[Federal Register Volume 71, Number 102 (Friday, May 26, 2006)]
[Proposed Rules]
[Pages 30301-30317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4886]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 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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  Federal Register / Vol. 71, No. 102 / Friday, May 26, 2006 / Proposed 
Rules  

[[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.

-----------------------------------------------------------------------

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 
[email protected], 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 [email protected], 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

[[Page 30317]]

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