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Publications - Fair Labor Standards Act  (FLSA)
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Printable VersionPrintable Version

  • FLSA Guidance for Classifiers Making Code Determinations  (This article summarizes FLSA regulations found in Title 5 Code of Federal Regulations, Part 551 and FLSA laws in Title 29 U.S. Code, Part 202. It is not intended to replace or modify any part of the FLSA, or OPM or USDA regulations or policies.)
  • FLSA Code Worksheet (PDF; 9Kb)
  • FLSA Guidance for Managers & Employees  (This summary of the Fair Labor Standards Act (FLSA) regulations describes minimum wage and overtime entitlements, as well as administrative procedures by which covered work time must be paid.)


Guidance for Classifiers in Making Coding Determinations
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FLSA provisions: 

  • FLSA regulations in Title 5, Code of Federal Regulations (CFR), Part 551 describe minimum standards for wages and overtime entitlement and the administrative procedures on compensating time worked. 
  • The FLSA overtime rate is time and one-half for all overtime hours worked unless the position is exempt. FLSA exempt employees are limited to receiving overtime up to the GS-10 Step 1 level. 

FLSA exempt versus nonexempt:

  • The determination of exempt versus nonexempt status rests fully with the employer in the original designation and in any claim proceedings. Human resources personnel should discuss the FLSA determination and impact with the position's supervisor. Unless an employer can substantiate that the FLSA exemption criteria applies to the duties, the position must be considered nonexempt.
  • Incorrect determinations may result from inaccurate position descriptions. The designation of a position as FLSA exempt or nonexempt depends on the duties actually performed by the employee and the amount of time spent accomplishing those duties. Consequently, classifiers must assure that position descriptions (PD) are accurate and contain enough information on which to base the FLSA coverage determination. 
  • An exempt employee may file an FLSA claim at any time to challenge the correctness of the exemption status determination. 

FLSA exemption criteria: 

  • To be FLSA exempt, the duties performed by the employee must meet the executive, administrative, professional, foreign and/or special exemptions/exclusions criteria. These categories are not mutually exclusive; failure to meet the criteria for exemption under one category does not preclude exemption under another category. 
  • Do not base determinations on criteria not included in 5 CFR 551 (i.e., arbitrators' decisions that do not reference OPM regulations, Department of Labor rulings based on private sector situations, etc.). 
  • For positions in which the FLSA determination is not obvious, a detailed rationale should be documented and attached to the position description. 

OPM and USDA FLSA information: 

Points of Contact:

  • For questions on the interpretation and application of FLSA regulations and position coverage, please contact the classification specialists in the Employment and Classification Policy Branch, HRSE.
    For pay issues related to FLSA determinations, please contact the Pay and Leave Specialist of the Employment and Classification Policy Branch, HRSE.

Managers & Employees - How are FLSA Determinations Made?
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When making FLSA determinations, classification specialists compare the duties of a position against one of four categories. These categories define duties/positions which should not be covered (should be made exempt) by the FLSA. If a position meets the criteria in any of these categories, it is identified as "exempt." All employees who do not meet the criteria are coded as non-exempt and considered "covered by the provisions of the FLSA." (All positions GS-4 and below are automatically coded as non-exempt.) When making FLSA coverage determinations, certain criteria are narrowly construed to assure the work performed by an employee is clearly within the terms and spirit of the exemptions listed below. The burden of proof in determining FLSA categories rests with the agency. 

Managers & Employees - What are the FLSA Exemption Categories?
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The four FLSA exemption categories are: Executive Exemption, Administrative Exemption, Professional Exemption, and Foreign Exemption. 

Executive Exemption Criteria - Supervisors, Foremen and Managers who direct a federal agency or subdivision of an agency and regularly and customarily direct the work of at least three subordinate employees (excluding support employees) will be coded Exempt if their primary duties are to manage or supervise. This criteria is met if the employee meets both of the following instances: 

  • Authority to select or remove, and advance in pay or promote, or make other status changes of subordinate employees, or has authority to suggest and recommend such actions; and, 
  • Customarily and regularly exercises discretion and independent judgment in such activities as work planning and organization; work assignment, direction, review and evaluation; and other aspects of management of subordinates.

Administrative Exemption Criteria - An Advisor, Assistant, Representative of management, or a Specialist in a management or general business function or supporting service will be coded Exempt if they meet each of the following criteria: 

  • The employee's primary duty consists of work that significantly affects the formulation or execution of management policies or programs; or involves general management or business functions, or supporting services of substantial importance to the organization serviced; or involves substantial participation in the executive or administrative functions of a management official. 
  • The employee performs office or other predominantly non-manual work which is intellectual and varied in nature; or of a specialized or technical nature that requires considerable specialized training, experience, and knowledge; and, 
  • The employee must frequently exercise discretion and independent judgment, under only general supervision, in performing the normal day-to-day work.

Professional Exemption Criteria - A professional employee is a teacher who is engaged in the imparting of knowledge or in the administration of an academic program in a school system or educational establishment, or an employee who meets all of the following criteria will be coded Exempt: 

  • The employee's primary duty consists of work requiring knowledge in a field of science or learning which is customarily and characteristically acquired through education or training that meets the requirement for a bachelor's or higher degree, with major study in or pertinent to the specialized field; or is performing work, comparable to that performed by professional employees on the basis of specialized education or training and experience which has provided both theoretical and practical knowledge of the specialty; or work in a recognized field of artistic endeavor that is original or creative in nature and the result of which depends on the invention, imagination, or talent of the employee. 
  • The employee's work is predominantly intellectual and varied in nature, requiring creative, analytical, evaluative, or interpretive thought process for satisfactory performance; and, 
  • The employee frequently exercises discretion and independent judgment, under only general supervision, in performing the normal day-to-day work. 

Foreign Exemption Criteria - A foreign employee is coded Exempt if the employee is permanently stationed in an exempt area as identified by regulation. Also includes an employee not stationed in an exempt area, on temporary duty, who performs all week in a given workweek in an exempt area. Determination is made on a week to week basis. 

Managers & Employees - What about Overtime?
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The Agency has specific overtime pay rules it must follow for non-exempt employees. As with exempt employees, non-exempt employees receive overtime for all hours ordered and approved that are over 8 in a day or 40 in a week. However, the overtime rate is not capped at the GS-10 step 1 rate as it is with exempt employees. Instead, non-exempt employees receive overtime at time and one-half (1 ½) their actual hourly rate of pay. Non-exempt employees may also receive overtime pay for traveling. This includes overtime pay for travel on weekends to an overnight assignment away from the official duty station during hours that correspond to the employee's regular working hours, to travel as a passenger on a one-day assignment away from the official duty station, or to drive a vehicle or perform other work while traveling. Non-exempt employees may also receive overtime pay during periods of training if, for example, it is to improve their performance or is preparatory time for attendance at a training course. 

Managers & Employees - Where Can I Get More Information?
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For more information on FLSA classification determinations, contact your servicing classification specialist. FLSA overtime pay determinations should be referred to your servicing Leave and Compensation Unit (PDF; 14Kb) (LCU) Specialist.

Last Modified: December 13, 2007