The National Federation of Federal Employees union recently settled a Fair Labor Standards Acts (FLSA) grievance filed against the General Services Administration in 2002.   The settlement represents approximately 5,000 employees who will share in the $30 million dollar back pay award.  At issue was the determination that certain positions were exempt from the overtime pay provisions under the FLSA.  These determinations are commonly referred to as “non-exempt” or “exempt”.  The determination as to whether the work of the position is non-exempt or exempt is typically made when the position is classified.  These determinations cannot be mechanical; e.g., all GS-12 positions are exempt, etc.  The 5 CFR Part 551, Subpart B is specific when it states that agencies must make determinations of each employee’s exemption status.

In 2005 the FLSA Exemptions and Exclusions subpart was expanded considerably to add in-depth clarifying guidance and specific occupational information to assist agencies in understanding and applying the regulation correctly.

Making the correct determination is the agency’s responsibility and if that determination is questioned, the burden of proof is also the agency’s responsibility.

The Classifiers’ Consortium recommends that agencies conduct ongoing quality control review of FLSA determinations.  It may be a good time to review the determinations made on the positions in your organization to ensure that they are in compliance with the regulation.  It’s also a good time to review any agency or organizational guidance on making FLSA exemption determinations and to ensure that individuals responsible for making such determinations have received appropriate training and understand the importance and far-reaching impact of determination decisions.

The Classifiers’ Consortium can provide agencies with expert advice on FLSA determinations.  Our recent book, “Managing the Maze – Your Guide to Position Classification and Position Management” also contains checklists to assist in making FLSA determinations.  The book is available at (insert link).

Questions and comments can be submitted to Susan Custard at susanc@custardconsulting.com.