Raiders of the Lost Art, Part Two: Analysis of an FLSA Arbitration Case

I noted in part one of this article that I would follow up
with an analysis of a grievance arbitration case that I think will help
illustrate why Michael Snider and his law firm, Snider & Associates, as
well as others, are winning cases against Federal agencies or forcing
settlements again and again. So, here
goes:

As part of a grievance filed by the American Federation of
Government Employees (AFGE) against the Department of Housing and Urban
Development (HUD), the parties agreed that the first positions to be addressed
by the arbitrator were HUD’s Equal Opportunity (EO) Specialists, GS-11 through
15.  

At the hearing, both parties had the opportunity to present
testimony, documents and other evidence; to examine and cross-examine
witnesses; and to challenge documents and other evidence offered by the other
party. 

The parties stipulated that: 

I am not a legal strategist, but I do work with some very
astute government attorneys on a continuing basis, and I am confident that they
would have advised agency management to do one of two things in this case: not sign the stipulations, which essentially
amounted to an admission that HUD had violated law and regulation, both before
and after the grievances were filed, or settle the case.  

The first stipulation reflected a practice –designating positions
as exempt or nonexempt solely or primarily based on grade – which was common
years ago and was consistent with OPM guidance at the time. However, the union argued that in AFGE v.
OPM, 821 F.2d 761, decided by the D.C. Circuit Court of Appeals in 1987, it had
successfully challenged OPM’s guidance that all Federal employees classified at
GS-11 or above were presumptively FLSA exempt, noting that OPM’s regulation
conflicted with one published by the Department of Labor which stated that all
employees are presumptively FLSA nonexempt. The D.C. Circuit ruled that “OPM must defer to the (FLSA) so that any
employee entitled to overtime compensation under the (FLSA) receives it under
the civil service rules.” 

As for the second stipulation, there was nothing wrong with
the agency making another FLSA determination after the grievance was filed; in
fact, I think it was a very good idea. The
problem was that the agency again relied strictly on the position descriptions
(PDs). To many non-classifiers, it would
make perfect sense to base an FLSA determination on the official position
description, but PDs are often old and in my experience positions are not
static but tend to change over time, in light of such factors as the interests
and priorities of the incumbent and of the supervisor, mission changes,
reorganizations, etc. 

The third stipulation had the effect, I believe, of
conceding that the agency did not follow the regulations again, in this case
meaning 5 CFR 551.202(i)). Ouch!

I briefly alluded in the earlier article to the fact that I
had run across some OPM training material, circa 1998, during my research. OPM recommended in “How to Make Exemption
Status Determinations Under the Fair Labor Standards Act (FLSA),” that the
classifier “Verify the accuracy of the position description (e.g., interview
the incumbent and supervisor) and validate the classification. Remember that the FLSA exemption status is
based on the duties the employee actually
performs (5 CFR 551.202(i)) rather than what is described in the position
description.” (emphasis in original) 

In light of the stipulations
agreed to by the parties, I felt that that agency was fighting an uphill battle
and had to hope that the Equal Opportunity Specialists (EOSs) would testify that
their position descriptions were accurate as written – an unlikely prospect –
and/or that the management and supervisory officials who testified would be
able to support HUD’s determination that these specialists were exempt from the
FLSA.

HUD’s first witness was a Staffing & Classification
Specialist who had been in her position just 15 months. The arbitration took place in 2005, and the
classifier cited PDs dated 1992 and 1997 for Equal Opportunity Specialists, GS-360-12. She testified that in reaching her conclusion
that the positions were exempt, based on the FLSA definitions of the
administrative exemption, “she relied only on the PDs and OPM regulations…She
said she did not verify the accuracy of the PDs…She testified that she did not
review the actual job duties of the employees and she was unfamiliar with the
OPM requiring that FLSA exemption status is based upon the duties the employee
actually performs rather than what is described in the position
description…” 

On cross-examination, the classifier “testified that she did
not interview supervisors, employees or individuals that classified the two
GS-360 EOS positions previously…She said she did not analyze the positions at
the GS-9/11/12/13/14/15 levels.” The
classifier went on to testify that she had not verified the accuracy of the
PDs, that she was not familiar with the OPM publication “How to Make Exemption
Status Determinations…”, or with the statement that “FLSA exemption is based upon
the duties the employee actually performs rather than duties described in the
position description.” She conceded that
“the designation of an employee as FLSA exempt or non-exempt ultimately rests
on the duties actually performed by the employee and…that OPM regulations
require that the actual job duties be inspected.”

By the time the classifier had finished testifying, HUD’s
chances of prevailing in this case had dropped to near zero in my estimation. I don’t blame the classifier at all; I
believe she testified truthfully. But
what was agency management, and the HUD attorney(s) assigned to the case,
thinking in putting her on the stand? Given
what she had to say, and the fact that the agency had already stipulated that
the FLSA determinations were based on the PD and not on actual job duties, I
don’t see what HUD had to gain, even in the best-case scenario, by putting the
classifier through the agony of testifying as to what she didn’t do and didn’t
know about the FLSA designation process.  

Of course, HUD was still able to have managers and
supervisors testify about various aspects of the EO Specialist positions, but I
wasn’t particularly optimistic about that testimony, given the fact that, at
least in my experience, employees tended to have considerably more knowledge
about the jobs they were doing than did their supervisors; that was certainly
true of the employees who worked for me. 

The next agency witness was a Deputy Assistant Secretary who
testified that he had “very intimate knowledge regarding the duties and
responsibilities of GS-360 EOSs.” He averred
that EOSs “receive, review, analyze, investigate, and conciliate cases” and
“represent the department in instances where there have been findings of
discrimination, in testifying in court proceedings.” The HUD executive went on to say that EOSs
“are expected to possess analytical skills that allow them to review (and)
analyze …information, and make critical judgments regarding the worth of that
information, as it pertains to a fair housing investigation…” He further observed that they are “expected
to be able to review complex data sources…”

The Assistant Secretary testified that GS-12 EO Specialists
are “expected to perform their work with a minimal amount of direct
supervisions…as well as to provide assistance to lower graded
specialists…” He said that the “base
guide documents…are the Title 8 Handbook, other technical guidance memoranda,
the statute, and regulations that pertain to each law.” He further stated that that statute is “the
base authority for all the activities. And each of the specialists (is) expected to be able to interpret the
statutes and execute their responsibility with what the statute requires….The
specialists are not authorized  to
operate – or to supplement their judgment differently than what the handbook
and the statute (require)…”

As for complexity and impact, the Assistant Secretary
testified that “At the 12 level, the specialist is expected to be able to
conduct investigations that have a multiplicity of issues of persons who are to
be interviewed.” He observed that “If
the case is…complex…it would have a profound impact on the department’s responsibilities.”

The Assistant Secretary concluded his testimony by stating
that EO Specialists “are expected to exercise a high degree of independent
thought and judgment in executing their responsibilities.” And when they find “situations that render
the guide documents not useful, they are expected to revise their investigative
approach, as well as make independent judgments about how to proceed, without
being required to contact a supervisor to request authority to do so.”

The other managers and supervisors, several of whom directly
supervised EO Specialists, provided similar testimony about the work. 

The AFGE witnesses consisted of GS-12 and 13 EO
Specialists. GS-12s testified that they
spent most of their time conducting investigations. One employee said
she did not make final determinations and that, depending on the time of the
year, for example, when HUD was trying to reach organizational goals, she was
closely supervised. Cross examination
established that when the employee faced a novel situation, she would ask her
supervisor or the General Counsel staff for guidance.

Another GS-12 EO Specialist testified
that on August 14, 2005, she received a PD dated July 14, 1997, and that it was
not completely accurate, because it stated that GS-360 EOSs develop technical
assistance, while she used only HUD’s guidelines.

She testified that her primary
duties were to investigate discrimination complaints and that she spent 90% of
her time on that task and 10% on program work. She opined that the work was not varied and did not require creativity
because investigators simply follow the guidelines in the Investigator’s
Handbook; she described those guidelines as very comprehensive and said EO
Specialists are not allowed to deviate from them. When faced with a novel or complicated issue,
she said EO Specialists would go to regulations, then to their supervisor, to
the program center, and to the legal office, in that order.

On cross-examination, the employee
testified that she did not have a thorough knowledge of the rules, regulations,
statutes, fair-housing court case precedent and decisions, nor expert knowledge
of problem-solving techniques or high-level skill in interpreting laws,
executive orders, regulations and court decisions.   She said that there was no flexibility under
the Investigator’s Handbook except as the regulations require. She further testified that she did not
independently plan, direct and conduct her own work assignments. 

The next witness was a GS-13 EO
Specialist at HUD headquarters. He said
his “cause” findings were reviewed by his supervisor and that he used
guidelines, including the Federal HUD guidelines, and the Investigator’s
Handbook, from which he was not allowed to deviate. He said that he did have a thorough knowledge
of rules, regulations and statutes related to housing discrimination and that he
consider his work complex, but testified that at least one investigator in his
office had only a high school diploma.

Another GS-13 EO Specialist
testified that her primary duties were also discrimination complaint investigations. She said the investigative plan she developed
was submitted to her supervisor for review and then reviewed by legal. She combined the data into a final
investigative report and determination that was reviewed by her supervisor and
by legal. 

She testified that the difference
between the work of GS-11 and 12 EO Specialists and GS13s was “[t]he complexity
of the case…number of issues…number of bases, or just the subject matter is
more difficult.” She described the
Investigator’s Handbook as an extremely detailed guideline and said that
investigators were not allowed to deviate from it without permission.

HUD’s contentions: The GS-12 through15 EO specialist positions
met the primary duties test under the administrative exemption. The classifier testified that the work
performed by GS-360s is of great significance because errors would be costly to
HUD. For this reason, the jobs were
highly complex and highly demanding, and their decisions required a great deal
of judgment and creativity. The Deputy
Assistant Secretary testified that the EO Specialists’ discrimination
investigations had a profound impact on HUD’s enforcement policy.

AFGE’s contentions: HUD failed to prove it made a proper FLSA
determination based on the employees’ actual duties.  HUD stipulated that it originally classified
employees based solely on grade level, a per se FLSA violation. HUD also stipulated that the agency
classified employees as exempt based solely on position descriptions, which was
another per se FLSA violation. The clear
testimony revealed HUD classifiers never examined actual job duties, as
required by OPM written guidance, another per se FLSA violation. HUD could not then claim that reliance on OPM
regulations or guidance to avoid liquidated damages. The testimony of the classifier established
that HUD did not make a proper FLSA classification determination because she
admittedly did not interview any employees on their actual duties compared to
their PDs.

Award: The arbitrator found, on July 17, 2007, that
HUD had failed to meet its burden of proof that GS-360 Equal Opportunity
Specialists were FLSA exempt under the administrative exemption. He sustained the grievances filed by Council
222, American Federation of Government Employees, on June 18, 2003, and
December 24, 2003, ruling that GS-360 Equal Opportunity Specialists in grades
11, 12, 13, 14, and 15 were FLSA nonexempt. 

My take: Before reading the case, I was skeptical of
the arbitrator’s award, but I can’t say I found any fault with his logic. I did correctly guess that AFGE would use the
stipulations against HUD in its arguments. It still seems to me that the case was pretty much unwinnable for the
agency from the start, and I can’t understand why they took it forward. But, of course, I had the benefit of
hindsight, which is typically 20-20. 

What could HUD have
done differently? It did not seem to
me that the agency representatives anticipated the kinds of questions that Mr.
Snider and his associates were likely to ask on direct and cross-examination,
or even how at least one of its own witnesses was going to testify. I don’t think it would have been particularly
difficult to predict Mr. Snider’s hearing strategy, in that his website,
sniderlaw.com, tells actual and potential clients what the target agencies have
done wrong in making FLSA designations and how the law firm is going to beat
them. Not only is Mr. Snider
straightforward about that, but his website contains more information about the
FLSA and Title 5 overtime than anything I have seen produced by OPM. Nor did I see much evidence that HUD had, in
advance of the arbitration, taken a hard look at its own stance and actions,
probing for weaknesses and attempting to shore them up. 

As for the stipulations, I don’t think that the first one
was fatal, in that it referred to a non-specific time period (“sometime in the
past”) and could well have been demonstrated to be consistent with OPM guidance
at the time.

The problems were with the second and third
stipulations. The fact that the second
FLSA determinations, made after the grievance had been filed,
were based on the position descriptions, without relying on the actual duties
involved, was the torpedo that sank HUD’s ship, in my opinion.  

My overall observation is that AFGE and its representative,
Snider & Associates, were better prepared for the arbitration hearing than
was the agency. Given the law firm’s unquestioned
expertise in this area and its track record of wins and settlements, I think
agencies would be well-advised to either spend whatever time and effort are necessary
to make proper FLSA determinations and to show why its exempt determinations
are appropriate and consistent with the FLSA, OPM regulations, and case law, or
settle the grievances.

In the next, and final, chapter of this saga, I’ll talk
about lessons learned and potential agency strategies in dealing with FLSA
designations and related matters.