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6.1 What is the purpose of this chapter? This chapter:
A. Describes the policies and
procedures the Service uses to document Fair Labor Standards Act (FLSA)
determinations, and
B. Provides supplemental guidance
to Human Resources specialists to help them determine and document FLSA
decisions.
6.2 What is the scope of this chapter? This chapter applies to all
positions in the Service.
6.3 What are the authorities for this chapter?
A. The Fair Labor Standards Act of
1938 (29
U.S.C. 200-219).
B. Pay Administration under the
Fair Labor Standards Act (5
CFR Part 551).
6.4 What is the FLSA, and what does it mean for
employees? FLSA provides minimum standards for both wages and
overtime entitlements, and administrative procedures by which we must
compensate employees for covered work-time. FLSA also exempts specified employees
or groups of employees from the application of certain provisions.
6.5 What is the Service’s policy on FLSA exemptions?
A. We must:
(1) Make FLSA determinations based
on the criteria in 5
CFR Part 551 and supplemental Office of Personnel Management (OPM)
guidance, and
(2) Narrowly construe the criteria
to apply only to those employees who are clearly within the terms and spirit
of an exemption.
B. The designation of a position
as FLSA exempt or nonexempt depends on the duties employees actually
perform and the amount of time they spend accomplishing those duties. We
must make sure that employees’ Position Descriptions (PD) are accurate and contain enough information to make the
FLSA coverage determination.
C. PROHIBITIONS: Human Resources specialists:
(1) Must not use other criteria
(e.g., arbitrators’ decisions, Department of Labor decisions on private
sector employees, etc.) to make FLSA determinations.
(2) Must not presume a nonexempt or
exempt status based on a grade. Not all positions graded at GS-9 and below are
nonexempt. Do not use a check list to determine exemption status. Instead, Human Resources
specialists must analyze the duties for each determination.
D. All employees not specifically
excluded by another statute are covered under FLSA. Employees are nonexempt
from FLSA unless we determine that they meet the requirements of one or
more of the exemption criteria in 5
CFR, Part 551 and any supplemental OPM guidance (see section
6.7).
6.6 What terms do you need to know to understand this chapter? You can find definitions for
most of the terms we use in this chapter in 5
CFR 551.104. The two terms we use the most are:
A.
Exempt: An
exempt employee is not covered by the minimum wage and overtime provisions
of FLSA.
B. Nonexempt: A nonexempt employee is covered by
the provisions of FLSA.
6.7 What are the criteria the Service uses
to determine if an employee is nonexempt or exempt under FLSA? We use the following
criteria from 5
CFR 551:
A.
Nonexempt determinations: Table 6-1 describes the types of nonexempt status
determinations.
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Table 6-1: Nonexempt Determination Criteria
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Type
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Apply
to …
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CFR
Citations
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Salary-based
nonexemptions
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· Employees, including
supervisors, whose annual rate of basic pay is less than $23,600
· Exceptions are if the employee
is:
- Performing different work or duties for a temporary period of time on
FLSA status,
- Designated for the foreign exemption criteria, or
- A professional engaged in the practice of law or medicine as the
regulations prescribe.
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5
CFR 551.203
5
CFR 551.211
5
CFR 551.212
5
CFR 551.208
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Position-based
nonexemptions
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· Certain non-supervisory, white
collar employees (e.g., employees in equipment operating or protective
occupations and most clerical occupations) or non-supervisory employees
in the Federal Wage System or in other comparable wage systems (with the
same exceptions as we list above for salary-based nonexemptions).
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5
CFR 551.204
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B.
Exempt determinations: To be FLSA exempt, the duties the employee performs must meet the
executive, administrative, professional, foreign, or special
exemptions/exclusions criteria in Table 6-2. The categories are not
mutually exclusive. Failure to meet the criteria for exemption under one
category does not preclude exemption under another category.
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Table 6-2: Exempt Determinations Criteria
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Type
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Apply
to…
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CFR
Citations
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Executive
exemptions
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· Employees whose primary duties
are management of a Federal agency or any subdivision of the agency
(including the lowest recognized organizational unit with a continuing
function) and who:
- Customarily and regularly direct the work of two or more other
employees, and
- Have 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).
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5
CFR 551.205
5
CFR 551.104
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Administrative
exemptions
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· Employees whose primary
duties:
- Are performing office or non-manual work directly related to the
management or general business operations (as distinguished from
production functions), of the Service or our customers, and
- Include exercising judgment and independence on significant matters.
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5
CFR 551.206
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Professional
exemptions
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· Employees whose primary duties
are performing work that requires:
- Advanced knowledge in a field or science;
- Learning customarily acquired by a prolonged course of specialized
intellectual instruction; or
- Invention, imagination, originality, or talent in a recognized field of
artistic or creative endeavor.
· There are three basic types of
professionals: learned, creative, and computer professionals (each
discussed below).
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5
CFR 551.207
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Learned
professionals
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· Employees whose primary duties
are performing work that requires advanced knowledge (predominately
intellectual in nature and including work requiring the consistent
exercise of discretion and judgment).
· The knowledge must be:
-In a field of science or learning which includes the traditional
professions of law; medicine; theology; accounting; actuarial
computation; engineering; architecture; teaching; various types of
physical, chemical, and biological sciences; pharmacy; and other similar
occupations.
-Acquired by a prolonged course of intellectual instruction in a field
where specialized academic training is a standard prerequisite for
entering the profession.
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5
CFR 551.208
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Creative
professionals
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· Employees whose primary duties
are performing work that requires invention, imagination, originality, or
talent in a recognized field of artistic or creative endeavor, as opposed
to routine mental, manual, mechanical, or physical work.
· Employees in such fields as
music, writing, acting, and the graphic arts.
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5
CFR 551.209
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Computer
professionals
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· Computer systems analysts,
computer programmers, software engineers, or other similarly skilled
workers in the computer field who are eligible under sections 13(a)(1) and (17) of FLSA.
· Because job titles vary widely
and change quickly in the computer industry, we must not use job titles
alone to determine the applicability of this exemption.
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5
CFR 551.210
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Foreign
exemptions
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· Employees who live in or spend
all of their work week in an exempt area. Exempt areas include any
foreign country or U.S.
territory except for:
- A state of the United
States;
- The District of Columbia;
and
- American Samoa, Guam, Johnston Island, Commonwealth of the Northern
Mariana Islands, Midway Atoll, Outer Continental Shelf Lands (as defined
in the Outer Continental Shelf Lands Act, 67 Stat. 462), Palmyra,
Puerto Rico, the U.S. Virgin Islands, and Wake Island.
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5
CFR 551.212
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Availability
pay exemptions
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· Criminal investigators who
receive availability pay under 5 CFR 550.181(a).
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5
CFR 551.213
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Exemptions
because of temporary duties or performing different work assignments from
primary work
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· Employees performing work or
duties that are not consistent with the employee’s primary duties and are
for an extended period of more than 30 consecutive calendar days; or
· Employees performing work or
duties under designated emergency situations that directly threaten human
life or safety, serious damage to property, or serious disruption to
operations. In this case, nonexempt employees’ designations remain
nonexempt. Exempt employees’ designations will depend on the primary
duties the employees perform within a work week (see 5
CFR 551.211 (f)(2)). See 225 FW 7, Premium Pay
for the process for documenting changes in FLSA status.
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5
CFR 551.211
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C.
Statutory Exclusions: FLSA section 7(k) excludes the performance of certain activities from
nonexempt status because of other premium pay requirements. Those are:
(1)
Fire protection activities described in 5
CFR 551.215. This exemption does not
apply to wildland fire fighters.
(2)
Law enforcement activities described in 5
CFR 551.216.
6.8 How does the Service document FLSA determinations and changes to
determinations? Human
Resources specialists must use FWS Form 3-2407,
FLSA Determination Worksheet, to document all FLSA determinations and any
changes to determinations based on classification review. The determination
must also appear on the PD Coversheet (OF-8).
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