[Federal Register: May 26, 2006 (Volume 71, Number 102)]
[Proposed Rules]
[Page 30301-30317]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26my06-18]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 30301]]
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: Proposed rule.
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SUMMARY: The Office of Personnel Management (OPM) proposes to revise
the regulations issued under the Fair Labor Standards Act of 1938, as
amended (``FLSA'' or ``Act'') to update and harmonize OPM's regulations
with revisions made to the Department of Labor's regulations. The
revised regulations are intended to provide a clearer understanding of
coverage under the Act. These regulations apply to all employees in
agencies who are under OPM's jurisdiction for FLSA purposes.
DATES: Comments must be received on or before July 25, 2006.
ADDRESSES: There are multiple methods for submitting comments. Please
submit only one set of comments via one of the methods described.
Preferred Method for Comments: Send comments by e-mail to
fedclass@opm.gov, or send or deliver written comments to Mark Doboga,
Deputy Associate Director for Talent and Capacity Policy, U.S. Office
of Personnel Management, Room 6551, 1900 E Street, NW., Washington, DC
20415-9700; or fax comments to 202-606-4891. Comments received in
electronic form besides e-mail (CDs, floppy disk, or other media) will
not be accepted. All submissions received must include the RIN
3206-AK89. If you are responding by e-mail the following should appear
in the subject line: ``Comments on Proposed FLSA Regulations--OPM
RIN 3206-AK89.''
Please arrange and identify your comments on the regulatory text by
subpart and section number. If your comments relate to the
supplementary information, refer to the heading and page number.
Ensure your comments are submitted within the specified open
comment period. Before acting on this proposal, OPM will consider all
comments received on or before the closing date. Comments received late
will be considered only if it is possible to do so without incurring
expense or delay.
FOR FURTHER INFORMATION CONTACT: Georgeanna Emery, Human Resources
Specialist, by e-mail at fedclass@opm.gov, by telephone at 202-606-
3600, or by fax at 202-606-4891.
SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is
publishing a proposed rule to amend regulations to the Fair Labor
Standards Act, as amended (referred to as ``the Act'' or ``FLSA''). The
purpose of this amendment is to update and harmonize OPM's regulations
with certain changes made by the Department of Labor (DoL), Employment
Standards Administration, Wage and Hour Division, 29 CFR part 541, RIN
1215-AA14, Defining and Delimiting the Exemptions for Executive,
Administrative, Professional, Outside Sales and Computer Employees
(Federal Register, Vol. 69, No. 79, dated April 23, 2004).
As authorized by section 3(e)(2) of the Act, the provisions of the
Act apply to any person employed by the Government of the United
States, as specified in that Section. Section 4(f) of the Act
authorizes OPM to administer provisions of the Act with respect to any
person employed by an agency, with certain exceptions.
OPM's administration of the Act must comply with the terms of the
Act and the law does not require OPM's regulations to mirror the DoL's
FLSA regulations. OPM is revising its regulations to be consistent with
DoL'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.
Structure and Organization of These Proposed Regulations
We will address only those sections of title 5, part 551--Pay
Administration under the Fair Labor Standards Act, to which we propose
changes. Changes have been made to subparts A, B, F, and G. For ease of
discussion, comments regarding proposed changes/additions/deletions
will be found under the appropriate subpart and section headings.
Throughout the regulation we have inserted ``or equivalent'' to
cover non-General Schedule white-collar positions.
Subpart A--General Provisions
Section 551.101 General
New paragraph (c) of the proposed regulation discusses OPM's
requirement to be consistent with the DoL'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, OPM does not apply the highly compensated employee
criteria contained in 29 CFR 541.601 to determine FLSA exemption status
to harmonize with title 5, United States Code, and other statutory
Federal compensation pay level practices. (See also Billings v U.S.,
322 F.3d 1328, (Fed. Cir.2003)).
Section 551.102 Authority and Administration
We revised paragraph (c) to clarify that the DoL administers the
Act for the Government of the District of Columbia.
Section 551.103 Coverage
No change.
Section 551.104 Definitions
The definitions of the following terms have not changed:
Act or FLSA
Claim period
Emergency
Employee
Employer
Exempt area
FLSA exempt
FLSA nonexempt
Hours of work
Nonexempt area
Perform in connection with an emergency
Reckless disregard of the requirements of the Act
Statute of limitations
Suffered or permitted work
Title 5 overtime pay
Volunteer
Willful violation
Workday
Worktime
The definitions of the following terms were deleted:
[[Page 30302]]
Discretion and independent judgment--concept is now addressed in
revised Sec. 551.206
Essential part of administrative or professional functions--concept
is now covered by the definition of directly and closely related.
FLSA exemption status determination claim--concept is now addressed
in Sec. 551.702(a)
Foreign exemption--concept is now addressed in revised Sec.
551.209.
Management or general business function--concept is now addressed
in revised Sec. 551.206.
Participation in the executive or administrative functions of a
management official--concept is now addressed in revised Sec. 551.206.
Situations 1 through 4--no longer needed because of the elimination
of the 80 percent test, consistent with DoL changes.
Supervisory and closely related work--concept is now covered by the
definition of directly and closely related.
Temporary work or duties--term is now covered in Sec. 551.208.
Work of an intellectual nature--removed, consistent with DoL
changes.
Work of a specialized or technical nature--removed, consistent with
DoL changes.
The definitions of the following terms were revised:
Administrative employee
Agency
Claim
Claimant
Customarily and regularly
Employ
Executive employee
FLSA exemption status
FLSA overtime pay
FLSA pay claim
Formulation or execution of management programs or policies
Preserve the claim period
Professional employee
Primary duty
Recognized organizational unit
Trainee
Worktime in a representative workweek
Workweek
Workweek basis
Definitions were added for the following terms:
Directly and closely related
Educational establishment
Filed
Management
Official position
Two or more other employees
Discussion of Selected Terms
Claim and claimant were revised and filed was added to clarify that
someone other than the employee to whom the claim applies may file a
claim and preserve the claim period.
Directly and closely related now incorporates supervisory and
closely related work. Additionally, examples of specific occupations
were included in this definition to illustrate the proper use of this
new definition.
Formulation or execution of management programs or policies was
replaced with formulate, affect, interpret, or implement management
policies or operating practices and the definition revised.
Primary duty was revised to clarify when a duty serves as the
primary duty for exemption purposes even though it does not constitute
the major part (over 50 percent) of the employee's work.
Rate of basic pay has been defined in revised Sec. 551.203.
Recognized organizational unit was expanded 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,
and to harmonize with DoL.
Two or more other employees spells out that an employee, as used in
this context, is equal to a full time equivalent (FTE) position.
Workweek was revised by changing the verb ``shall'' to ``must'' for
added clarity and readability. We intend that this definition using the
verb ``must'' has the same meaning and effect as the previous
definition using ``shall.''
Workweek basis was revised to insert the word ``the'' before the
word ``averaging.'' The structure of the definition has been modified
by putting the exception statement in parentheses to make it clear that
averaging is not used except for firefighters and law enforcement
employees.
Subpart B--Exemptions and Exclusions
Section 551.201 Agency Authority
The proposed revision clarifies that an employing agency must
review and make a determination on each employee's exemption status.
Section 551.202 General Principles Governing Exemptions
This section was reorganized for clarity. We moved the discussion
of the nonexemption of certain categories of employees from paragraph
(e) of the current Sec. 551.202 to proposed Sec. 551.204.
Proposed paragraph (e) clarifies that the designation of an
employee as FLSA exempt or nonexempt ultimately rests on the duties
actually performed by the employee. Occupational or organizational
title alone is not sufficient basis for an FLSA exemption status
determination.
Section 551.203 Salary-Based Nonexemption
We deleted current Sec. 551.203--Exemption of General Schedule
employees, replaced it with a new section addressing salary-based
nonexemption, and provided a definition for rate of basic pay. This
brings OPM's regulations into closer harmony with DoL's approach in its
final regulations to extending FLSA protection to employees paid below
a certain level.
Section 551.204 Nonexemption of Certain Employees
This proposed section incorporates the nonexemption of certain
nonsupervisory white-collar employees who do not meet any of the
exemption criteria, and nonsupervisory employees in the Federal Wage
System or in other comparable trades, crafts, and laboring wage
systems.
Section 551.205 Executive Exemption Criteria
We changed the language to harmonize with DoL changes in the
description of executive work and elimination of the 80-percent test
for all employees.
Section 551.206 Administrative Exemption Criteria
Changes were made 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.
Section 551.207 Professional Exemption Criteria
Changes were made to harmonize with DoL changes in the description
of professional work. We moved the discussion of types of professional
exemptions in current Sec. 551.207 into new Sec. Sec. 551.214,
551.215 and 551.216.
Section 551.208 Effect of Performing Temporary Work or Duties on FLSA
Exemption Status
We clarified the ``30-day test'' to explain that performing
different work or duties for 30 consecutive calendar days may affect
that employee's exemption status. We also clarified the intent of Sec.
551.208, and the protective purpose of the FLSA in general.
Section 551.209 Foreign Exemption Criteria
We moved the definition of foreign exemption from Sec. 551.104 to
this section as subject definition is only addressed in this section.
[[Page 30303]]
Section 551.210 Exemption of Employees Receiving Availability Pay
No change. While no changes were made, we wish to draw attention in
this preamble to the fact that there are certain Criminal Investigators
who may not be covered under availability pay provisions of 5 U.S.C.
5545a. As stated in Sec. 550.181(b) `` * * * any Office of Inspector
General that employs fewer than five criminal investigators may elect
not to cover such criminal investigators under the availability pay
provisions * * *.'' Similarly, there are certain employees identified
as Game Law Enforcement Officers, but because of the kind of work they
perform these employees are not performing law enforcement work and
therefore do not receive Law Enforcement Availability Pay. In both
positions, the minimum wage and the hours of work and overtime pay
provisions of the FLSA are applicable if the positions are designated
as FLSA nonexempt.
Section 551.211 Statutory Exclusion
These proposed regulations adopt the Department of Homeland
Security's definition of ``Customs Officer'' (69 FR 35229 (2004)). In
DHS's regulations, 19 CFR 24.16(b)(7) reads as follows: Customs Officer
means only those individuals assigned to position descriptions entitled
``Customs Inspector,'' ``Supervisory Customs Inspector,'' ``Canine
Enforcement Officer,'' ``Supervisory Canine Enforcement Officer,''
``Customs and Border Protection Officer,'' ``Supervisory Customs and
Border Protection Officer,'' ``Customs and Border Protection
Agriculture Specialist,'' or ``Supervisory Customs and Border
Protection Agriculture Specialist.''
Section 551.212 Fire Protection Activities and 7(k) Coverage for FLSA
Pay and Exemption Determinations and Sec. 551.213 Law Enforcement
Activities and 7(k) Coverage for FLSA Pay and Exemption Determinations
We added two new sections to help identify activities subject to
section 7(k) of the Act for FLSA pay and exemption determinations,
provide examples of specific Federal occupations, and harmonize with
DoL regulations.
Section 551.214 Learned Professionals, Sec. 551.215 Creative
Professionals, and Sec. 551.216 Computer Employees
We added three new sections to address learned professionals,
creative professionals, and computer employees to harmonize with DoL
regulations. We provided examples of specific Federal occupations for
the learned and creative professionals, and examples of Federal work
situations for computer employees.
Subpart F--Child Labor
Section 551.601 Minimum Age Standards
We added new paragraph (c) to define hazardous Federal fire
protective activities for individuals under 18 years of age.
Section 551.602 Responsibilities
No change.
Subpart G--FLSA Claims and Compliance
Section 551.701 Applicability
No change.
Section 551.702 Time Limits
We clarified in paragraph (c) that the claimant is responsible for
retaining documentation to establish when a claim is received.
Section 551.703 Avenues of Review
No change.
Section 551.704 Claimant's Representative
No change.
Section 551.705 Filing an FLSA Claim
In paragraph (b), we corrected the reference from paragraph (b) to
paragraph (c).
Section 551.706 Responsibilities
No change.
Section 551.707 Withdrawal or Cancellation of an FLSA Claim
We clarified that OPM may grant a request from a claimant to
withdraw his or her claim.
Section 551.708 Finality and Effect of OPM FLSA Claim Decision
We clarified the reconsideration process, added a 45-day time limit
for requests for reconsideration to be submitted, and clarified an
agency's compliance responsibility.
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 would not have a
significant economic impact on a substantial number of small entities
because they would apply only to Federal agencies and employees.
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)
This proposed regulatory action will not impose any additional
reporting or recordkeeping requirements under the Paperwork Reduction
Act.
E.O. 12988, Civil Justice Reform
This proposed regulation is consistent with the requirements of
E.O. 12988. The regulation clearly specifies 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 proposed regulations would not have
Federalism implications because they would apply only to Federal
agencies and employees. The proposed regulations would 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 proposed regulations would 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.
Accordingly, the Office of Personnel Management is proposing to
amend title 5, Code of Federal Regulations, part 551, as follows:
PART 551--PAY ADMINISTRATION UNDER THE FAIR LABOR STANDARDS ACT
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).
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.
[[Page 30304]]
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 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
[[Page 30305]]
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 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) 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) Midway Atoll;
(9) Wake Island;
(10) Johnston Island; and
(11) 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 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
[[Page 30306]]
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 purposes
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) Midway Atoll;
(9) Wake Island;
(10) Johnston Island; and
(11) 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 to 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 to 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. 551.208, 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 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
[[Page 30307]]
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.
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 Effect of performing different work or duties for a
temporary period of time on FLSA exemption status.
551.209 Foreign exemption criteria.
551.210 Exemption of employees receiving availability pay.
551.211 Statutory exclusion.
551.212 Fire protection activities and 7(k) coverage for FLSA pay
and exemption determinations.
551.213 Law enforcement activities and 7(k) coverage for FLSA pay
and exemption determinations.
551.214 Learned professionals.
551.215 Creative professionals.
551.216 Computer employees.
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. All exempt work, regardless of category,
must be considered. The only restriction is that, when the requirements
of one category are more stringent, the combination of exempt work must
meet the more stringent requirements.
(g) Failure to meet the criteria for exemption under what might
appear to be the most 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 the exemption category, this is not essential. An exemption
may be based on a combination of functions, no one of which constitutes
the primary duty, or the employee's primary duty may involve two
categories which are intermingled and difficult to segregate. This does
not preclude designating an employee FLSA exempt, provided the work as
a whole clearly meets the other exemption criteria.
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. 551.208 (the effect of
performing temporary work or duties on FLSA exemption status); or
(2) The employee is subject to Sec. 551.209 (the foreign
exemption); or
(3) The employee is a professional engaged in the practice of law
or medicine as prescribed in paragraphs (c) and (d) of Sec. 551.214.
(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
[[Page 30308]]
F; special rate supplement under 5 CFR 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. 551.208 (the
effect of performing temporary work or duties on FLSA exemption status)
or Sec. 551.209 (the foreign exemption)) 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 knowledges 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. 551.208 (the effect of performing temporary work or duties on
FLSA exemption status) or Sec. 551.209 (the foreign exemption).
Sec. 551.205 Executive exemption criteria.
(a) An executive employee is an employee whose primary duty is
management (as defined in section 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 four hours for one supervisor and four 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 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 the 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;
(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
[[Page 30309]]
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.
(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.
(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 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. The learned professionals, creative
professionals, and computer employees are described in Sec. Sec.
551.214, 551.215, and 551.216.
Sec. 551.208 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 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--
[[Page 30310]]
(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
551.207; 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 2 or
3 days, and 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
or duties 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. The exemption status of 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. 551.209 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 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
[[Page 30311]]
employee were permanently stationed in any nonexempt area; and
(ii) The agency must determine the employee's exemption status for
that workweek by applying Sec. 551.208.
(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. 551.210 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; and
(b) A pilot employed by the United States Customs Service 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. 551.211 Statutory exclusion.
A customs officer who receives overtime pay under subsection (a) or
premium pay under subsection (b) of section 267 of title 19, United
States Code, for time worked may not receive pay or other compensation
for that work under any other provision of law. As provided in 19 CFR
24.16, the term customs officer means only those individuals assigned
to position descriptions entitled ``Customs Inspector,'' ``Supervisory
Customs Inspector,'' ``Canine Enforcement Officer,'' ``Supervisory
Canine Enforcement Officer,'' ``Customs and Border Protection
Officer,'' ``Supervisory Customs and Border Protection Officer,''
``Customs and Border Protection Agriculture Specialist,'' or
``Supervisory Customs and Border Protection Agriculture Specialist.''
Sec. 551.212 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. Sec. 551.501(a)(1) and
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; 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. The following employees
are engaged in fire protection activities for the purpose of pay under
section 7(k) of the Act as provided for in Sec. Sec. 551.501(a)(5) and
551.541:
(1) 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;
(2) 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;
(3) Temporary employees hired solely to perform fire suppression
work on an as-needed basis;
(4) 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; and
(5) Members of rescue and ambulance crews in any unit (whether part
of a fire department or not) which is designated as the unit first
called upon to provide such services in actual or potential fire
emergencies, provided that:
(i) Crew members have received intensive training in specialized
rescue and first aid procedures applicable to fire emergencies, and
(ii) The crew does, in fact, respond to actual or potential fire
emergencies on a regular and recurring basis.
(d) Not engaged in fire protection activities. The following
employees are not engaged in fire protection activities for the purpose
of pay under section 7(k) of the Act as provided for in Sec. Sec.
551.501(a)(5) and 551.541:
(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 suppression work on an as needed basis,
provided that the fire suppression work constitutes less than 80
percent of the employees' hours of work within any workweek; and
(4) Employees on rescue and ambulance crews that provide those
services in support of fire protection 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 services).
Sec. 551.213 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. Sec. 551.501(a)(1) and
551.541).
(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; or
(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; or
(3) Planning and conducting investigations relating to alleged or
suspected violations of criminal laws,
[[Page 30312]]
including the arrest of suspected or wanted persons under a statutorily
prescribed arrest authority; or
(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 pay under
section 7(k) of the Act as provided for in Sec. Sec. 551.501(a)(5) and
551.541:
(1) Employees in positions properly classified to the 0083 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;
(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.
551.210 (the 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. Sec.
551.501(a)(5) and 551.541:
(1) Employees whose primary duties concern the protection of
Government property from hazards such as sabotage, espionage, theft,
fire, 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).
Sec. 551.214 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. Field of science or learning 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. Customarily
acquired by a prolonged course of specialized intellectual instruction
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 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
[[Page 30313]]
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.
Specific Professions
(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 (the 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. Employees
engaged in internship or resident 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 (the 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 exempt
learned professionals. 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). 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
establishment.
(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
[[Page 30314]]
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 (the 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 three academic years of
pre-professional study in an accredited college or university plus a
fourth 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 four 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 four 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 four-year
advanced degrees, most specialized paralegal programs are two-year
associate degree programs from a community college or equivalent
institution. However, the learned professional exemption is applicable
to paralegals who possess advanced, specialized 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. 551.215 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. 551.216 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 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
[[Page 30315]]
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 part. 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.
4. Revise Subpart F to read as follows:
Subpart F--Child Labor
Sec.
551.601 Minimum age standards.
551.602 Responsibilities.
Sec. 551.601 Minimum age standards.
(a) 16-year minimum age. The Act, in section 3(l), sets a general
16-year minimum age, which applies to all employment subject to its
child labor provisions, with certain exceptions not applicable here.
(b) 18-year minimum age. The Act, in section 3(l), also sets an 18-
year minimum age with respect to employment in any occupation found and
declared by the Secretary of Labor to be particularly hazardous for the
employment of individuals of such age or detrimental to their health or
well-being.
(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 fire-fighting 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;
(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.
Sec. 551.602 Responsibilities.
(a) Agencies must remain cognizant of and abide by regulations and
orders published in part 570 of title 29, Code of Federal Regulations,
by the Secretary of Labor regarding the employment of individuals under
the age of 18 years. These regulations and orders govern the minimum
age at which persons under the age of 18 years may be employed and the
occupations in which they may be employed. Persons under the age of 18
years must not be employed in occupations or engage in work deemed
hazardous by the Secretary of Labor.
(b) OPM will decide complaints concerning the employment of persons
under the age of 18 years. Complaints must be filed following the
procedures set forth in subpart G of this part.
5. 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.
661.707 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.
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
[[Page 30316]]
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 negotiated grievance procedure, the
claimant must use that negotiated grievance procedure 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 negotiated grievance procedure.
(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 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
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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.
(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. 06-4886 Filed 5-25-06; 8:45 am]
BILLING CODE 6325-39-P