees of public
agencies subject to the Act prior to the 1974 amendments. We therefore
assume this comment is misplaced and intended to reference 29 CFR
553.215(a). Our proposed and final regulations are consistent with the
pertinent DoL regulations at 29 CFR
[[Page 52761]]
553.215(a); therefore, we decline to change this section.
This labor organization requested modification of Sec.
551.215(c)(2) and (3) to include all the necessary requirements, for
example, that the temporary employee be hired by a fire department,
that he or she be trained in fire suppression, and that he or she
actually perform fire suppression activities. This labor organization
also suggested that OPM remove Sec. 551.215(c)(4) entirely,
maintaining the section neither complies with the FLSA nor conforms
with DoL's interpretation of the FLSA. The labor organization referred
to 29 U.S.C. 203(y), stating DoL's regulations define employees in fire
protection activities. They further relied on AFGE v. OPM, 821 F.2d
761, 770 (D.C. Cir. 1987) in asserting we must change our regulations
``in a manner consistent with the Secretary of Labor's implementation
of the Fair Labor Standards Act.''
We agree that OPM's regulations should be consistent with the
statutory definition of ``employee in fire protection activities'' in
section 3(y) of the FLSA (29 U.S.C. 203(y)). We have modified proposed
paragraphs (b), (c), and (d) of Sec. 551.215 accordingly.
Section 551.216--Law Enforcement Activities and 7(k) Coverage for FLSA
Pay and Exemption Determinations
As stated earlier, we reordered subpart B of the final regulations.
As a result, Sec. 551.216 in the final regulations corresponds to
Sec. 551.213 in the proposed regulations.
One labor organization and one agency objected to what they
construed as applying section 7(k) to correctional officers and
requested that the regulations explicitly state that such employees
will not be subject to section 7(k) of the Act. This section of the
regulations pertains to two distinct topics: law enforcement activities
and coverage under section 7(k) provisions of the Act. The revised
regulations continue OPM's longstanding policy that the section 7(k)
provisions are not automatically applied to all employees who perform
law enforcement activities. OPM rules provide that the section 7(k)
provisions are applied to employees receiving certain types of premium
pay. For example, section 7(k) is applicable to a law enforcement
employee if he or she receives annual premium pay under 5 U.S.C.
5545(c)(1) for regularly scheduled standby duty, or under 5 U.S.C.
5545(c)(2) for substantial amounts of irregular, unscheduled overtime
work which cannot be controlled administratively.
One agency objected to the differences between the definition of
law enforcement activities for FLSA purposes, and the statutory
definition of ``law enforcement officer'' (LEO) for retirement purposes
in 5 U.S.C. chapters 83 and 84. The agency's objections emphasized that
such a distinction undermines the long-standing determination that LEO
retirement coverage extends to all employees who work within its
correctional facilities. As discussed earlier, just as it is
inappropriate to apply 5 U.S.C. chapters 51 and 53 definitions to terms
used in the FLSA, the same holds true for the statutory definition of
LEO in 5 U.S.C. chapters 83 and 84; that definition is not controlling
in defining ``law enforcement officers'' for purposes of the FLSA.
One individual stated the partial listing of positions contained in
Sec. Sec. 551.216(c)(2) through (6) is misleading and will result in
officers being inappropriately characterized as not qualifying. We note
the examples provided are not exhaustive. They are meant to supplement,
not take the place of, Sec. 551.216(b). The use of these examples is
consistent with DoL's regulations at 29 CFR 553.211(c). Therefore, we
decline to adopt the suggestion to remove paragraphs (c)(2) through
(6).
Subpart E--Overtime Pay Provisions
While not included in the proposed regulations, Sec. 551.541 has
been modified to align the language with new Sec. Sec. 551.215(a) and
551.216(a), which now make clear that not all fire protection and law
enforcement employees, respectively, are covered by section 7(k) of the
Act. To avoid confusion, we have deleted from Sec. 551.541(a) the
language referring to employees not covered by section 7(k) so that
Sec. 551.541 deals solely with section 7(k) employees. Additionally,
Sec. 551.541(b) has been revised for continuity with Sec. 551.541(a).
Subpart F--Child Labor
In the proposed regulations we added paragraph (c) to Sec. 551.601
in order to define hazardous Federal fire protective activities for
individuals under 18 years of age. No comments were received in
response to this addition. We are adopting the proposed language as
final.
Subpart G--FLSA Claims and Compliance
In this subpart of the proposed regulations, we clarified in Sec.
551.702(c) that the claimant is responsible for retaining documentation
to establish when a claim is received; in Sec. 551.705(b) we corrected
the reference from paragraph (b) to paragraph (c); and in Sec.
551.707(a) we clarified that OPM may grant a request from a claimant to
withdraw his or her claim. No comments were received in response to
these revisions; therefore, we are adopting the proposed language as
final.
E.O. 12866, Regulatory Review
The Office of Management and Budget has reviewed this rule in
accordance with E.O. 12866.
Regulatory Flexibility Act
OPM has determined that these regulations will not have a
significant economic impact on a substantial number of small entities
because they apply only to Federal agencies and employees.
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)
This regulatory action will not impose any additional reporting or
recordkeeping requirements under the Paperwork Reduction Act.
E.O. 12988, Civil Justice Reform
These regulations are consistent with the requirements of E.O.
12988. The regulations clearly specify the effects on existing Federal
law or regulation; provides clear legal standards; has no retroactive
effects; specifies procedures for administrative and court actions;
defines key terms; and is drafted clearly.
E.O. 13132, Federalism
OPM has determined these regulations will not have Federalism
implications because they apply only to Federal agencies and employees.
The regulations will not have financial or other effects on States, the
relationship between the Federal Government and the States, or the
distribution of power and responsibilities among the various levels of
government.
Unfunded Mandates
These regulations will not result in the expenditure by State,
local, or tribal governments of more than $100 million annually. Thus,
no written assessment of unfunded mandates is required.
List of Subjects in 5 CFR Part 551
Government employees, and Wages.
U.S. Office of Personnel Management.
Linda M. Springer,
Director.
0
Accordingly, OPM is amending 5 CFR part 551 as follows:
[[Page 52762]]
PART 551--PAY ADMINISTRATION UNDER THE FAIR LABOR STANDARDS ACT
0
1. The authority citation for part 551 continues to read as follows:
Authority: 5 U.S.C. 5542(c); Sec. 4(f) of the Fair Labor
Standards Act of 1938, as amended by Pub. L. 93-259, 88 Stat. 55 (29
U.S.C. 204f).
0
2. Revise subpart A to read as follows:
Subpart A--General Provisions
Sec.
551.101 General.
551.102 Authority and administration.
551.103 Coverage.
551.104 Definitions.
Subpart A--General Provisions
Sec. 551.101 General.
(a) The Fair Labor Standards Act of 1938, as amended (referred to
as ``the Act'' or ``FLSA''), provides minimum standards for both wages
and overtime entitlements, and administrative procedures by which
covered worktime must be compensated. Included in the Act are
provisions related to child labor, equal pay, and portal-to-portal
activities. In addition, the Act exempts specified employees or groups
of employees from the application of certain of its provisions and
prescribes penalties for the commission of specifically prohibited
acts.
(b) This part contains the regulations, criteria, and conditions
set forth by the Office of Personnel Management (OPM) as prescribed by
the Act, supplements and implements the Act, and must be read in
conjunction with it.
(c) OPM's administration of the Act must comply with the terms of
the Act but the law does not require OPM's regulations to mirror the
Department of Labor's FLSA regulations. OPM's administration of the Act
must be consistent with the Department of Labor's administration of the
Act only to the extent practicable and only to the extent that this
consistency is required to maintain compliance with the terms of the
Act. For example, while OPM's executive, administrative, and
professional exemption criteria are consistent with the Department of
Labor's exemption criteria, OPM does not apply the highly compensated
employee criteria in 29 CFR 541.601 to determine FLSA exemption status.
Sec. 551.102 Authority and administration.
Section 3(e)(2) of the Act 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.
(a) Office of Personnel Management. Section 4(f) of the Act
authorizes the Office of Personnel Management (OPM) to administer the
provisions of the Act. OPM is the administrator of the provisions of
the Act with respect to any person employed by an agency, except as
specified in paragraphs (b), (c), and (d) of this section.
(b) The Equal Employment Opportunity Commission administers the
equal pay provisions contained in section 6(d) of the Act.
(c) The Department of Labor administers the Act for the government
of the District of Columbia and the following United States Government
entities:
(1) The Library of Congress;
(2) The United States Postal Service;
(3) The Postal Rate Commission; and
(4) The Tennessee Valley Authority.
(d) Office of Compliance. The Congressional Accountability Act of
1995, as amended, sections 1301 et seq. of title 2, United States Code,
extends rights and protections of the FLSA to employees of the
following United States Government entities, and assigns certain
administrative responsibilities to the Office of Compliance:
(1) The United States House of Representatives;
(2) The United States Senate;
(3) The Capitol Guide Service;
(4) The Capitol Police;
(5) The Congressional Budget Office;
(6) The Office of the Architect of the Capitol;
(7) The Office of the Attending Physician; and
(8) The Office of Compliance.
Sec. 551.103 Coverage.
(a) Covered. Any employee of an agency who is not specifically
excluded by another statute is covered by the Act. This includes any
person who is:
(1) Defined as an employee in section 2105 of title 5, United
States Code;
(2) A civilian employee appointed under other appropriate
authority; or
(3) Suffered or permitted to work by an agency whether or not
formally appointed.
(b) Not covered. The following persons are not covered by the Act:
(1) A person appointed under appropriate authority without
compensation;
(2) A trainee;
(3) A volunteer; or
(4) A member of the Uniformed Services.
Sec. 551.104 Definitions.
In this part--
Act or FLSA means the Fair Labor Standards Act of 1938, as amended
(29 U.S.C. 201 et seq.).
Administrative employee means an employee who meets the
administrative exemption criteria in Sec. 551.206.
Agency means any instrumentality of the United States Government,
or any constituent element thereof acting directly or indirectly as an
employer, as this term is defined in section 3(d) of the Act and in
this section, but does not include the entities of the United States
Government listed in Sec. 551.102(c) for which the Department of Labor
administers the Act or Sec. 551.102(d)(1) through (8), whose employees
are covered by the Congressional Accountability Act of 1995, as
amended, which makes applicable the rights and protections of the FLSA
and assigns certain administrative responsibilities to the Office of
Compliance.
Claim means a written allegation regarding a current or former
employee concerning the employee's FLSA exemption status determination
or entitlement to minimum wage or overtime pay for work performed under
the Act. The term claim is used generically in subpart G and includes
complaints under the child labor provisions of the Act.
Claim period means the time during which the cause or basis of the
claim occurred.
Claimant means any party who files an FLSA claim.
Customarily and regularly means a frequency which must be greater
than occasional but which may be less than constant. Tasks or work
performed customarily and regularly includes work normally and
recurrently performed every workweek. It does not include isolated or
one-time tasks.
Directly and closely related means work that is directly and
closely related to the performance of exempt work which is also
considered exempt work. The phrase directly and closely related means
tasks that are related to exempt duties and that contribute to or
facilitate performance of exempt work. Directly and closely related
work may include typically nonexempt tasks that arise out of and are
integral to exempt duties. Those nonexempt tasks must be performed by
the exempt employee to perform his or her exempt work. Work directly
and closely related to the performance of exempt duties may also
include recordkeeping; maintaining various records pertaining to
workload or employee performance; monitoring and adjusting machinery;
taking notes; using the computer to create documents or presentations;
opening the mail for the purpose of reading it and making decisions;
and using a photocopier or fax machine. Work which both workers and
supervisors are required to perform
[[Page 52763]]
is considered to be closely related to the primary duty of the position
(for example, physical training during tours of duty for firefighting
and law enforcement personnel) and is exempt work. Work is not directly
and closely related if the work is remotely related or completely
unrelated to exempt duties. The following examples illustrate the type
of work that is and is not normally considered as directly and closely
related to exempt work:
(1) Work is closely related to exempt supervisory work when it
contributes to the effective supervision of subordinate workers, or the
smooth functioning of the unit supervised, or both. A supervisor who
spot checks and examines the work of subordinates to determine whether
they are performing their duties properly, and whether the product is
satisfactory, is performing work which is directly and closely related
to managerial and supervisory functions, so long as the checking is
distinguishable from the work ordinarily performed by a nonexempt
inspector.
(2) Depending upon the nature of an organization, a supervisor who
sets up a machine may be engaged in exempt work. In some cases the
setup work, or adjustment of the machine for a particular job, is
typically performed by the same employees who operate the machine. In
such cases, setup work is part of the production operation and is not
exempt. In other cases, the setting up of the work is a highly skilled
operation which the ordinary production worker typically does not
perform. In large plants, non-supervisors may perform such work.
However, particularly in small plants, such work may be a regular duty
of the executive employee and is directly and closely related to the
executive employee's responsibility for the subordinates' work
performance and for the adequacy of the final product. In addition,
performing setup work that requires special skills typically is not
performed by production employees in the occupation, and does not
approach the volume that would justify hiring a specially trained
employee to perform. Such closely related work may include performing
infrequently recurring or one-time tasks which are impractical to
delegate, because they would disrupt normal operations or take longer
to explain than to perform. Under such circumstances, it is exempt
work.
(3) A management analyst may take extensive notes recording the
flow of work and materials through an organization; the analyst may
personally use a computer to type a report and create a proposed table
of organization. Standing alone, or separated from the primary duty,
such note-taking and typing would not be exempt. However, because this
work is necessary for analyzing the data and making recommendations
(which is exempt work), it is directly and closely related to exempt
work.
(4) A traffic manager in charge of planning an organization's
transportation function, including identifying the most economical and
quickest routes for shipping material to and from the activity,
contracting for common-carrier and other transportation facilities,
negotiating with carriers for adjustments for damages to material, and
making the necessary rearrangements resulting from delays, damages or
irregularities in transit, is performing exempt work. If the employee
also spends part of the day taking telephone orders for local
deliveries, such order-taking is a routine function and is not directly
and closely related to the exempt work.
(5) An example of work directly and closely related to exempt
professional duties is a chemist performing nonexempt tasks such as
cleaning a test tube in the middle of an original experiment, even
though such tasks can be assigned to laboratory assistants.
(6) A teacher performs work directly and closely related to exempt
duties when, while taking students on a field trip, the teacher drives
a school van or monitors the students' behavior in a restaurant.
Educational establishment means a nursery school, an elementary or
secondary school system, an institution of higher education, other
educational institutions, and in certain circumstances, training
facilities. The term other educational establishment includes special
schools for mentally or physically disabled or gifted children,
regardless of any classification of such schools as elementary,
secondary, or higher.
Emergency means a temporary condition that poses a direct threat to
human life or safety, serious damage to property, or serious disruption
to the operations of an activity, as determined by the employing
agency.
Employ means to engage a person in an activity that is for the
benefit of an agency, including any hours of work that are suffered or
permitted.
Employee means a person who is employed--
(1) As a civilian in an Executive agency, as defined in section 105
of title 5, United States Code;
(2) As a civilian in a military department, as defined in section
102 of title 5, United States Code;
(3) In a nonappropriated fund instrumentality of an Executive
agency or a military department;
(4) In a unit of the judicial branch of the Government that has
positions in the competitive service; or
(5) In the Government Printing Office.
Employer, as defined in section 3(d) of the Act, means any person
acting directly or indirectly in the interest of an employer in
relation to an employee and includes a public agency, but does not
include any labor organization (other than when acting as an employer)
or anyone acting in the capacity of officer or agent of such labor
organization.
Executive employee means an employee who meets the executive
exemption criteria in Sec. 551.205.
Exempt area means any foreign country, or any territory under the
jurisdiction of the United States, other than the following locations:
(1) A State of the United States;
(2) The District of Columbia;
(3) Puerto Rico;
(4) The U.S. Virgin Islands;
(5) Outer Continental Shelf Lands as defined in the Outer
Continental Shelf Lands Act (67 Stat. 462);
(6) American Samoa;
(7) Guam;
(8) Commonwealth of the Northern Mariana Islands;
(9) Midway Atoll;
(10) Wake Island;
(11) Johnston Island; and
(12) Palmyra.
Filed means a claim has been properly submitted by the claimant.
The claimant must deliver the claim to the appropriate office within
the agency or OPM, whichever is deciding the FLSA claim. The claim must
be postmarked or date-stamped in order to establish the time of
delivery.
FLSA exempt means not covered by the minimum wage and overtime
provisions of the Act.
FLSA exemption status means an employee's designation as either
FLSA exempt or FLSA nonexempt from the minimum wage and overtime
provisions of the Act.
FLSA nonexempt means covered by the minimum wage and overtime
provisions of the Act.
FLSA overtime pay means overtime pay under this part.
FLSA pay claim means a claim concerning an employee's entitlement
to minimum wage or overtime pay for work performed under the Act.
Formulate, affect, interpret, or implement management policies or
operating practices means perform work that involves management
policies or operating practices which range from
[[Page 52764]]
specific objectives and practices of a small field office to broad
national goals expressed in statutes or Executive orders. Employees
performing such work make policy decisions or participate indirectly
through developing or recommending proposals that are acted on by
others. The work of employees who significantly affect the execution of
management policies involves obtaining compliance with such policies by
other individuals or organizations, within or outside of the Federal
Government, or making significant determinations furthering the
operation of programs and accomplishment of program objectives.
Administrative employees engaged in such work typically perform one or
more phases of program management (that is, planning, developing,
promoting, coordinating, controlling, or evaluating operating programs
of the employing organization or of other organizations subject to
regulation or other controls).
Hours of work means all time spent by an employee performing an
activity for the benefit of an agency and under the control or
direction of the agency. Hours of work are creditable for the purpose
of determining overtime pay under subpart D of this part. Section
551.401 of subpart D further explains this term. However, whether time
is credited as hours of work is determined by considering many factors,
such as the rules in subparts D and E of this part, provisions of law,
Comptroller General decisions, OPM decisions and policy guidance,
agency policy, negotiated agreements, the rules in part 550 of this
chapter (for hours of work for travel), and the rules in part 410 of
this chapter (for hours of work for training).
Management means performing activities such as interviewing,
selecting, and training of employees; setting and adjusting their rates
of pay and hours of work; directing the work of employees; maintaining
production or financial records for use in supervision or control;
appraising employees' productivity and efficiency for the purpose of
recommending promotions or other changes in status; handling employee
complaints and grievances; disciplining employees; planning the work;
determining the techniques to be used; apportioning the work among the
employees; determining the type of materials, supplies, machinery,
equipment, or tools to be used or merchandise to be bought, stocked and
sold; controlling the flow and distribution of materials or merchandise
and supplies; providing for the safety and security of the employees or
the property; planning and controlling the budget; and monitoring or
implementing legal compliance measures.
Nonexempt area means any of the following locations:
(1) A State of the United States;
(2) The District of Columbia;
(3) Puerto Rico;
(4) The U.S. Virgin Islands;
(5) Outer Continental Shelf Lands as defined in the Outer
Continental Shelf Lands Act (67 Stat. 462);
(6) American Samoa;
(7) Guam;
(8) Commonwealth of the Northern Mariana Islands;
(9) Midway Atoll;
(10) Wake Island;
(11) Johnston Island; and
(12) Palmyra.
Official position means the position to which the employee is
officially assigned by means of a personnel action authorized by the
agency.
Perform work in connection with an emergency means perform work
that is directly related to resolving or coping with an emergency, or
its immediate aftermath, as determined by the employing agency.
Preserve the claim period means establish the period of possible
entitlement to back pay by filing a written claim. The date the agency
or OPM receives the claim preserves the claim period and is the date
that determines the period of possible entitlement to back pay.
Primary duty typically means the duty that constitutes the major
part (over 50 percent) of an employee's work. A duty constituting less
than 50 percent of an employee's work (alternative primary duty) may be
credited as the primary duty for exemption purposes provided that duty:
(1) Constitutes a substantial, regular part of the work assigned
and performed;
(2) Is the reason for the existence of the position; and
(3) Is clearly exempt work in terms of the basic nature of the
work, the frequency with which the employee must exercise discretion
and independent judgment as discussed in Sec. 551.206, and the
significance of the decisions made.
Professional employee means an employee who meets the professional
exemption criteria in Sec. 551.207.
Reckless disregard of the requirements of the Act means failure to
make adequate inquiry into whether conduct is in compliance with the
Act.
Recognized organizational unit means an established and defined
organizational entity which has regularly assigned employees and for
which a supervisor is responsible for planning and accomplishing a
continuing workload. This distinguishes supervisors from leaders of
temporary groups formed to perform assignments of limited duration.
(1) The term recognized organizational unit is intended to
distinguish between a mere collection of employees assigned from time
to time to a specific job or series of jobs and a unit with permanent
status and function. A recognized organizational unit must have a
permanent status and a continuing function. For example, a large human
resources department might have subdivisions for labor relations,
pensions and other benefits, equal employment opportunity, and
recruitment and placement, each of which has a permanent status and
function.
(2) A recognized organizational unit may move from place to place.
The mere fact that the employee works in more than one location does
not invalidate the exemption if other factors show that the employee is
actually in charge of a recognized organizational unit with a
continuing function in the organization.
(3) Continuity of the same subordinates is not essential to the
existence of a recognized organizational unit with a continuing
function. An otherwise exempt employee will not lose the exemption
merely because the employee draws and supervises workers from a pool or
supervises a team of workers drawn from other recognized organizational
units, if other factors are present that indicate the employee is in
charge of a recognized organizational unit with a continuing function.
Statute of limitations means the time frame within which an FLSA
pay claim must be filed, starting from the date the right accrued. All
FLSA pay claims filed on or after June 30, 1994, are subject to a 2-
year statute of limitations, except in cases of willful violation where
the statute of limitations is 3 years.
Suffered or permitted work means any work performed by an employee
for the benefit of an agency, whether requested or not, provided the
employee's supervisor knows or has reason to believe that the work is
being performed and has an opportunity to prevent the work from being
performed.
Title 5 overtime pay, for the purpose of Sec. 551.211, means
overtime pay under part 550 of this chapter.
Trainee means a person who does not meet the definition of
``employee'' in this section and who is assigned or attached to a
Federal activity primarily for training. A person who attends a
training program under the following conditions is considered a trainee
and is
[[Page 52765]]
not a Federal employee for purposes of the Act:
(1) The training, even though it includes actual operation of the
facilities of the Federal activity, is similar to that given in a
vocational school or other institution of learning;
(2) The training is for the benefit of the individual;
(3) The trainee does not displace regular employees, but is
supervised by them;
(4) The Federal activity which provides the training derives no
immediate advantage from the activities of the trainee; on occasion its
operations may actually be impeded;
(5) The trainee is not necessarily entitled to a job with the
Federal activity at the completion of the training period; and
(6) The agency and the trainee understand that the trainee is not
entitled to the payment of wages from the agency for the time spent in
training.
Two or more other employees means the equivalent of two or more
full-time employees. For the purpose of this definition, an employee is
equal to a full-time equivalent (FTE). For example, one full-time and
two half-time employees are equivalent to two full-time employees.
Volunteer means a person who does not meet the definition of
employee in this section and who volunteers or donates his or her
service, the primary benefit of which accrues to the performer of the
service or to someone other than the agency. Under such circumstances
there is neither an expressed nor an implied compensation agreement.
Services performed by such a volunteer include personal services that,
if left unperformed, would not necessitate the assignment of an
employee to perform them.
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.
Workday means the period between the commencement of the principal
activities that an employee is engaged to perform on a given day and
the cessation of the principal activities for that day. The term is
further explained in Sec. 551.411.
Worktime, for the purpose of determining FLSA exemption status,
means time spent actually performing work. This excludes periods of
time during which an employee performs no work, such as standby time,
sleep time, meal periods, and paid leave.
Worktime in a representative workweek means the average worktime
over a period long enough to even out normal fluctuations in workloads
and is representative of the job as a whole.
Workweek means a fixed and recurring period of 168 hours--seven
consecutive 24-hour periods. It need not coincide with the calendar
week but may begin on any day and at any hour of a day. For employees
subject to part 610 of this chapter, the workweek must be the same as
the administrative workweek defined in Sec. 610.102 of this chapter.
Workweek basis means the unit of time used as the basis for
applying overtime standards under the Act and, for employees under
flexible or compressed work schedules, under 5 U.S.C. 6121(6) or (7).
The Act takes a single workweek as its standard (except for employees
engaged in fire protection or law enforcement activities under section
7(k) of the Act) and does not permit the averaging of hours over two or
more weeks, except for employees engaged in fire protection or law
enforcement activities under section 7(k) of the Act.
0
3. Revise subpart B to read as follows:
Subpart B--Exemptions and Exclusions
Sec.
551.201 Agency authority.
551.202 General principles.
551.203 Salary-based nonexemption.
551.204 Nonexemption of certain employees.
551.205 Executive exemption criteria.
551.206 Administrative exemption criteria.
551.207 Professional exemption criteria.
551.208 Learned professionals.
551.209 Creative professionals.
551.210 Computer employees.
551.211 Effect of performing different work or duties for a
temporary period of time on FLSA exemption status.
551.212 Foreign exemption criteria.
551.213 Exemption of employees receiving availability pay.
551.214 Statutory exclusion.
551.215 Fire protection activities and 7(k) coverage for FLSA pay
and exemption determinations.
551.216 Law enforcement activities and 7(k) coverage for FLSA pay
and exemption determinations.
Subpart B--Exemptions and Exclusions
Sec. 551.201 Agency authority.
The employing agency must review and make a determination on each
employee's exemption status.
Sec. 551.202 General principles.
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 of this subpart and
such supplemental interpretations or instructions issued by OPM. The
agency must designate an employee FLSA exempt when the agency correctly
determines that the employee meets the requirements of one or more of
the exemptions of this subpart and such supplemental interpretations or
instructions 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 will be
designated FLSA nonexempt.
(e) While established position descriptions and titles may assist
in making initial FLSA exemption determinations, the designation of an
employee as FLSA exempt or nonexempt must ultimately rest on the duties
actually performed by the employee.
(f) Although separate criteria are provided for the exemption of
executive, administrative, and professional employees, those categories
are not mutually exclusive. Employees who perform a combination of
exempt duties set forth in this regulation may also qualify for
exemption. For example, an employee whose primary duty involves a
combination of exempt administrative and exempt executive work may
qualify for exemption, i.e., work that is exempt under one section of
this part will not defeat the exemption under any other section.
(g) Failure to meet the criteria for exemption under what might
appear to be the most obvious 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 criteria may be performing exempt executive
work.
(h) Although it is normally feasible and more convenient to
identify a single exemption category, this is not always
[[Page 52766]]
appropriate. 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. The agency is responsible for showing and documenting that
the work as a whole clearly meets one or more of the exemption
criteria.
Sec. 551.203 Salary-based nonexemption.
(a) An employee, including a supervisory employee, whose annual
rate of basic pay is less than $23,660 is nonexempt, unless:
(1) The employee is subject to Sec. 551.211 (Effect of performing
different work or duties for a temporary period of time on FLSA
exemption status); or
(2) The employee is subject to Sec. 551.212 (Foreign exemption
criteria); or
(3) The employee is a professional engaged in the practice of law
or medicine as prescribed in paragraphs (c) and (d) of Sec. 551.208.
(b) For the purpose of this section, ``rate of basic pay'' means
the rate of pay fixed by law or administrative action for the position
held by an employee, including any applicable locality payment under 5
CFR part 531, subpart F, special rate supplement under 5 CFR part 530,
subpart C, or similar payment or supplement under other legal
authority, before any deductions and exclusive of additional pay of any
other kind, such as premium payments, differentials, and allowances.
Sec. 551.204 Nonexemption of certain employees.
(a) Certain nonsupervisory white-collar employees are FLSA
nonexempt (unless the employees are subject to Sec. 551.211 (Effect of
performing different work or duties for a temporary period of time on
FLSA exemption status) or Sec. 551.212 (Foreign exemption criteria))
because they do not fit any of the exemption categories. They include:
(1) Employees in equipment operating and protective occupations,
and most clerical occupations;
(2) Employees performing technician work in positions properly
classified below GS-9 (or the equivalent level in other 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 white-
collar pay systems); and
(3) Employees at any grade, or equivalent level, in occupations
requiring highly specialized, technical skills and knowledge that can
be acquired only through prolonged job training and experience, such as
in the Air Traffic Control series, or in the Aircraft Operations series
unless such employees are performing predominantly administrative
functions rather than the technical work of the occupation.
(b) Nonsupervisory employees in the Federal Wage System or in other
comparable wage systems are nonexempt, unless the employees are subject
to Sec. 551.211 (Effect of performing different work or duties for a
temporary period of time on FLSA exemption status) or Sec. 551.212
(Foreign exemption criteria).
Sec. 551.205 Executive exemption criteria.
(a) An executive employee is an employee whose primary duty is
management (as defined in Sec. 551.104) of a Federal agency or any
subdivision thereof (including the lowest recognized organizational
unit with a continuing function) and who:
(1) Customarily and regularly directs the work of two or more other
employees. However, an employee who merely assists the manager of a
particular department and supervises two or more employees only in the
actual manager's absence does not meet this requirement. In addition,
hours worked by an employee cannot be credited more than once for
different executives. This takes into consideration those organizations
that use matrix management, i.e., a system of ``shared'' leadership,
where supervision cuts across product and service lines in terms of
accessing activities and advising top management on business
operations, but where the supervisor/leader does not have the operating
authority over all employees. Thus, a shared responsibility for the
supervision of the same two employees in the same recognized
organizational unit does not satisfy this requirement. However, a full-
time employee who works 4 hours for one supervisor and 4 hours for a
different supervisor will be credited as a half-time employee for both
supervisors; and
(2) Has the authority to hire or fire other employees or whose
suggestions and recommendations as to the hiring, firing, advancement,
promotion, or any other change of status of other employees, are given
particular weight.
(b) Particular weight. Criteria to determine whether an employee's
suggestions and recommendations are given particular weight by higher-
level management include, but are not limited to: whether it is part of
the employee's job duties to make such suggestions and recommendations;
the frequency with which such suggestions and recommendations are made
or requested; and the frequency with which the employee's suggestions
and recommendations are relied upon. Generally, an executive's
suggestions and recommendations must pertain to employees whom the
executive customarily and regularly directs. Particular weight does not
include consideration of an occasional suggestion with regard to the
change in status of a co-worker. An employee's suggestions and
recommendations may still be deemed to have particular weight even if a
higher level manager's recommendation has more importance and even if
the employee does not have authority to make the ultimate decision as
to the employee's change in status.
Sec. 551.206 Administrative exemption criteria.
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;
[[Page 52767]]
(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 choice, 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.
(f) The use of manuals, guidelines, or other established procedures
containing or relating to highly technical, scientific, legal,
financial, or other similarly complex matters that can be understood or
interpreted only by those with advanced or specialized knowledge or
skills does not preclude exemption. Such manuals and procedures provide
guidance in addressing difficult or novel circumstances and thus use of
such reference material would not affect an employee's exemption
status. However, employees who simply apply well-established techniques
or procedures described in manuals or other sources within closely
prescribed limits to determine the correct response to an inquiry or
set of circumstances will be nonexempt.
(g) An employee does not exercise discretion and independent
judgment with respect to matters of significance merely because the
employer will experience financial losses if the employee fails to
perform the job properly. For example, a messenger who is entrusted
with carrying large sums of money does not exercise discretion and
independent judgment with respect to matters of significance even
though serious consequences may flow from the employee's neglect.
Similarly, an employee who operates very expensive equipment does not
exercise discretion and independent judgment with respect to matters of
significance merely because improper performance of the employee's
duties may cause serious financial loss to the employer.
(h) Employees in certain occupations typically assist and support
line managers and assume facets of the overall management function.
Neither the location of the work nor the number of employees performing
the same or similar work turns such work into a production function.
For example, independent agencies or agency components often provide
centralized human resources, information systems, procurement and
acquisition, or financial management services as support services to
other agencies or agency components. However, this does not change the
inherent administrative nature of the work performed to line or
production work. Similarly, employees who develop, interpret, and
oversee agency or Governmentwide policy are performing management
support functions. Some of these activities may be performed by
employees who would otherwise qualify under another exemption.
Depending upon the purpose of the work and the organizational
context, work in certain occupations may be either exempt or nonexempt.
For example, criminal investigators who perform work directly related
to the internal management of the agency and typically would be
expected to provide recommendations of great significance based on the
analysis of investigative findings would likely be considered as
performing a staff function. In contrast, the performance of
investigative and inspectional work to confirm whether specific
regulatory requirements have been met for an investigative/inspectional
component of any agency would likely be considered as performing a line
rather than a staff function.
(i) An employee who leads a team of other employees assigned to
complete major projects (such as acquisitions; negotiating real estate
transactions or collective bargaining agreements; designing and
implementing productivity improvements; oversight, compliance, or
program reviews; investigations) 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. An example is a lead auditor who oversees an
audit team in an auditing agency and who is assigned responsibility for
leading a major audit requiring the use of substantial agency
resources. This auditor is responsible for proposing the parameters of
the audit and developing a plan of action and milestones to accomplish
the audit. Included in the plan are the methodologies to be used, the
staff and other resources required to conduct the audit, proposed staff
member assignments, etc. When conducting the audit, the lead auditor
makes on-site decisions and/or proposes major changes to managers on
matters of significance in accomplishing the audit, including
deviations from established policies and practices of the agency.
(j) An executive assistant or administrative assistant to a high
level manager or senior executive generally meets the duties
requirements for the administrative exemption if such employee, without
specific instructions or prescribed procedures, has been delegated
authority regarding matters of significance.
(k) Human resources employees who formulate, interpret or implement
human resources management policies generally meet the duties
requirements for the administrative exemption. In addition, when
interviewing and screening functions are performed by the human
resources employee who makes the hiring decision or makes
recommendations for hiring from a pool of qualified applicants, such
duties constitute exempt work, even though routine, because this work
is directly and closely related to the employee's exempt functions.
(l) Management analysts who study the operations of an organization
and propose changes in the organization, program analysts who study
program
[[Page 52768]]
operations and propose changes to the program, and other management
advisors generally meet the duties requirements for the administrative
exemption.
(m) Acquisition employees with authority to bind the organization
to significant purchases generally meet the duties requirements for the
administrative exemption even if they must consult with higher
management officials when making a commitment.
(n) Ordinary inspection work generally does not meet the duties
requirements for the administrative exemption. Inspectors normally
perform specialized work along standardized lines involving well-
established techniques and procedures which may have been catalogued
and described in manuals or other sources. Such inspectors rely on
techniques and skills acquired by special training or experience. They
have some leeway in the performance of their work but only within
closely prescribed limits.
Sec. 551.207 Professional exemption criteria.
To qualify for the professional exemption, an employee's primary
duty must be the performance of work requiring knowledge of an advanced
type in a field of science or learning customarily acquired by a
prolonged course of specialized intellectual instruction or requiring
invention, imagination, originality or talent in a recognized field of
artistic or creative endeavor. Learned professionals, creative
professionals, and computer employees are described in Sec. Sec.
551.208, 551.209, and 551.210, respectively.
Sec. 551.208 Learned professionals.
(a) To qualify for the learned professional exemption, an
employee's primary duty must be the performance of work requiring
advanced knowledge in a field of science or learning customarily
acquired by a prolonged course of specialized intellectual instruction.
The work must include the following three elements:
(1) The employee must perform work requiring advanced knowledge.
Work requiring advanced knowledge is predominantly intellectual in
character and includes work requiring the consistent exercise of
discretion and judgment, as distinguished from performance of routine
mental, manual, mechanical or physical work. An employee who performs
work requiring advanced knowledge generally uses the advanced knowledge
to analyze, interpret or make deductions from varying facts or
circumstances. Advanced knowledge cannot be attained at the high school
level;
(2) The advanced knowledge must be in a field of science or
learning which includes the traditional professions of law, medicine,
theology, accounting, actuarial computation, engineering, architecture,
teaching, various types of physical, chemical and biological sciences,
pharmacy, and other similar occupations that have a recognized
professional status as distinguished from the mechanical arts or
skilled trades where in some instances the knowledge is of a fairly
advanced type, but is not in a field of science or learning; and
(3) The advanced knowledge must be customarily acquired by a
prolonged course of specialized intellectual instruction which
restricts the exemption to professions where specialized academic
training is a standard prerequisite for entrance into the profession.
The best prima facie evidence that an employee meets this requirement
is possession of the appropriate academic degree. However, the word
``customarily'' means that the exemption is appropriate for employees
in such professions who have substantially the same knowledge level and
perform substantially the same work as the degreed employees, but who
attained the advanced knowledge through a combination of work
experience and intellectual instruction. For example, the learned
professional exemption is appropriate in unusual cases where a lawyer
has not gone to law school, or a chemist does not possess a degree in
chemistry. However, the learned professional exemption is not
applicable to occupations that customarily may be performed with only
the general knowledge acquired by an academic degree in any field, with
knowledge acquired through an apprenticeship, or with training in the
performance of routine mental, manual, mechanical, or physical
processes. The learned professional exemption also does not apply to
occupations in which most employees have acquired their skill by
experience rather than by advanced specialized intellectual
instruction. The position of Engineering Technician is an example of
such an occupation where the employee collects, observes, tests and
records factual scientific data within the oversight of professional
engineers, and performs work using knowledge acquired through on-the-
job and classroom training rather than by acquiring the knowledge
through prolonged academic study.
(b) Expansion of professional exemption. The areas in which the
professional exemption may be applicable are expanding. As knowledge is
developed, academic training is broadened and specialized degrees are
offered in new and diverse fields, thus creating new specialists in
particular fields of science or learning. When an advanced specialized
degree has become a standard requirement for a particular occupation,
that occupation may have acquired the characteristics of a learned
profession. Accrediting and certifying organizations similar to those
listed in this section also may be created in the future. Such
organizations may develop similar, specialized curriculums and
certification programs which, if a standard requirement for a
particular occupation, may indicate that the occupation has acquired
the characteristics of a learned profession.
(c) Practice of law. (1) This exemption applies to an employee in a
professional legal position requiring admission to the bar and involved
in preparing cases for trial and/or the trial of cases before a court
or an administrative body or persons having quasi-judicial power;
rendering legal advice and services; preparing interpretive and
administrative orders, rules, or regulations; drafting, negotiating, or
examining contracts or other legal documents; drafting, preparing
formal comments, or otherwise making substantive recommendations with
respect to proposed legislation; editing and preparing for publication
statutes enacted by Congress and opinions or decisions of a court,
commission, or board; and drafting and reviewing decisions for
consideration and adoption by agency officials.
(2) Section 551.203 (Salary-based nonexemption) does not apply to
the employees described in this section.
(d) Practice of medicine. (1) An employee who holds a valid license
or certificate permitting the practice of medicine or any of its
branches and is actually engaged in the practice of the profession is
exempt. The exemption applies to physicians and other practitioners
licensed and practicing in the field of medical science and healing or
any of the medical specialties practiced by physicians or
practitioners. The term ``physicians'' includes medical doctors,
including general practitioners and specialists, osteopathic physicians
(doctors of osteopathy), podiatrists, dentists (doctors of dental
medicine), and optometrists (doctors of optometry or bachelors of
science in optometry).
(2) An employee who holds the required academic degree for the
general practice of medicine and is engaged in an internship or
resident program pursuant to the practice of the profession is exempt.
Employees engaged in internship or resident
[[Page 52769]]
programs, whether or not licensed to practice prior to commencement of
the program, qualify as exempt professionals if they enter such
internship or resident programs after the earning of the appropriate
degree required for the general practice of their profession.
(3) Section 551.203 (Salary-based nonexemption) does not apply to
the employees described in this section.
(e) Accounting. Certified public accountants generally meet the
duties requirements for the learned professional exemption. An employee
performing similar professional work in a position with a positive
educational requirement and requiring the application of accounting
theories, concepts, principles, and standards may qualify as an exempt
learned professional. However, accounting clerks and technicians and
other employees who normally perform a great deal of routine work
generally will not qualify as exempt professionals.
(f) Engineering. Engineers generally meet the duties requirements
for the learned professional exemption. Professional engineering work
typically involves the application of a knowledge of such engineering
fundamentals as the strength and strain analysis of engineering
materials and structures, the physical and chemical characteristics of
engineering materials such as elastic limits, maximum unit stresses,
coefficients of expansion, workability, hardness, tendency to fatigue,
resistance to corrosion, engineering adaptability, and engineering
methods of construction and processing. Exempt professional engineering
work includes equivalent work performed in any of the specialized
branches of engineering (e.g., electrical, mechanical, or materials
engineering). On unusual occasions, engineering technicians performing
work comparable to that performed by professional engineers on the
basis of advanced knowledge may also be exempt. In such instances, the
employee actually is performing the work of an occupation that
generally requires a specialized academic degree and is performing
substantially the same work as the degreed employee, but has gained the
same advanced knowledge through a combination of work experience and
intellectual instruction which has provided both theoretical and
practical knowledge of the specialty, including knowledge of related
disciplines and of new developments in the field.
(g) Architecture. Architects generally meet the duties requirements
for the learned professional exemption. Professional architectural work
typically requires knowledge of architectural principles, theories,
concepts, methods, and techniques; a creative and artistic sense; and
an understanding and skill to use pertinent aspects of the construction
industry, as well as engineering and the physical sciences related to
the design and construction of new, or the improvement of existing,
buildings.
(h) Teachers. A teacher is any employee with a primary duty of
teaching, tutoring, instructing or lecturing in the activity of
imparting knowledge and who is employed and engaged in this activity as
a teacher in an educational establishment by which the employee is
employed.
(1) A teacher performs exempt work when serving, for example, as a
regular academic teacher; teacher of kindergarten or nursery school
pupils; teacher of gifted or disabled children; teacher of skilled and
semi-skilled trades and occupations; teacher engaged in automobile
driving instruction; aircraft flight instructor; home economics
teacher; or vocal or instrumental music instructor. A faculty member
who is engaged as a teacher but also spends a considerable amount of
time in extracurricular activities such as coaching athletic teams or
acting as a moderator or advisor in such areas as drama, speech,
debate, or journalism is engaged in teaching. Such activities are a
recognized part of an educational establishment's responsibility in
contributing to the educational development of the student. An
instructor in an institution of higher education or another educational
establishment whose primary duty is teaching, tutoring, instructing, or
lecturing in the activity of imparting knowledge is also an exempt
teacher.
(2) The possession of an elementary or secondary teacher's
certificate provides a clear means of identifying the individuals
contemplated as being within the scope of the exemption for teaching
professionals. Teachers who possess a teaching certificate qualify for
the exemption regardless of the terminology (e.g., permanent,
conditional, standard, provisional, temporary, emergency, or unlimited)
used by appropriate certifying entities. However, a teacher's
certificate is not generally necessary for post-secondary educational
establishments.
(3) Exempt teachers do not include teachers of skilled and semi-
skilled trade, craft, and laboring occupations when the paramount
knowledge is the knowledge of and the ability to perform the trade,
craft, or laboring occupation. Conversely, if the primary requirement
of the post-secondary education instructor is the ability to instruct,
as opposed to knowledge of and ability to perform a trade, craft, or
laboring occupation, then the position may be exempt.
(4) Section 551.203 (Salary-based nonexemption) does not apply to
the employees described in this section.
(i) Medical technologists. Registered or certified medical
technologists who have successfully completed 3 academic years of pre-
professional study in an accredited college or university, plus a 4th
year of professional course work in a school of medical technology
approved by the Council of Medical Education of the American Medical
Association, generally meet the duties requirements for the learned
professional exemption.
(j) Nurses. Registered nurses who are registered by the appropriate
State examining board generally meet the duties requirements for the
learned professional exemption. Licensed practical nurses and other
similar health care employees, however, generally do not qualify as
exempt learned professionals because possession of a specialized
advanced academic degree is not a standard prerequisite for entry into
such occupations.
(k) Dental hygienists. Dental hygienists who have successfully
completed 4 academic years of pre-professional and professional study
in an accredited college or university approved by the Commission on
Accreditation of Dental and Dental Auxiliary Educational Programs of
the American Dental Association generally meet the duties requirements
for the learned professional exemption.
(l) Physician assistants. Physician assistants who have
successfully completed 4 academic years of pre-professional and
professional study, including graduation from a physician assistant
program accredited by the Accreditation Review Commission on Education
for the Physician Assistant, and who are certified by the National
Commission on Certification of Physician Assistants, generally meet the
duties requirements for the learned professional exemption.
(m) Paralegals. Paralegals and legal assistants generally do not
qualify as exempt learned professionals because an advanced,
specialized academic degree is not a standard prerequisite for entry
into the field. Although many paralegals possess general 4-year
advanced degrees, most specialized paralegal programs are 2-year
associate degree programs from a community college or equivalent
institution. However, the learned professional exemption is applicable
to paralegals who possess advanced, specialized
[[Page 52770]]
degrees in other professional fields and apply advanced knowledge in
that field in the performance of their duties. In addition, a paralegal
who fails to meet the professional exemption criteria may be performing
exempt administrative work, e.g., overseeing a full range of support
services for a large legal office.
Sec. 551.209 Creative professionals.
(a) To qualify for the creative professional exemption, an
employee's primary duty must be the performance of work requiring
invention, imagination, originality, or talent in a recognized field of
artistic or creative endeavor as opposed to routine mental, manual,
mechanical, or physical work. The work performed must be ``in a
recognized field of artistic or creative endeavor,'' including such
fields as music, writing, acting, and the graphic arts. The exemption
does not apply to work which can be produced by a person with general
manual or intellectual ability and training. The requirement of
``invention, imagination, originality, or talent'' distinguishes the
creative professions from work that primarily depends on intelligence,
diligence, and accuracy. The duties of employees vary widely, and
exemption as a creative professional depends on the extent of the
invention, imagination, originality, or talent exercised by the
employee. Determination of exempt creative professional status must be
made on a case-by-case basis. This requirement generally is met by
actors, musicians, composers, conductors, and soloists; painters who at
most are given the subject matter of their painting; and writers who
choose their own subjects and hand in a finished piece of work to their
employers. This requirement generally is not met by a person who is
employed as a retoucher of photographs, since such work is not properly
described as creative in character.
(b) Federal employees engaged in the work of newspapers, magazines,
television, or other media are not exempt creative professionals if
they only collect, organize, and record information that is routine or
already public, or if they do not contribute a unique interpretation or
analysis to a news product. For example, employees who merely rewrite
press releases or who write standard recounts of public information by
gathering facts on routine community events are not exempt creative
professionals. Employees also do not qualify as exempt creative
professionals if their work product is subject to substantial control
by the organization. However, when the work requires invention,
imagination, originality, or talent, as opposed to work which depends
primarily on intelligence, diligence, and accuracy, such employees may
qualify as exempt creative professionals if their primary duty is
performing on the air in radio, television or other electronic media;
conducting investigative interviews; analyzing or interpreting public
events; writing editorials, opinion columns, or other commentary; or
acting as a narrator or commentator. Work that does not fully meet the
creative professional exemption criteria does not preclude exemption
under another exemption category. For example, public affairs work
under control of the organization that does not meet the creative
professional exemption may meet the administrative exemption.
Sec. 551.210 Computer employees.
(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
nonexemption prescribed in Sec. 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 Sec. 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.
Sec. 551.211 Effect of performing different work or duties for a
temporary period of time on FLSA exemption status.
(a) Applicability. Performing different work or duties for a
temporary period of time may affect an employee's exemption status.
(1) When applicable. This section applies only when an employee
must perform work or duties that are not consistent with the employee's
primary duties for an extended period, that is, for more than 30
consecutive calendar
[[Page 52771]]
days--the ``30-day test.'' The period of performing different work or
duties may or may not involve a different geographic duty location. The
exemption status of an employee temporarily performing different work
or duties must be determined as described in this section.
(2) When not applicable. This section does not apply when an
employee is detailed to an identical additional position as the
employee's position or to a position at the same level with the same
basic duties and exemption status as the employee's position.
(b) An agency generally may not change an employee's exemption
status based on a snapshot of the employee's duties during a particular
week, unless the week involves emergency work under paragraph (f) of
this section. An agency must:
(1) Assess an employee's temporary work or duties over a reasonable
period of time (the 30-day test), compare them with the primary duties
upon which the employee's exemption status is based, and determine the
employee's exemption status as described in Sec. Sec. 551.203 through
551.210; and
(2) Ensure that it does not avoid reassessing, and perhaps
changing, an employee's exemption status by breaking up periods of
temporary work or duties with periods of having the employee perform
his or her regular work or duties. For example, an agency may not
assign exempt employees to perform nonexempt work or duties for 29
consecutive calendar days, return them to their exempt duties for two
or three days, then assign them again to perform nonexempt work for
another 29 days.
(c) Aggregation of more than 30 nonconsecutive calendar days over
an extended period does not meet the 30-day test and may not be used to
change an employee's exemption status. For example, if an exempt
employee performs nonexempt duties 4 days in one week, 2 days in the
following week, and so on over a period of weeks or months, the days of
nonexempt work may not be aggregated for the purpose of changing the
employee's exemption status.
(d) Effect on nonexempt employees. (1) A nonexempt employee who
must temporarily perform work or duties that are different from the
employee's primary duties remains nonexempt for the entire period of
temporary work or duties unless both of the following conditions are
met:
(i) The period of temporary work or duties exceeds 30 consecutive
calendar days; and
(ii) The employee's primary duties for the period of temporary work
are exempt as defined in this part.
(2) If a nonexempt employee becomes exempt under the criteria in
paragraph (d)(1) of this section:
(i) The employee must be considered exempt for the entire period of
temporary work or duties; and
(ii) If the employee received FLSA overtime pay for work performed
during the first 30 calendar days of the temporary work or duties, the
agency must recalculate the employee's total pay retroactive to the
beginning of that period because the employee is no longer entitled to
the FLSA overtime pay received but may be owed title 5 overtime pay, or
its equivalent.
(e) Effect on exempt employees. (1) An exempt employee who must
temporarily perform work or duties that are different from the
employee's primary duties remains exempt for the entire period of
temporary work or duties unless both of the following conditions are
met:
(i) The period of temporary work or duties exceeds 30 consecutive
calendar days; and
(ii) The employee's primary duties for the period of temporary work
are not exempt as defined in this part.
(2) If an exempt employee becomes nonexempt under the criteria in
paragraph (e)(1) of this section:
(i) The employee must be considered nonexempt for the entire period
of temporary work or duties; and
(ii) If the employee received title 5 overtime pay, or its
equivalent, for work performed during the first 30 consecutive calendar
days of the temporary work or duties, the agency must recalculate the
employee's total pay retroactive to the beginning of that period
because the employee may no longer be entitled to some or all of the
title 5, or equivalent, overtime pay received but may be owed FLSA
overtime pay.
(f) Emergency situation. Notwithstanding 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
(2) Exempt employee. The exemption status of an exempt employee
must be determined on a workweek basis. The exemption status
determination of exempt employees will result in the employee either
remaining exempt or becoming nonexempt for that workweek, as described
in paragraphs (f)(2)(i) and (f)(2)(ii) of this section.
(i) Remain exempt. An exempt employee remains exempt for any
workweek in which the employee's primary duties for the period of
emergency work are exempt as defined in this part.
(ii) Become nonexempt. An exempt employee becomes nonexempt for any
workweek in which the employee's primary duties for the period of
emergency work are nonexempt as defined in this part.
Sec. 551.212 Foreign exemption criteria.
Foreign exemption means a provision of the Act under which the
minimum wage, overtime, and child labor provisions of the Act do not
apply to any employee who spends all hours of work in a given workweek
in an exempt area.
(a) Application. When the foreign exemption applies, the minimum
wage, overtime, and child labor provisions of the Act do not apply to
any employee who spends all hours of work in a given workweek in an
exempt area. When an employee meets one of the two criteria in
paragraph (b) of this section, the foreign exemption applies until the
employee spends any hours of work in any nonexempt area as defined in
Sec. 551.104.
(b) Foreign exemption applies. If an employee meets one of the two
following criteria, the employee is subject to the foreign exemption of
the Act and the minimum wage, overtime, and child labor provisions of
the Act do not apply:
(1) The employee is permanently stationed in an exempt area and
spends all hours of work in a given workweek in one or more exempt
areas; or
(2) The employee is not permanently stationed in an exempt area,
but spends all hours of work in a given workweek in one or more exempt
areas.
(c) Foreign exemption does not apply. For any given workweek, the
minimum wage, overtime, and child labor provisions of the Act apply to
an employee permanently stationed in an exempt area who spends any
hours of work in any nonexempt area. For that workweek, the employee is
not subject to the foreign exemption, and the agency must determine the
exemption
[[Page 52772]]
status of such an employee as described in paragraphs (c)(1) and (c)(2)
of this section. The foreign exemption does not resume until the
employee again meets one of the criteria in paragraph (b) of this
section.
(1) Same duties. If the duties performed during that workweek are
consistent with the primary duties of the employee's official position,
the agency must designate the employee the same FLSA exemption status
as if the employee were permanently stationed in any nonexempt area.
(2) Different duties. If the duties performed during that workweek
are not consistent with the primary duties of the employee's official
position:
(i) The agency must first designate the employee the same FLSA
exemption status as the employee would have been designated based on
the duties included in the employee's official position if the employee
was permanently stationed in any nonexempt area; and
(ii) The agency must determine the employee's exemption status for
that workweek by applying Sec. 551.211.
(d) Resumption of foreign exemption. When an employee returns to
any exempt area from performing any hours of work in any nonexempt
area, the employee is not subject to the foreign exemption until the
employee meets one of the criteria in paragraph (b) of this section.
Sec. 551.213 Exemption of employees receiving availability pay.
The following employees are exempt from the hours of work and
overtime pay provisions of the Act:
(a) A criminal investigator receiving availability pay under Sec.
550.181(a) of this chapter, as provided in 29 U.S.C. 213(a)(16));
(b) A pilot employed by U.S. Customs and Border Protection or its
successor 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.
Sec. 551.214 Statutory exclusion.
A customs officer who receives overtime pay under subsection (a) or
premium pay under subsection (b) of 19 U.S.C. 267 and under 19 CFR
24.16 for time worked may not receive pay or other compensation for
that work under any other provision of law.
Sec. 551.215 Fire protection activities and 7(k) coverage for FLSA
pay and exemption determinations.
(a) The Office of Personnel Management may determine that the
provisions of section 7(k) of the Act apply to certain categories of
fire protection employees based on appropriate factors, such as the
type of premium payments they receive (see Sec. 551.501(a)(1) and (5)
and Sec. 551.541).
(b) Fire protection activities. Fire protection activities involve
the performance of functions directly concerned with the response to
and the control and extinguishment of fires; or performance of
inspection of facilities and equipment for the primary purpose of
reducing or eliminating fire hazards by trained firefighters eligible
for reassignment to fire control and suppression or prevention duties;
or provision of the primary (i.e., the first called) rescue and
ambulance service in connection with fire protection functions.
(c) Engaged in fire protection activities. (1) An employee
(including a firefighter, paramedic, emergency medical technician,
rescue worker, ambulance personnel, or hazardous materials worker) is
considered engaged in fire protection activities for the purpose of
determining possible application of section 7(k) of the Act as provided
for in Sec. 551.501(a)(1) and (5) and Sec. 551.541 if the employee:
(i) Is trained in fire suppression, has authority and
responsibility to engage in fire suppression, and is employed by an
organization with fire suppression as a primary mission; and
(ii) Is engaged in the prevention, control, and extinguishment of
fires or response to emergency situations where life, property, or the
environment is at risk.
(2) Subject to the requirements of paragraph (c)(1) of this
section, the following types of employees are engaged in fire
protection activities for the purpose of determining possible
application of section 7(k) of the Act:
(i) Employees in positions properly classified in the Fire
Protection and Prevention series, including any qualified firefighter
who is assigned to perform support functions (e.g., communications or
dispatching functions, equipment maintenance or repair) or who is
transferred to an administrative or supervisory position within the
fire protection activity, except when such administrative or
supervisory work exempts the employee under executive, administrative,
and professional considerations;
(ii) Employees in positions properly classified in other series,
such as Forestry Technician, for whom fire protection functions
constitute substantially full-time assignments throughout the year, or
for the duration of a specified fire season within the year;
(iii) Temporary employees hired solely to perform fire suppression
work on an as-needed basis;
(iv) Members of rescue and ambulance crews with fire suppression
training, authority, and responsibility, who are part of a fire
suppression organization, as described in paragraph (c)(1)(i) of this
section; and
(v) Any other employee in any workweek in which the employee
performs fire control or suppression work for 80 percent or more of the
total hours worked.
(d) Not engaged in fire protection activities. Examples of types of
employees who are not engaged in fire protection activities for the
purpose of applying section 7(k) of the Act (as provided for in Sec.
551.501(a)(1) and (5) and Sec. 551.541) include the following:
(1) Professional engineers, engineering technicians, and similar
employees involved in fire protection research or in the design and
development of fire protection and prevention equipment and materials;
(2) Employees who perform functions that support fire protection
activities but who are not trained, qualified firefighters eligible for
reassignment to fire control and suppression or prevention duties.
Supporting functions (such as maintenance of fire apparatus, equipment,
alarm systems, etc., or communications and dispatching work or
preparation of records and reports) are included when performed by
firefighters but are not included when performed by mechanics,
communications systems and radio operators, clerks, or other employees;
(3) Employees whose primary duties are not related to fire
protection but who perform fire control or suppression work on an as
needed basis, provided that the fire control or suppression work
constitutes less than 80 percent of the employees' hours of work within
any workweek; and
(4) Employees on rescue and ambulance crews who:
(i) Are not trained in fire suppression;
(ii) Do not have fire suppression authority and responsibility; or
(iii) Are employed by an organization, such as a hospital, that
does not have fire suppression as a primary mission.
Sec. 551.216 Law enforcement activities and 7(k) coverage for FLSA
pay and exemption determinations.
(a) The Office of Personnel Management may determine that the
provisions of section 7(k) of the Act apply to certain categories of
law enforcement employees based on appropriate factors, such as the
type of premium payments they receive (see Sec. 551.501(a)(1) and (5)
and Sec. 551.541).
[[Page 52773]]
(b) Law enforcement activities. Law enforcement activities involve
work directly and primarily concerned with:
(1) Patrol and control functions that include patrolling an area to
enforce law and order and to protect the lives, property, and civil
rights of individuals through the prevention and detection of criminal
acts; responding to complaints, violations, accidents, and emergencies;
investigating for clues at the scene of a crime, interviewing
witnesses, and evaluating evidence to locate suspects; and apprehending
and arresting persons suspected of, or wanted for, criminal violations
under a statutorily prescribed arrest authority;
(2) Executing the orders of a Federal court, including serving
civil writs and criminal warrants issued by Federal courts; tracing and
arresting persons wanted by warrants; and seizing and disposing of
property under court orders;
(3) Planning and conducting investigations relating to alleged or
suspected violations of criminal laws, including the arrest of
suspected or wanted persons under a statutorily prescribed arrest
authority;
(4) Security functions in a correctional institution involving
direct custody and safeguarding of inmates charged with or convicted of
violations of criminal laws; or
(5) Rescue and ambulance functions that provide the primary (i.e.,
the first called) service in connection with law enforcement activities
described above.
(c) Engaged in law enforcement activities. The following employees
are engaged in law enforcement activities for the purpose of
determining possible application of section 7(k) of the Act as provided
for in Sec. 551.501(a)(1) and (5) and Sec. 551.541:
(1) Employees in positions properly classified in the Police
series, and employees in positions that would be otherwise classifiable
in that series if covered by classification criteria of chapter 51 of
title 5, U.S. Code;
(2) Employees in positions properly classified as Border Patrol
Agents, Customs Patrol Officers, and other employees whose primary
duties involve similar patrol and control functions performed for the
purpose of detecting and apprehending persons suspected of violating
criminal laws;
(3) Employees in positions properly classified in the U.S. Marshal
series;
(4) Employees in positions properly classified in the Criminal
Investigating series, and other employees performing criminal
investigation as their primary duty, except as provided for in Sec.
551.213 (Exemption of employees receiving availability pay);
(5) Employees in positions properly classified in the Correctional
Officer series, Guard series, or other series, whose primary duty is to
maintain custody of inmates of a correctional institution; and
(6) Employees on rescue and ambulance crews that provide the
primary service in connection with law enforcement functions, provided
that crew members have received intensive training in specialized
rescue and first aid procedures applicable to law enforcement
emergencies (e.g., gunshot wounds, riot and accident victims) and the
crew responds to actual or potential law enforcement emergencies on a
regular and recurring basis.
(d) Not engaged in law enforcement activities. The following
employees are not engaged in law enforcement activities for the purpose
of pay under section 7(k) of the Act as provided for in Sec.
551.501(a)(1) and (5) and Sec. 551.541:
(1) Employees whose primary duties concern the protection of
Government property from hazards such as sabotage, espionage, theft,
fire, or accidental or willful damage and in so doing, control the
movement of persons and protect the lives and property of persons on
Government property (e.g., guards or other employees performing similar
functions);
(2) Employees who perform work concerned with the determination of
the applicability of or compliance with laws and regulations when the
duties primarily involve:
(i) Examining or inspecting products, premises, property, or papers
of persons or firms to enforce or obtain compliance with laws and
regulations (e.g., immigration and customs examining or inspecting;
mine safety and health examining or inspecting; alcohol, tobacco and
firearms examining or inspecting; plant protection and quarantine
examining or inspecting); or
(ii) Planning and conducting investigations covering the character,
practices, suitability or qualifications of persons or organizations
seeking, claiming or receiving Federal benefits, permits, or employment
(e.g., general investigations work);
(3) Employees who work within correctional institutions but who do
not have direct custody and safeguarding of inmates as their primary
duty; and
(4) Members of rescue or ambulance crews that provide those
services in connection with law enforcement activities only in unusual
situations (e.g., when the primary crews are unavailable or when an
emergency situation requires more crews than can be provided by the
primary service).
0
4. Amend Sec. 551.541 of subpart E by revising paragraphs (a) and (b)
to read as follows:
Subpart E--Overtime Pay Provisions
Sec. 551.541 Employees engaged in fire protection activities or law
enforcement activities.
(a) An employee engaged in fire protection activities or law
enforcement activities (as described in Sec. Sec. 551.215 and 551.216,
respectively) who receives compensation for those activities under 5
U.S.C. 5545(c)(1) or (2) or 5545b, or does not meet the definition of
``employee'' in 5 U.S.C. 5541(2) for the purposes of 5 U.S.C. 5542,
5543, and 5544, is subject to section 7(k) of the Act and this section.
(See Sec. 551.501(a)(1) and (5)). Such an employee shall be paid at a
rate equal to one and one-half times the employee's hourly regular rate
of pay for those hours in a tour of duty which exceed the overtime
standard for a work period specified in section 7(k) of the Act.
(b) The tour of duty of an employee covered by paragraph (a) of
this section shall include all time the employee is on duty. Meal
periods and sleep periods are included in the tour of duty except as
otherwise provided in Sec. Sec. 551.411(c) and 551.432(b).
* * * * *
0
5. Add paragraph (c) to Sec. 551.601 to read as follows:
Subpart F--Child Labor
Sec. 551.601 Minimum age standards.
* * * * *
(c) All work in fire suppression is deemed hazardous for the
employment of individuals under 18 years of age. All work in fire
protection and prevention is particularly hazardous for the employment
of individuals between 16 and 18 years of age, except the following:
(1) Work in offices or in repair or maintenance shops without
exposure to hazardous materials;
(2) Work in the construction, operation, repair, or maintenance of
living and administrative quarters in firefighting camps without
exposure to hazardous materials;
(3) Work in forest protection, such as clearing fire trails or
roads, piling and burning slash, maintaining firefighting equipment, or
acting as fire lookout or fire patrolman away from the actual logging
operations, provided that this provision shall not apply to the felling
or bucking of timber, the collecting or transporting of logs, the
operation of power-driven machinery, the handling or use of explosives,
and work on trestles;
[[Page 52774]]
(4) Work in the clean-up service outside of a structure after a
fire has been declared by the fire official in charge to be under
control; and
(5) Work assisting in the administration of first aid.
0
6. Revise subpart G to read as follows:
Subpart G--FLSA Claims and Compliance
Sec.
551.701 Applicability.
551.702 Time limits.
551.703 Avenues of review.
551.704 Claimant's representative.
551.705 Filing an FLSA claim.
551.706 Responsibilities.
551.707 Withdrawal or cancellation of an FLSA claim.
551.708 Finality and effect of OPM FLSA claim decision.
551.709 Availability of information.
551.710 Where to file an FLSA claim with OPM.
Subpart G--FLSA Claims and Compliance
Sec. 551.701 Applicability.
(a) Applicable. This subpart applies to FLSA exemption status
determination claims, FLSA pay claims for minimum wage or overtime pay
for work performed under the Act, and complaints arising under the
child labor provisions of the Act.
(b) Not applicable. This subpart does not apply to claims or
complaints arising under the equal pay provisions of the Act. The equal
pay provisions of the Act are administered by the Equal Employment
Opportunity Commission.
Sec. 551.702 Time limits.
(a) Claims. A claimant may at any time file a complaint under the
child labor provisions of the Act or an FLSA claim challenging the
correctness of his or her FLSA exemption status determination. A
claimant may also file an FLSA claim concerning his or her entitlement
to minimum wage or overtime pay for work performed under the Act;
however, time limits apply to FLSA pay claims. All FLSA pay claims
filed on or after June 30, 1994, are subject to a 2-year statute of
limitations (3 years for willful violations).
(b) Statute of limitations. An FLSA pay claim filed on or after
June 30, 1994, is subject to the statute of limitations contained in
the Portal-to-Portal Act of 1947, as amended (section 255a of title 29,
United States Code), which imposes a 2-year statute of limitations,
except in cases of a willful violation where the statute of limitations
is 3 years. In deciding a claim, a determination must be made as to
whether the cause or basis of the claim was the result of a willful
violation on the part of the agency.
(c) Preserving the claim period. A claimant or a claimant's
designated representative may preserve the claim period by submitting a
written claim either to the agency employing the claimant during the
claim period or to OPM. The date the agency or OPM receives the claim
is the date that determines the period of possible entitlement to back
pay. The claimant is responsible for proving when the claim was
received by the agency or OPM and for retaining documentation to
establish when the claim was received by the agency or OPM, such as by
filing the claim using certified, return receipt mail, or by requesting
that the agency or OPM provide written acknowledgment of receipt of the
claim. 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.
Sec. 551.703 Avenues of review.
(a) Negotiated grievance procedure (NGP) as exclusive
administrative remedy. If at any time during the claim period, a
claimant was a member of a bargaining unit covered by a collective
bargaining agreement that did not specifically exclude matters under
the Act from the scope of the NGP, the claimant must use that NGP as
the exclusive administrative remedy for all claims under the Act. There
is no right to further administrative review by the agency or by OPM.
The remaining sections in this subpart (that is, Sec. Sec. 551.704
through 551.710) do not apply to such employees.
(b) Non-NGP administrative review by agency or OPM. A claimant may
file a claim with the agency employing the claimant during the claim
period or with OPM, but not both simultaneously, regarding matters
arising under the Act if, during the entire claim period, the claimant:
(1) Was not a member of a bargaining unit, or
(2) Was a member of a bargaining unit not covered by a collective
bargaining agreement, or
(3) Was a member of a bargaining unit covered by a collective
bargaining agreement that specifically excluded matters under the Act
from the scope of the NGP.
(c) Judicial review. Nothing in this subpart limits the right of a
claimant to bring an action in an appropriate United States court.
Filing a claim with an agency or with OPM does not satisfy the statute
of limitations governing FLSA claims filed in court. OPM will not
decide an FLSA claim that is in litigation.
Sec. 551.704 Claimant's representative.
A claimant may designate a representative to assist in preparing or
presenting a claim. The claimant must designate the representative in
writing. A representative may not participate in OPM interviews unless
specifically requested to do so by OPM. An agency may disallow a
claimant's representative who is a Federal employee in any of the
following circumstances:
(a) When the individual's activities as a representative would
cause a conflict of interest or position;
(b) When the designated representative cannot be released from his
or her official duties because of the priority needs of the Government;
or
(c) When the release of the designated representative would give
rise to unreasonable costs to the Government.
Sec. 551.705 Filing an FLSA claim.
(a) Filing an FLSA claim. A claimant may file an FLSA claim with
either the agency employing the claimant during the claim period or
with OPM, but a claimant cannot pursue the same claim with both at the
same time. OPM encourages a claimant to obtain a decision on the claim
from the agency before filing the claim with OPM. However, this is a
matter of personal discretion and a claimant is not required to do
this; a claimant may use either avenue. A claimant who receives an
unfavorable decision on a claim from the agency may still file the
claim with OPM. However, a claimant may not file the claim with the
agency after receiving an unfavorable decision from OPM. An OPM
decision on a claim is final and is not subject to further
administrative review.
(b) FLSA claim filed with agency. An FLSA claim filed with an
agency should be made according to appropriate agency procedures. At
the request of the claimant, the agency may forward the claim to OPM on
the claimant's behalf. The claimant is responsible for ensuring that
OPM receives all the information requested in paragraph (c) of this
section.
(c) FLSA claim filed with OPM. An FLSA claim filed with OPM must be
made in writing and must be signed by the claimant or the claimant's
representative. Relevant information may be submitted to OPM at any
time following the initial submission of a claim to OPM and prior to
OPM's decision on the claim. The claim must include the following:
(1) The identity of the claimant (see Sec. 551.706(a)(2) regarding
requesting confidentiality) and any designated representative, the
agency employing
[[Page 52775]]
the claimant during the claim period, the position (job title, series,
and grade, or equivalent level) occupied by the claimant during the
claim period, and the current mailing address, commercial telephone
number, and facsimile machine number, if available, of the claimant and
any designated representative;
(2) A description of the nature of the claim and the specific
issues or incidents giving rise to the claim, including the time period
covered by the claim;
(3) A description of actions taken by the claimant to resolve the
claim within the agency and the results of any actions taken;
(4) A copy of any relevant decision or written response by the
agency;
(5) Evidence available to the claimant or the claimant's designated
representative which supports the claim, including the identity,
commercial telephone number, and location of other individuals who may
be able to provide information relating to the claim;
(6) The remedy sought by the claimant;
(7) Evidence, if available, that the claim period was preserved in
accordance with Sec. 551.702. The date the claim is received by the
agency or OPM becomes the date on which the claim period is preserved;
(8) A statement from the claimant that he or she was or was not a
member of a collective bargaining unit at any time during the claim
period;
(9) If the claimant was a member of a bargaining unit, a statement
from the claimant that he or she was or was not covered by a negotiated
grievance procedure at any time during the claim period, and if
covered, whether that procedure specifically excluded the claim from
the scope of the negotiated grievance procedure;
(10) A statement from the claimant that he or she has or has not
filed an action in an appropriate United States court; and
(11) Any other information that the claimant believes OPM should
consider.
Sec. 551.706 Responsibilities.
(a) Claimant--(1) Providing information to OPM. For all FLSA
claims, the claimant or claimant's designated representative must
provide any additional information requested by OPM within 15 workdays
after the date of the request, unless the claimant or the claimant's
representative requests additional time and OPM grants a longer period
of time in which to provide the requested information. The disclosure
of information by a claimant is voluntary. However, OPM may be unable
to render a decision on a claim without the information requested. In
such a case, the claim will be cancelled without further action being
taken by OPM. In the case of an FLSA pay claim, it is the claimant's
responsibility to provide evidence that the claim period was preserved
in accordance with Sec. 551.702 and of the liability of the agency and
the claimant's right to payment.
(2) Requesting confidentiality. If the claimant wishes the claim to
be treated confidentially, the claim must specifically request that the
identity of the claimant not be revealed to the agency. Witnesses or
other sources may also request confidentiality. OPM will make every
effort to conduct its investigation in a way to maintain
confidentiality. If OPM is unable to obtain sufficient information to
render a decision and preserve the requested confidentiality, OPM will
notify the claimant that the claim will be cancelled with no further
action by OPM unless the claimant voluntarily provides written
authorization for his or her name to be revealed.
(b) Agency. (1) In FLSA exemption status determination claims, the
burden of proof rests with the agency that asserts the FLSA exemption.
(2) The agency must provide the claimant with a written
acknowledgment of the date the claim was received.
(3) Upon a claimant's request, and subject to any Privacy Act
requirements, an agency must provide a claimant with information
relevant to the claim.
(4) The agency must provide any information requested by OPM within
15 workdays after the date of the request, unless the agency requests
additional time and OPM grants a longer period of time in which to
provide the requested information.
Sec. 551.707 Withdrawal or cancellation of an FLSA claim.
(a) Withdrawal. OPM may grant a request from the claimant or
claimant's representative to withdraw an FLSA claim at any time before
OPM issues its decision. The claimant or the claimant's representative
must submit the request in writing to OPM.
(b) Cancellation. OPM may, at its discretion, cancel an FLSA claim
if the claimant or the claimant's representative fails to provide
requested information within 15 workdays after the date of the request,
unless the claimant or the claimant's representative requests
additional time and OPM grants a longer period of time in which to
provide the requested information. OPM may, at its discretion,
reconsider a cancelled claim on a showing that circumstances beyond the
claimant's control prevented pursuit of the claim.
Sec. 551.708 Finality and effect of OPM FLSA claim decision.
(a) OPM will send an FLSA claim decision to the claimant or the
claimant's representative and the agency. An FLSA claim decision made
by OPM is final. There is no further right of administrative appeal.
However, at its discretion, OPM may reconsider its FLSA claim decision
when material information was not considered or there was a material
error of law, regulation, or fact in the original decision. The request
must be submitted in writing and received by OPM within 45 calendar
days after the date of the decision. At its unreviewable discretion,
OPM may waive the time limit.
(b) A decision by OPM under the Act is binding on all
administrative, certifying, payroll, disbursing, and accounting
officials of agencies for which OPM administers the Act.
(c)(1) Upon receipt of a decision, the agency employing the
claimant during the claim period must take all necessary steps to
comply with the decision, including adherence to compliance
instructions provided with the decision. All compliance actions must be
completed within the time specified in the decision, unless an
extension of time is requested by the agency and granted by OPM.
(2) The agency should identify all similarly situated current and
former employees to ensure that they are treated in a manner consistent
with the decision on FLSA coverage, informing them in writing of their
right to file an FLSA claim with the agency or OPM.
Sec. 551.709 Availability of information.
(a) Except when the claimant has requested confidentiality, the
agency and the claimant must provide to each other a copy of all
information submitted with respect to the claim.
(b) When a claimant has not requested confidentiality, OPM will
disclose to the parties concerned the information contained in an FLSA
claim file. When a claimant has requested confidentiality, OPM will
delete any information identifying the claimant before disclosing the
information in an FLSA claim file to the parties concerned. For the
purposes of this subpart, ``the parties concerned'' means the claimant,
any representative designated in writing, and any representative of the
agency or OPM involved in the proceeding.
[[Page 52776]]
(c) Except when the claimant has requested confidentiality or the
disclosure would constitute a clearly unwarranted invasion of personal
privacy, OPM, upon a request which identifies the individual from whose
file the information is sought, will disclose the following information
from a claim file to a member of the public:
(1) Confirmation of the name of the individual from whose file the
information is sought and the names of the other parties concerned;
(2) The remedy sought;
(3) The status of the claim;
(4) The decision on the claim; and
(5) With the consent of the parties concerned, other reasonably
identified information from the file.
Sec. 551.710 Where to file an FLSA claim with OPM.
An FLSA claim must be filed with the OPM Classification Appeals and
FLSA Program, 1900 E Street, NW., Washington, DC 20415-0001.
[FR Doc. E7-18027 Filed 9-14-07; 8:45 am]
BILLING CODE 6325-39-P