5 C.F.R. § 551.208 Effect of performing temporary work or duties on FLSA exemption status.
Title 5 - Administrative Personnel
Title 5: Administrative Personnel
PART 551—PAY ADMINISTRATION UNDER THE FAIR LABOR STANDARDS ACT
Subpart B—Exemptions and Exclusions
§ 551.208 Effect of performing temporary work or duties on FLSA exemption status.
(a) Applicability—(1)When applicable. This section applies only when an employee must temporarily perform work or duties that are not consistent with the primary or grade-controlling duty of the employee's official position description. The period of temporary work or duties may or may not involve a different geographic duty location. The FLSA exemption status of employees during a period of temporary 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 of the same grade, series code, basic duties, and FLSA exemption status as the employee's position.
(b) Effect on nonexempt employees. (1) A nonexempt employee who must temporarily perform work or duties that are not consistent with the primary or grade-controlling duty of the employee's official position description remains nonexempt for the entire period of temporary work or duties unless all three of the following conditions are met:
(i) 30-day test. The period of temporary work or duties exceeds 30 calendar days; and
(ii) Exempt work or duty. The employee's primary duty for the period of temporary work or duties is exempt work or duty as defined in this part; and
(iii) Positions at GS–7 or above, or at situation 3 or 4. The employee's position (including a position to which the employee is temporarily promoted) is properly classified in the General Schedule at GS–7 or above (or the equivalent level in other comparable white-collar pay systems) or properly classified in the Federal Wage System as a supervisor at situation 3 or 4 of Factor I of the Federal Wage System Job Grading Standard for Supervisors (or the equivalent level in other comparable wage systems).
(2) If a nonexempt employee becomes exempt under the criteria in paragraph (b)(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 now not entitled to the FLSA overtime pay received but may be owed title 5 overtime pay.
(c) Effect on exempt employees.(1) An exempt employee not covered by the special provision of paragraph (c)(3) of this section who must temporarily perform work or duties that are not consistent with the primary or grade-controlling duty of the employee's official position description remains exempt for the entire period of temporary work or duties unless all three of the following conditions are met:
(i) 30-day test. The period of temporary work or duties exceeds 30 calendar days; and
(ii) Not exempt work or duty. The employee's primary duty for the period of temporary work or duties is not exempt work or duty as defined in this part; and
(iii) Positions at GS–7 or above, or at situation 3 or 4. The employee's position (including a position to which the employee is temporarily promoted) is properly classified in the General Schedule at GS–7 or above (or the equivalent level in other comparable white-collar pay systems) or properly classified in the Federal Wage System as a supervisor at situation 3 or 4 of Factor I of the Federal Wage System Job Grading Standard for Supervisors (or the equivalent level in other comparable wage systems).
(2) If an exempt employee becomes nonexempt under the criteria in paragraph (c)(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 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 may now not be entitled to some or all of the title 5 overtime pay received but may be owed FLSA overtime pay.
(3) Special provision for exempt employees at GS–5 or GS–6, or below situation 3. The exemption status of certain exempt employees who must temporarily perform work or duties that are not consistent with the primary or grade-controlling duty of their official position description must be determined on a workweek basis for the period of temporary work or duties. Such employees are exempt employees whose positions (including a position to which the employee is temporarily promoted) are properly classified in the General Schedule at GS–5 or GS–6 (or the equivalent level in other comparable white-collar pay systems), or are properly classified in the Federal Wage System below situation 3 of Factor I of the Federal Wage System Job Grading Standard for Supervisors (or the equivalent level in other comparable wage systems). The exemption status determination of these employees will result in the employee either remaining exempt or becoming nonexempt for that workweek, as described in paragraphs (c)(3)(i) and (c)(3)(ii) of this section.
(i) Remain exempt. An exempt employee remains exempt for a given workweek only if the employee performs exempt work or duties for 80 percent or more of the worktime in that workweek.
(ii) Become nonexempt. An exempt employee becomes nonexempt for a given workweek only if the employee performs nonexempt work or duties for more than 20 percent of the worktime in that workweek.
(d) Emergency situation. Notwithstanding any other provisions of this section, and regardless of an employee's grade 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 (d)(2)(i) and (d)(2)(ii) of this section.
(i) Remain exempt. An exempt employee remains exempt for any workweek in which the employee performs exempt work or duties for 80 percent or more of the worktime in a given workweek.
(ii) Become nonexempt. An exempt employee becomes nonexempt for any workweek in which the employee performs nonexempt work or duties for more than 20 percent of the worktime in a given workweek.
[62 FR 67247, Dec. 23, 1997; 63 FR 2304, Jan. 14, 1998]
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