225 FW 6
Fair Labor Standards Act Position Designation


Date: July 20, 2010

Series: Personnel

Part 225: Classification, Pay, and Allowances



PDF Version


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.


Table 6-1: Nonexempt Determination Criteria


Apply to …

CFR Citations

Salary-based nonexemptions

·        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.


5 CFR 551.203



5 CFR 551.211


5 CFR 551.212


5 CFR 551.208

Position-based nonexemptions

·        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).

5 CFR 551.204


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.


Table 6-2: Exempt Determinations Criteria


Apply to…

CFR Citations

Executive exemptions

·        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).


5 CFR 551.205

5 CFR 551.104

Administrative exemptions

·        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.

5 CFR 551.206

Professional exemptions

·        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).

5 CFR 551.207

Learned professionals

·        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.

5 CFR 551.208

Creative professionals

·        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.

5 CFR 551.209

Computer professionals

·        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.

5 CFR 551.210

Foreign exemptions

·        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.

5 CFR 551.212

Availability pay exemptions

·        Criminal investigators who receive availability pay under 5 CFR 550.181(a).

5 CFR 551.213


Exemptions because of temporary duties or performing different work assignments from primary work

·        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.

5 CFR 551.211


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).



For information on the content of this chapter, contact the Division of Human Capital. For more information about this Web site, contact Krista Bibb in the Division of Policy and Directives Management.  

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