Instruction 511-1: Position Classification

Issuance Date:

May 16, 2018

Material Transmitted:

HHS Instruction 511-1, Position Classification, dated 05/16/2018

Material Superseded:

HHS Instruction 511-1, Position Classification, dated February 15, 2013.

Background:

This Instruction has been revised to clarify the roles in the classification appeals process, provide guidance on position management and classification reviews, and address the Fair Labor Standards Act.

This issuance is effective immediately and must be carried out in accordance with applicable laws, regulations, bargaining agreements, and Departmental policy.

/s/

Christine M. Major
Deputy Assistant Secretary for Human Resources
Chief Human Capital Officer

511-1-00: Purpose

This Instruction outlines the policies, requirements, and responsibilities for administering the Department’s position classification, job grading, and position management programs, consistent with federal law, regulations, and the Office of Personnel Management (OPM) guidance.

511-1-10: References

511-1-20 Coverage and Exclusions

Coverage. All HHS General Schedule (GS) and Federal Wage System (FWS) positions subject to the provisions of 5 C.F.R. §§ 511 and 532.
Exclusions.
1. Senior Executive Service (SES), Scientific and Professional (ST), Senior-Level (SL) positions
2. Positions covered by authorities specifically exempt from 5 U.S.C. Chapter 51, Classification
Bargaining Unit Employees. The provisions of this Instruction pertaining to conditions of employment of bargaining unit employees are fully negotiable in accordance with 5 U.S.C. § Chapter 71. Therefore, when the provisions of this Instruction differ from the requirements contained in applicable collective bargaining agreement(s), the agreement takes precedence for bargaining unit employees.

511-1-30 Definitions

Appellant. An employee who has submitted a classification appeal.
Classification Appeal. A classification appeal is a written petition from an employee, or his/her written designated representative, for a change in the classification of his/her current position of record.
Classification Appeal Decision. A classification appeal decision is the written determination and justification of HHS’s or OPM’s final classification of an appealed position.
Desk Audit. An evaluation of a particular position to determine whether duties and responsibilities correspond to the actual job classification and salary grade. An employee or supervisor can request a desk audit, or they may be conducted as part of a position classification review program.
Employee Representative. An employee may designate a representative of his/her choice to assist in the preparation and presentation of a classification appeal. The representative is free from restraint, interference, coercion, or reprisal for performing representative duties.
Federal Wage System. A classification and pay system that covers appropriated fund and nonappropriated fund employees who are paid by the hour and work in trades, craft, and labor occupations.
FLSA Exempt Employee. One who is not covered by the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA or Act).
FLSA Nonexempt Employee. One who is covered by the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA or Act).
Grade. The numerical designation, GS−1 through GS−15, which identifies the range of difficulty and responsibility, and level of qualification requirements of positions included in the General Schedule.
General Schedule. A classification and pay system covering the majority of civilian federal employees in professional technical, administrative, and clerical positions.
Job Family. A broad grouping of trades, craft, and labor occupations related by similar functions; materials or equipment used; or knowledge and skills required.
Position Description (PD). A PD documents the major duties and responsibilities of a position assigned by management.
Occupational Group. A major category of white-collar occupations, covering a group of associated or closely related occupations in the General Schedule (e.g., the Accounting and Budget Group, GS−500; the Engineering and Architecture Group, GS−800; the General Administrative, Clerical, and Office Services Group, GS−300, etc.).
Series. A subdivision of an occupational group or job family consisting of positions with similar specialized line of work and qualification requirements, and identified by a position title and number (series).

511-1-40 Responsibilities

Deputy Assistant Secretary for Human Resources (DASHR), Office of Human Resources (OHR):
1. Develops Department-wide policy and guidance regarding position classification in accordance with HHS and OPM policy, procedures, and guidance and all applicable federal laws and regulations.
2. Makes determinations on all classification appeals submitted to HHS, in accordance with regulatory requirements.
3. Makes determinations on FLSA claims filed with HHS.
4. Reviews and submits any Administrative Law Judge classification issues identified by Operating and Staff Divisions (OpDiv/StaffDivs) to OPM for action.
5. Periodically reviews OpDiv/StaffDiv position classification programs.
OpDiv/StaffDiv Human Resources Offices (OHROs):
1. Comply with this Instruction, any HHS and OPM policy, procedures guidance and all applicable federal laws and regulations.
2. Ensure GS and FWS positions are accurately classified in accordance with published OPM position classification standards by creating PDs which clearly distinguish each position's appropriate title, series, and grade.
3. Ensure assignments reflect application of sound position management principles, including organizing work in an efficient, effective manner and using resources economically to carry out the missions of their organizations.
4. Establish a classification review program and regularly review its OpDiv/StaffDiv position descriptions to ensure accuracy.
5. Adhere to HHS Instruction 511-3, Noncompetitive Promotion Based on Reclassification or Accretion of Duties, when considering exceptions to the merit promotion procedures.
6. Obtain written concurrence from the Office of General Counsel (OGC) prior to classifying Attorney, GS-0905, positions outside of OGC.
7. Obtain written concurrence from the Office of the Assistant Secretary for Public Affairs (ASPA) prior to classifying Public Affairs Specialists, GS-1035-14 and above, positions.
8. Obtain written concurrence from the Office of the Inspector General prior to classifying Criminal Investigator, GS-1811, positions.
9. Ensure employees have copies of their PDs and objectively, expeditiously, and fairly consider employee concerns regarding the accuracy of their PDs, the classification of their positions, and classification appeals.
10. Submits supplemental information to OHR for classification appeals to HHS; notifies the HHS OHR Classification Manager immediately upon knowledge of an employee’s classification appeal to OPM; and provides OHR a copy of OPM’s decision, as applicable.
11. Makes FLSA determinations at the time of classification, and forwards FLSA claims filed with HHS, along with supplemental information, to OHR for decision.

511-1-50 Position Management

By law, agencies are given the authority and responsibility to establish, classify, and manage their own positions. Supervisors and managers play major roles in the management and classification of subordinate positions. As a result, they are responsible for assuring a sound position structure in the organizations they lead to ensure the effective use of limited financial and personnel resources.
Good position management can be defined as a carefully designed position structure which blends the skills and assignments of employees in order to successfully carry out the organization's mission or program while maintaining a cost-effective operation.
Sound position management reflects a logical balance between the employees needed to carry out the major functions of the organizational unit and those needed to provide adequate support; between professional employees and technicians; between fully trained employees and trainees; and between supervisors and subordinates.
Good position management also requires consideration of grade levels of the positions involved. Grades should be commensurate with the work performed to accomplish the organization's mission and should not exceed those grades needed to perform the work of the unit. A carefully designed position structure results in reasonable and supportable grade levels.
In accordance with 5 CFR 335.103 and HHS Instruction 511-3, Noncompetitive Promotion Based on Reclassification or Accretion of Duties, HRDs may exclude certain promotions from the competitive procedures in very specific circumstances (i.e., the reclassification of a position without significant change in the duties and responsibilities due to issuance of a new classification standard or the correction of an initial classification error, or accretion of duties due to the addition of substantive higher graded responsibilities). Such actions should be rare and used only in situations where a strong basis for an exception to the competitive promotion process exists. Competitive procedures must be followed when these circumstances are not explicitly met and documented.
While there is no supervisor to employee ratio required by OPM, supervisors must perform supervisory duties at least 25% of their time. Supervisory duties are defined in the General Schedule Supervisory Guide (GSSG). OpDiv/StaffDivs must determine the appropriate ratio of managerial and supervisory positions to non-supervisory workers and prevent the excessive layering of supervision and unwarranted use of support positions. The appropriate ratio of professional, technical, clerical and wage positions consistent with the proportion of such work occurring in the organization must also be decided.

511-1-60 Position Descriptions

PD. OHROs are responsible to ensure jobs are accurately classified in accordance with published OPM position classification standards by creating PDs - or utilizing standardized positions descriptions when available - which clearly distinguish each position's appropriate title, series, and grade.

An accurate and current statement of the major duties, responsibilities, and supervisory relationships must be developed and maintained for each position covered by this Instruction. The PD of each position must be kept up to date and include information about the job which is significant to its classification.
1. Non-supervisory GS positions. In order to maintain uniformity throughout HHS, PDs for non-supervisory positions shall be prepared in either the narrative or factor evaluation system (FES) format as appropriate. The FES format must be used when the classification of the position is based on a FES standard.
2. Non-supervisory FWS positions. FWS positions are classified using the FWS Job Grading System to determine the occupational series, title, grade, and pay system for positions performing trades, craft, and labor work. See Classifying Federal Wage System Positions for more details.
3. Supervisory Positions. All first and second level supervisory positions must be described in the supervisory format, which will facilitate comparison with OPM’s General Schedule Supervisory Guide (GSSG) or FWS Job Grading Standard for Supervisors, as appropriate.
Evaluation Statement. An evaluation statement is a written record of the rationale used to classify and grade a position. Evaluation statements are designed to provide consistency and continuity in classification and grading decisions. Extensive statements are required when the evaluation of the factor is not self-evident by reference to the appropriate standard.
1. Narrative Evaluation Statements. The length, in-depth discussion, and format of an evaluation statement should be tailored to the individual classification decision. The evaluation statement should include a concise, but thorough comparison of the grade-controlling duties and responsibilities consistent with the classification standard(s) used to evaluate the position. It should show how the assignment meets, exceeds, or falls short of the various classification elements and factors in the standard. Exhibit A provides an example narrative evaluation statement format.
2. FES Evaluation Statements. For positions classified by reference to a FES standard, the level and point values for each factor and the GS grade must be shown on the FES form in the Evaluation Statement. Exhibit A provides an example FES evaluation statement format.
Career Ladder Positions. For positions that are identified as career ladders, OpDivs/StaffDivs may choose to write a Statement of Difference that clearly defines the significant differences of a developmental position, or may write a complete PD for each grade level. A Statement of Difference should be used for no more than two grade levels below an official full performance level PD.
1. Each career ladder position should clearly define significant differences in assigned duties and responsibilities and supervisory relationships from the full performance position.
2. Each PD must contain sufficient information to support a valid classification action and permit the development of relevant performance standards. Whenever substantial revisions are made to the full performance position, the career ladder PDs/Statement of Difference(s) must be reviewed for potential changes.
An official classified PD includes:
1. A certified Optional Form (OF)-8, as a PD coversheet, signed by the immediate supervisor and the HR Classifier, at a minimum;
2. PD (see Exhibit A for samples);
3. An evaluation statement with applicable OPM references used to classify a position (see Exhibit A for samples);
4. Employee bargaining unit status form, as applicable
5. A Position Sensitivity Designation form (PDAT), signed by the supervisor confirming accuracy of employee’s duties/responsibilities;
6. A completed “FLSA Status Determination Questionnaire for Managers and Supervisors” properly completed and signed by the first line supervisor (Exhibit B); and
7. A completed “HHS FLSA Classifier Checklist” properly completed and signed by the Classifier (Exhibit C).
The original copy of the classified PD is maintained by the OHRO. Copies of the official description shall be provided to the organization and to each employee assigned to the position. Supervisors are responsible for assuring employees are given a copy of their current PD.
PD Review. OpDiv/StaffDivs should review all PDs under their jurisdiction bi-annually to ensure that they are current and accurate. This review shall include a review of the position sensitivity designation; bargaining unit status; and FLSA Status Determination Questionnaire for Managers and Supervisors, in consultation with the OHRO.

The classification of a vacant position should also be reviewed before action is taken to fill it, since this represents the best opportunity to take any corrective action required. Identical/additional positions which are filled frequently should be reviewed often to ensure their accuracy.
Desk Audits. Desk audits to determine whether duties and responsibilities correspond to the actual job classification and salary grade are necessary for a variety of reasons, e.g., recent establishment of a new position, which may be based on projected duties; introduction of new technology affecting major duties of a position; new OPM classification standards; apparent accretion/erosion of grade controlling duties, or at the request of an employee or supervisor. Desk audits may be conducted during a classification review by the specialist responsible for classifying the position, or for individual classification actions. A background statement about the desk audit should be addressed in the evaluation statement. A desk audit does not need to be conducted for each classification action. The number and frequency of audits depend on local classification needs. Note: If a new position is established based on projected duties, the position should be audited approximately six months after it is filled to ensure the PD accurately describes the duties that are being performed by the incumbent.

511-1-70 Position Classification Reviews

Each OpDiv/StaffDiv must establish a classification review program/plan to ensure that the classification accuracy requirements of 5 U.S.C. 5107 are met within their division. There are a wide variety of situations which could necessitate a classification review. Some indicators of the appropriate timing for such reviews include:
1. Most efficient organization (MEO) studies;
2. Changes in mission and functions;
3. Change in organization structures;
4. Realignment of duties and responsibilities; or
5. Other applicable circumstances.
The position classification review plan includes the specific responsibilities of the OHRO, supervisors and managers, and the types of organizational or operational events which indicate the need for classification reviews.
Post audit reviews of the classification of individual positions or organizational components can be conducted by OHROs at any time as special needs are identified by line management.
The scope of the classification reviews, as well as the frequency, should be tailored to the needs of the individual organization. A review could cover a section within a service/division/etc. or a group of services/divisions/etc., or it could comprise positions in an occupational group, e.g., technical support positions, computer-related positions, etc.
The classification of each position under review shall be evaluated and certified as correct by an official with HR authority to classify the positions involved. Desk audits are conducted and evaluation statements prepared as deemed necessary by the appropriate delegated classification authority.
Adequate OHRO records shall be maintained to reflect the completion of the classification review, to include desk audit reports, supervisory conformance checks, etc. These records are subject to review during OHR Accountability audits or other visits.
An employee whose position is changed to a lower grade based as the result of a classification review is entitled to a prompt written notice from the OHRO, specifying the effective date. The notice shall also inform the employee of:
1. The employee’s right to submit an appeal to HHS (if it has the authority to take the action) or to OPM;
2. The information which must be provided to HHS or OPM supporting the appeal;
3. The time limits within which the employee must file an appeal in order to establish or preserve the right to retroactive adjustment in connection with a favorable decision; and
4. The employee’s entitlement to grade and/or pay retention under 5 U.S.C. 53, Subpart VI, sections 5362-5363.
OHROs are required to consult with the OHR Classification Program Manager on proposed classification actions affecting 20 or more substantially similar positions, prior to effecting the decisions. (For the purposes of this paragraph, the term "positions" refers to the number of employees.) Consultation is also required if fewer than 20 substantially similar positions are directly affected and it is anticipated that the decision will have a "ripple" effect on a significant number of other positions within HHS.

511-1-80 Implementing OPM Classification Standards

New or updated classification standards and/or classification guides must be applied to covered positions within 12 months of OPM’s issuance date, or by the date designated by OPM.
The following strategies may be considered when implementing new classification standards:
1. Apply first to new positions and positions under classification appeal.
2. Apply to vacant positions prior to initiating recruitment.
3. Apply standards to positions where a grade change is expected.
4. Process mass changes, as appropriate, rather than individual personnel actions.
5. Make pen-and-ink changes for minor revisions with no title, series, or grade impact.
6. Annotate the new classification standard on the OF-8, PD coversheet, in block 22.
If an employee, in a position covered by a new/revised classification standard, files an appeal prior to the implementation of the new OPM standard, the OHRO must immediately apply the new standard so the appeal can be properly adjudicated. See Section 511-1-100 for more information on the appeals process.
If an OpDiv/StaffDiv has a valid reason for requesting an extension, a justification, including the requested extension timeframe; the reason for the extension; the number of positions impacted by the classification standard update; and any other pertinent information should be sent to OHR for review, approval, and if warranted, OHR will send the request forward to OPM. The request must be sent within 60 calendar days of notification from OPM of the new classification standard.

511-1-90 Classification of Special Series

GS-905 Attorney Positions, all grade levels
1. Attorney positions may not be established outside of the Office of the General Counsel (OGC) without the concurrence of OGC. (Note: In the Food and Drug Administration, the Office of Chief Counsel reports to the OGC’s Food and Drug Division and seeks approval directly from the OGC. However, all other FDA Centers/Offices outside the OGC’s Food and Drug Division must obtain written approval from OGC to establish a new attorney position.)
2. To request establishment of a new Attorney, GS-0905, position:
  1. The OHRO conducts a preliminary review of the draft PD to ascertain if the position meets the series definition for an attorney and is properly classified to the GS-0905 series.
  2. Once the OHRO approves the classification of the position, a designated OpDiv/StaffDiv official submits the following information to the HHS OHR, Classification Program Manager at [email protected]:
    1. Signed cover memorandum endorsing the request and requesting OGC’s review and approval;
    2. A justification that describes the need for the position; and
    3. A draft PD signed by the requesting authority.
  3. HHS OHR/Talent Acquisition Division (TAD) reviews and submits the information to OGC for concurrence.
  4. OGC has 30 calendar days to review the request and concur in writing or deny the request with a written explanation.
  5. OGC returns the approved or denied PD to TAD for record keeping purposes and TAD returns the PD to the OpDiv/StaffDiv requestor.
  6. All documentation, including OGC concurrence must be attached to the final PD and maintained with the HRO for future reference as long as the PD remains active.
  7. If an approved position is vacated and the PD and organization remains the same, HHS OHR and OGC do not need to review the position again. The OpDiv/StaffDiv has the authority to backfill the position without additional approval.
3. For more information, see HHS OHR Attorney Guidance – Classification, Qualifications, and Recruitment, TAD-002-2017.
GS-1035, Public Affairs Positions at the GS-14 level and above:
1. Public Affairs positions at the GS-1035-14 level and above may not be established outside of the Office of the Assistant Secretary for Public Affairs (ASPA) without the concurrence of ASPA.
2. Requests are submitted to the HHS OHR Classification Manager, then reviewed and forwarded to ASPA for approval following the same procedures and requirements outlined for Attorney positions above.
GS-1811 Criminal Investigator Positions, all grade levels
1. Criminal Investigator, GS-1811, positions may not be established outside of the Office of the Inspector General (OIG) without the concurrence of the OIG.
2. Requests are submitted to the HHS OHR Classification Manager, then reviewed and forwarded to OIG for approval following the same procedures and requirements outlined for Attorney positions above.
GS-0935 Administrative Law Judge Positions. OPM retains the authority to establish all Administrative Law Judge positions, see https://www.opm.gov/services-for-agencies/administrative-law-judges/ .

511-1-100 Classification Appeals

In all cases, OHR serves as the adjudicating organization for all HHS classification appeals. Consistent with the Introduction to Position Classification Standards and 5 C.F.R. § 532.703(b)(7), agency classification appeal decisions are made one administrative level above the classification authority which classified the position(s).
An employee who is dissatisfied with the classification of their position should first discuss their concerns/issues with their immediate supervisor. If the supervisor is unable to resolve the issue to the employee's satisfaction, the employee should discuss their dissatisfaction with their servicing OHRO.
Current federal employees have the right to appeal the classification of their position based on grade, occupational series, or title of the position (see 5 C.F.R. § 511.607 for a complete description of non-appealable issues). Employees may also seek to have a GS position changed to the Federal Wage System (FWS) or a FWS position changed to the GS.
Employees covered under the General Schedule (5 C.F.R. Part 511) have the options of:
1. Appealing the occupational series, grade or title of the job to the HHS, Assistant Secretary for Administration (ASA), OHR; or
2. Appealing directly to OPM. (OHR shall be notified immediately upon knowledge of an employee's classification appeal to OPM.)
3. Employees who elect to appeal first to HHS may subsequently appeal to OPM if they are dissatisfied with the Department's appeal decision. However, employees may not appeal to HHS if they have previously appealed the same position to OPM.
4. If an employee had previously filed a similar appeal to HHS on which a decision is pending, then appeals to OPM, the Department appeal is canceled and all parties notified by OHR.
5. If a GS employee is appealing an HHS decision or OPM classification certificate issued under 5 U.S.C. §§ 5103 or 5110, and has suffered a loss in grade or pay, is not entitled to retained grade or pay, and desires retroactive adjustments, the time limits in 5 C.F.R. § 511.703 must be observed. In order for the decision to be made retroactive, the employee must file the initial request for review with either HHS or OPM not later than 15 calendar days after the effective date of the reclassification action. If the appellate’ s decision raises the grade of the position above the original grade, retroactivity applies only to the extent of restoration to the original grade.
Employees covered under the Federal Wage System (5 C.F.R. Part 532) must:
1. First appeal to HHS/OHR. (FWS employees cannot appeal directly to OPM without appealing to their agency first.)
2. If the employee is dissatisfied with the decision of HHS, they may file an appeal with OPM, provided they do so within 15 calendar days of receipt of HHS’ decision.
3. When an appeal involves a change to lower grade level or other job-grading action which resulted in a reduction in grade or loss of pay, in order to be entitled to a retroactive corrective action, and employee must request a review within 15 calendar days of the effective date of the change to lower grade (5 C.F.R. § 532.703(b)(3)).
Employees may select a representative as outlined for GS employees under 5 C.F.R. § 511.608, and for FWS employees under 5 C.F.R. § 532.703(b)(4). Employees may have a representative (designated in writing) to help prepare and submit the appeal case, but the representative cannot be someone with management or classification authority over the position. When an OpDiv/StaffDiv disallows an employee's selected representative, the OHRO must notify the employee in writing and explain the reason(s).
OHR’s letter of decision constitutes a final decision within HHS. A classification appeal decision may be reopened and reconsidered by OHR when the employee presents material facts not previously considered.
An appeal decision by the Department or OPM can result in the appealed position's grade being raised, lowered, or sustained. The position's pay plan, title, series, or grade may be changed or sustained. Employees are advised by the appropriate OHRO of the effect an appeal decision has on the classification of the position and any other employees assigned to the same position.

511-1-110 Classification Appeal Filing Procedures

If an employee is appealing to HHS, appeals must be addressed in writing to the Director, Talent Acquisition Division, in OHR. The following information is submitted by the appellant or his/her representative via their servicing OHRO to [email protected]:
1. A signed statement that the employee wishes to appeal the classification of his/her position;
2. Organization to which assigned;
3. Current position pay plan, title, series, and grade;
4. The requested pay plan, title, series, and/or grade;
5. A statement explaining how the official PD is inaccurate or a statement of how the duties performed differ from the official PD;
6. A statement with the reasons why the position should be classified differently. If the interpretation of a specific standard(s) is at issue, an analysis comparing the position with the pertinent standard(s) should be included; and
7. A written designation of third party representation if the appellant elects such representation. The designation must include the name, phone number, email address, and mailing address of the representative.
The following supplemental information should be submitted by the servicing OHRO to OHR at [email protected] for appeals to HHS:
1. The PD (including the OF-8) to which the incumbent is assigned which meets standards of adequacy and which is consistent with the position evaluation statement;
2. A position evaluation statement which includes an in-depth comparison of the duties and responsibilities with published classification standards;
3. Organizational chart in which the position resides with pay plans, series, and grades;
4. Comments from the immediate supervisor (or higher level official) relative to the accuracy of the PD and the merits of the appeal;
5. Copies of all PDs for positions directly supervised or led by the appealed position, and supporting evaluation statement, if applicable; and
6. A copy of immediate supervisor's PD and evaluation statement, if applicable.
HHS must take action on appeals submitted to HHS within 60 calendar days (5 C.F.R. § 511.604). OHR will forward the appeal to OPM if the employee has directed the appeal to OPM and the HHS decision is not favorable; HHS is not authorized to act on the appeal; or HHS has not made a determination on the appeal within the 60 calendar day time period.
Appeals to OPM:
1. The employee or his/her designated representative, who must be designated in writing, should send the appeal to: U.S. Office of Personnel Management, Classification Appeals and FLSA Claims Program Manager,1900 E. ST NW Room 6484, Washington, DC 20415.
2. OPM requires the following information in writing and must be signed by the employee or his/her designated representative:
  1. Employee name, mailing address, and commercial office telephone number;
  2. The present classification of the employee’s position and the requested classification;
  3. The name of the department or agency and the office in which the employee works;
  4. The city where the employee is employed and the mailing address;
  5. A copy of the employee’s official PD and either a statement affirming that it is accurate or a detailed explanation of the inaccuracies and an explanation of the efforts made to correct the PD;
  6. Any additional information about the position that will aid in understanding it; and
  7. Arguments supporting the requested classification by referencing the appropriate classification standards.
3. A duplicate copy of all material provided to OPM shall be forwarded through appropriate channels to OHR. Upon receipt of the OPM decision, a copy shall also be forwarded to OHR in order to complete the case file. OHROs maintain complete files on classification appeal adjudications under their jurisdiction.
Pending classification appeals are canceled by HHS if the appellant:
1. Requests in writing that his/her appeal be withdrawn or canceled;
2. No longer occupies the appealed position (except when the employee would be entitled to the retroactive benefits);
3. Does not furnish information required by the agency or otherwise does not proceed with the advancement of the appeal; or
4. An employee filed an appeal to HHS on which a decision is pending, and then appeals to OPM.
Reconsideration Requests
1. Appellants desiring to formally request reconsideration of a HHS or an OPM classification appeal decision should submit the request to OHR at [email protected] within 45 days from the date of the decision.
2. Both HHS and OPM may reconsider appeals at its discretion if the request contains new material information or disagreements over the significance of information or when a written argument or evidence is presented that establishes reasonable doubt concerning the technical accuracy of the decision (5 C.F.R. § 511.613 for General Schedule and 5 C.F.R. § 532.705 (b)(f) for Federal Wage appeal reconsiderations). Reconsiderations may be used under circumstances where a written argument or evidence establishes that:
  1. New and material evidence is available that was not readily available when the previous decision was issued;
  2. The previous decision involves an erroneous interpretation of law or regulation or a misapplication of established policy; or
  3. The previous decision is of a precedential nature involving a new or unreviewed policy consideration that may have effects beyond the actual case at hand, or is otherwise of such an exceptional nature as to merit the personal attention of the Director of OPM.
3. If the appellant is filing for reconsideration with HHS or OPM, the request must be in writing and filed not later than 45 calendar days after the decision is issued. Regardless if an employee is filing for reconsideration with HHS/OHR or OPM, a copy of all packages for reconsideration must be submitted to OHR.
Appeal Decisions
1. The appeal decision is provided in writing to the employee. A final decision by HHS or OPM constitutes a certificate which is mandatory and binding on all administrative, certifying, payroll, disbursing, and accounting officials of the Government.
2. Classification appeal decisions are implemented according to the provision(s) of 5 C.F.R. § 511.702 and 5 C.F.R. § 532.705 (a)(d).

511-1-120 Fair Labor Standards Act Determinations

The Fair Labor Standards Act (FLSA) sets minimum standards for wage and overtime entitlements and administrative procedures for which covered worktime must be compensated. All employees are covered by the Act, except for those listed under 5 C.F.R. 551.103.
All positions within the federal government must be designated as either “exempt” or “nonexempt” under the FLSA criteria identified in 5 C.F.R. 551. The exempt or nonexempt status of the position are identified as part of the employee's PD and annotated in block 7 of the OF-8.
Employees are presumed to be FLSA “nonexempt” unless a determination is made the employee clearly meets one or more of the exemption criteria as specified in 5 C.F.R. Part 551, Subpart B, and supplemental guidance issued by OPM. If the employee clearly meets the criteria for exemption, the FLSA “exempt” designation must be documented.
An exempt or nonexempt determination shall be made at the time of classification for each employee assigned to a position based on a comparison of the employee's actual duties performed with the exemption criteria outlined in OPM and Department of Labor guidelines. While official PDs 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.
The exempt or nonexempt status of a position should be reviewed when it is established, redescribed, and classified based on significant changes in assigned duties, or in connection with a classification review.
If the exempt or nonexempt determination of an employee is inconsistent with the duties and responsibilities assigned in the official PD, it is necessary to either revise the PD, or ensure that the employee performs the duties and responsibilities as assigned in the PD.
For unencumbered positions, an initial determination must be made based on a comparison of the projected duties and responsibilities as assigned in the official PD with the exemption criteria.
When making an FLSA determination, the OHRO must not presume a nonexempt or exempt status based on grade. Not all positions graded at GS-9 and below are nonexempt. While this can be used as a guide, HR specialists must analyze the duties and responsibilities for each determination.
In general, executive, administrative and professional employees, as well as employees performing a combination of exempt duties, are exempt from FLSA regulations. However, this must be narrowly applied only to employees who are clearly within the terms and spirit of the exemption criteria.
The supervisor is responsible for reviewing an employee’s duties and responsibilities and filling out the “FLSA Status Determination Questionnaire for Managers and Supervisors” (Exhibit B) and submitting it with the PD to the OHRO.
The OHRO must fill out the HHS FLSA Classifier Checklist (Exhibit C) and attach it to the official position description. The burden of proof as to the exempt or nonexempt status of an employee rests with the Department, not the employee. If the determination is not self-evident, the basis for the decision should be retained with the PD either as part of the evaluation report or as a separate document.

511-1-130 FLSA Claims

Note: OpDivs/StaffDivs should review their local or national collective bargaining agreement for specifically negotiated items or processes.

Employees who are dissatisfied with the FLSA coverage determination of their positions have the right to appeal the decision. It is recommended by OPM the employee first talk to their supervisor and/or OHRO to discuss their concerns about their FLSA determination.
Bargaining unit covered employees are required to use the negotiated grievance process and may not file an administrative FLSA claim with either HHS or OPM unless expressly excluded from the bargaining agreement.
Non-bargaining unit covered employees may file an FLSA claim either with HHS or with OPM; however, the same claim may not be pursued with both HHS and OPM at the same time. Employees who elect to submit a claim first to HHS may subsequently submit a claim to OPM if they are dissatisfied with the Department's decision. However, employees may not file with HHS if they have previously submitted the same claim to OPM. You may not file a claim with HHS after receiving an unfavorable decision from OPM. An OPM decision on a claim is final and is not subject to further administrative review.
All employees have the right to bring an action in an appropriate United States court. Filing a claim with HHS or with OPM does not stop the statute of limitations from running. OPM will not decide a claim that is in litigation.
In accordance with 5 C.F.R. § 551.702, all FLSA pay claims filed after June 30, 1994, are subject to a two-year statute of limitations (three years for willful violations). An employee must submit a written claim to either the employing agency or to OPM in order to preserve the claim period. The date the agency or OPM receives the claim is the date that determines the period of possible back pay entitlement.
Under 5 C.F.R. § 551.104, “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.
A FLSA claim to HHS or to OPM must be in writing and submitted through the OHRO to HHS/OHR. The OHRO will forward the complete appeal package within 15 days of receipt. Failure to submit an appeal through the appropriate channels may result in a delay in the decision.
1. The following information shall be submitted by the employees:
  1. A signed statement that the employee wishes to appeal the FLSA determination of his/her position;
  2. Name of local facility;
  3. Organization to which assigned;
  4. Current position title, series, and grade;
  5. The requested FLSA determination;
  6. 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;
  7. Evidence available 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;
  8. A written designation of third party representation, if applicable. The designation must include the name, address and phone number of the representative.
  9. Evidence, if available, that the claim period was preserved in accordance with the time limits in 5 C.F.R. § 551.702. The date HHS or OPM received the claim, whichever is earlier, becomes the date the claim period is preserved;
  10. A statement as to whether the employee was or was not a member of a collective bargaining unit at any time during the claim period;
  11. If the employee was a member of a bargaining unit, a statement that he/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; and
  12. A statement that the employee has not filed an action in an appropriate United States court.
2. The following information shall be submitted by the OHRO along with the material supplied by the appellant:
  1. A current, accurate PD (agreed to by all levels of management) which meets standards of adequacy and which is consistent with the position evaluation report, FLSA evaluation report, and the supervisor's comments.
  2. A position evaluation report which includes an in-depth comparison of the duties and responsibilities with published FLSA criteria. If the report was prepared prior to the appeal, it should be updated to cover salient points raised by the appellant that may not have been previously evaluated.
  3. Organizational and functional charts.
  4. Comments from the immediate supervisor and/or higher level official relative to the accuracy of the PD and the merits of the FLSA appeal. Discrepancies or disagreements should be resolved before submitting the appeal for decision.
  5. Copies of official time and leave/pay records for the time period claimed.
3. OPM claims are forwarded to: Classification and Pay Claims Program Manager, Center for Merit System Accountability, Office of Personnel Management, 1900 E Street, NW, Room 6484, Washington, DC 20415.
4. HHS claims are forwarded to the HHS Director of the Talent Acquisition Division, in OHR, at [email protected].

511-1-140 Documentation and Accountability

Records associated with actions taken under this Instruction, including all documentation sufficient for third party reconstruction purposes, must be retained according to the record disposition schedule. All records created in a given year must be retained for a total of three full years. Records involved in litigation and grievance processes may be destroyed only after official notification is received from OPM, Department of Justice, courts, etc. or if the time limits associated with grievance processes have passed (e.g., before the anniversary date).
OHR will conduct periodic accountability reviews to analyze compliance with this Instruction, HHS and OPM policy and guidance and all applicable federal laws and regulations.

Exhibit A: Example Position Description/Evaluation Statement Format

Example Position Description Format* (Factor Evaluation System)

[Position Title]
GS-[Occupational Series]-[Grade]

I. Introduction

[Describe the primary purpose of the position and its location within the organization. Include a very brief overview of the Duties and Responsibilities sections. If this position is a career ladder then the paragraph must identify its relative position (i.e. entry level, full performance, etc.).]

Example: This position is located in [Office of the Secretary, an Operating Division, or Staff Division, of the Department of Health and Human Services]. The purpose of the position is to carry out a wide variety of assignments associated with administrative efficiency and operations of the office. The incumbent must have a current knowledge of administration and Department policy with respect to the various agency programs and activities. The work of the position focuses on responsibilities performed in support of the office or senior agency official and may involve a variety of sensitive and confidential matters. Responsibilities related to administrative matters include frequent contact with subordinate agencies throughout the Department. The incumbent serves as a principal member of the office’s support staff.

II. Major Duties and Responsibilities

[In descending order of importance, describe the principal duties and responsibilities which characterize the position in plain, clear language and as specifically as possible. Avoid general terms, vague expressions, repetition, and conclusions. Describe only the major duties, responsibilities and other important aspects of the position that may affect the final classification determination. Generally, major duties are those that occupy a significant portion of the employee's time and they should be only those duties currently assigned, observable, identified with the position's purpose and mission of the organization, and expected to continue on a regular and recurring basis.]

Performs other duties as assigned. [This exact statement must be included in all PDs.]

III. Factor 1 - Knowledge Required by the Position

[Describe:

Kind or nature of knowledge and skills needed.
How the knowledge and skills are used in doing the work.]

IV. Factor 2 - Supervisory Controls

[Describe:

How the work is assigned.
Employee's responsibility for carrying out the work.
How the work is reviewed. ]

V. Factor 3 – Guidelines

[Describe:

Guidelines used for performing the work.
Judgment needed to apply the guidelines or develop new guides. ]

VI. Factor 4 – Complexity

[Describe:

Nature of the assignment.
Difficulty in identifying what needs to be done.
Difficulty and originality involved in performing the work. ]

VII. Factor 5 - Scope and Effect

[Describe:

Purpose of the work.
Impact of the work product or service (how far-reaching is its effects). ]

VIII. Factors 6/7 - Personal Contacts/Purpose of Contacts

[Describe:

People and conditions/setting under which contacts are made.
Reasons for contacts in Factor 6.]

IX. Factor 8 - Physical Demands

[Describe:

Nature, frequency, and intensity of physical activity.]

X. Factor 9 - Work Environment

[Describe:

Risks and discomforts caused by physical surroundings and the safety precautions necessary to avoid accidents or discomfort.]

*The FES format must be used when the classification of the position is based on a FES standard.

Sample Evaluation Statement for FES Format

I. Introduction

[Briefly describe why the position is being established, re-evaluated, etc.]

II. References

[Include all references used to classify the position, for example:

Introduction to the Position Classification Standards, Revised: August 2009
The Classifier’s Handbook, August 1991
Administrative Work in the Human Resources Management Group, GS-0200 December 2000]

III. Pay Plan, Series, and Title Determination

[Describe how the pay plan, series, and title were determined, utilizing references from paragraph II above.]

IV. Grade Determination

[Refer to the standard used to evaluate the position and describe how the position FULLY meets the factor levels described in the Standard (i.e., if the factor level(s) require additional explanation, provide the rationale for assigning the factor level(s) that was credited.]

V. Conclusion

[State the classification determination, based on the above evaluation.]

Example Position Description (Narrative Format)

[Position Title]
GS-[Occupational Series]-[Grade]

I. Introduction

Example: This position is located in [Office of the Secretary, an Operating Division, or Staff Division] of the Department of Health and Human Services. The purpose of the position is to carry out a wide variety of assignments associated with administrative efficiency and operations of the office. The incumbent must have a current knowledge of administration and Department policy with respect to the various agency programs and activities. The work of the position focuses on responsibilities performed in support of the office or senior agency official and may involve a variety of sensitive and confidential matters. Responsibilities related to administrative matters include frequent contact with subordinate agencies throughout the Department. The incumbent serves as a principal member of the office’s support staff.

II. Nature of Assignment

[In descending order of importance, describe the principal duties and responsibilities which characterize the position, describing them in plain, clear language and as specifically as possible. Avoid general terms, vague expressions, repetition, and conclusions. Describe only the major duties and other important aspects of the position that may affect the final classification determination. Generally, major duties are those that occupy a significant portion of the employee's time and they should be only those duties currently assigned, observable, identified with the position's purpose and mission of the organization, and expected to continue on a regular and recurring basis.]

Performs other duties as assigned. [This exact statement must be included on all PDs.]

III. Level of Responsibility

[Describe:

Kind or nature of knowledge and skills needed.
How the knowledge and skills are used in doing the work.
Level of responsibility given in decision-making.
Guidelines used to perform the work.
How work is assigned.]

Example Evaluation Statement (Narrative Format)

I. Introduction

[Briefly describe why the position is being established, re-evaluated, etc.]

II. References

[Include all references used to classify the position, for example:

Introduction to the Position Classification Standards, Revised: August 2009
The Classifier’s Handbook, August 1991
Administrative Work in the Human Resources Management Group, GS-0200 December 2000

III. Pay Plan, Series, and Title Determination

[Describe how the pay plan, series, and title were determined, utilizing references from paragraph II above.]

IV. Grade Determination

V. Conclusion

[State the classification determination, based on the above evaluation.]

Exhibit B: FLSA Status Determination Questionnaire for Managers and Supervisors

Fair Labor Standards Act Status Determination Questionnaire for Managers and Supervisors

Employee: [Joe Donuts]

Position Title: [ ] Pay Plan: [ ] Series [0123] Grade [09] PD # [12345]

Office: [Office of Self Employment]

Employment Status: [Full-Time] Work Schedule: [8 hour]

Supervisor: [ ] Contact Number: [123-456-7890]

Purpose: This questionnaire is for managers and supervisors to assist Classifiers in determining whether or not the named employee should be coded as exempt or non-exempt from the Fair Labor Standards Act (FLSA). The provisions of the FLSA apply to employees coded as non-exempt. The FLSA status of the employee is often the key to deciding whether certain duties are compensable as "hours of work" and as to the rate of pay the employee should be compensated. Overtime entitlements also depend on this status, as may compensation for travel time. It is assumed that all federal employees are covered by the FLSA (Non-Exempt) unless they clearly fall under one of the following exemptions. Job titles and official PDs do not determine an employee’s status, rather it is the duties that the employee actually performs on a regular and recurring basis that serve as the determining factor. Please provide detailed explanation in the spaces provided for all “Yes” answers.

Yes [ ] No [ ]

Is the employee a supervisor or manager? (regularly directs two or more employees, and has the authority to hire or fire (or the employee's recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees, are given particular weight))?

If yes, list examples of duties to support this:
Yes [ ] No [ ]

Does the employee exercise discretion and independent judgment with respect to matters of significance while performing office or non-manual work directly related to the agency's management or general business operations? (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. 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 are nonexempt. The term “matters of significance” refers to the level of importance or consequence of the work performed. Some examples: Employee has authority to commit the employer in matters that have significant financial impact; has authority to waive or deviate from established policies and procedures without prior approval; has authority to negotiate and bind the organization on significant matters.)

If yes, list examples of duties to support this:
Yes [ ] No [ ]

Does the employee's primary duties require advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized instruction? The work must include the following three elements:
1. The employee must perform work requiring advanced knowledge (predominantly intellectual in character and including work requiring the consistent exercise of discretion and judgment). Advanced knowledge cannot be attained at the high school level;
2. The advanced knowledge must be in a field of science or learning which 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;
3. The advanced knowledge must be customarily acquired by a prolonged course of specialized instruction in a field where specialized academic training is a standard prerequisite for entrance into the profession – to address this element, please identify specifically the type and level of specialized instruction required for the position.
If yes, list examples of duties to support this:
Yes [ ] No [ ]

Is the employee's primary duty in the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor? 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. 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.

If yes, list examples of duties to support this:
Yes [ ] No [ ]

Is the employee a skilled worker in the computer field? The exemption for employees in computer occupations does not include employees engaged in the manufacture or repair of computer hardware and related equipment. Rather, the exemption applies 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;
4. A combination of the above, requiring the same level of skills.
If yes, list examples of duties to support this:

Supervisor’s Signature ______________________ Date:

Exhibit C: HHS Fair Labor Standards Act Classifier Checklist

HHS FLSA Classifier Checklist

Complete this form for each grade in a career ladder. Note: it is possible for different grades within a career ladder to have different FLSA designations (for example, non-exempt at lower grades; or the work is procedural in nature; and exempt at higher grades in the career ladder requiring more analytical skills to complete the tasks). A completed and signed checklist must be attached to each classified position description and statement of difference (if applicable).

Instructions: Complete the fields below and check the criteria applicable to the position:

A. REQUIRED POSITION INFORMATION

Position Title:                                     Pay Plan: Series: 0123 Grade: 01

Position Number:              Office/Organization:

Administrative Code:       Job Code:

B. NON-EXEMPT CRITERIA

Salary-based non-exemption (5 C.F.R. 551.203)

[ ] Employee annual rate of basic pay is less than $23,660.
Non-exemption of certain employees (5 C.F.R. 551.204)

[   ] Position is non-supervisory and engaged in equipment operation, or is a protective or clerical occupation.

[   ] Position involves technician work properly classified at the GS-09 level or below.

[   ] Position is nonsupervisory in the Federal Wage System or other comparable wage system.

C. EXEMPTION CRITERIA

Executive Exemption Criteria (5 C.F.R. 551.205)

[ ] Primary duty of the position is management or supervision; work involves customarily and regularly directing the work of subordinates and has the authority to hire, remove, or evaluate performance as well as make recommendations on employment issues that are given particular weight by higher-level supervisors or managers.
Administrative Exemption Criteria (5 C.F.R. 551.206)

[ ] Primary duty is performance of office or non-manual work directly related to the management or general business functions. The work involves the exercise of discretion and independent judgment with respect to matters of significance.
Professional Exemption Criteria (5 C.F.R. 551.207)

[   ] Learned Professionals (5 C.F.R. 551.208): Primary duty is performance of work requiring advanced knowledge in a field of science or learning including the traditional professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, pharmacy, various types of physical, chemical and biological sciences, and other similar occupations that have a recognized professional status; entrance into these professions requires a prolonged course of specialized intellectual instruction.

[   ] Creative Professionals (5 C.F.R. 551.209): Primary duty is performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor such as music, acting, writing, and the graphic arts. Exemption depends upon the extent of invention, imagination, originality or talent of the employee; exemption does not apply to work that can be produced by a person with general manual or intellectual ability and training.

[   ] Computer Employees (5 C.F.R. 551.210): Primary duty consists of the application of systems analysis techniques and procedures, including consulting with users to determine hardware, software or system functions specifications; OR design development, documentation, analysis, creation, testing or modification of computer systems or programs; OR a combination of these duties. Exemption does not apply to employees engaged in the manufacture or repair of computer hardware and related equipment or to those whose work is highly reliant on computers but whose duties do not consist of the aforementioned. Salary based exemption applies to any computer professional compensated on an hourly bases at a rate of basic pay of $27.63 an hour and above.
Temporary Duties (5 C.F.R. 551.211):

[ ] Performing different work or duties for a temporary period of time may affect an employee's exemption status. Consult 5 C.F.R. 551.211 for more details and explain in remarks below.
Foreign Exemption Criteria (5 C.F.R. 551.212)

[ ] Employees permanently stationed in an exempt area and spend all hours of work in a given work week in one or more exempt areas or employees not permanently stationed in an exempt area, but spend all hours of work in a given work week in one or more exempt areas. Exempt area means any foreign country, or any territory under the jurisdiction of the United States other than a State; the District of Columbia; Puerto Rico; the U.S. Virgin Islands; American Samoa; Guam; Commonwealth of the Northern Mariana Islands; Midway Atoll; Wake Island; Johnston Island; and Palmyra (5 C.F.R.104).
Criminal Investigators Receiving Availability Pay (5 C.F.R. 551.213(a))

[ ] Special exemption/exclusion applies to criminal investigators receiving availability pay.
Law Enforcement Activities (5 C.F.R. 551.216)

[ ] Certain duties performed by law enforcement officers affect FLSA status. Consult 5 CFR 551.216 for more details and explain in remarks below.

Final Determination (check one): [ ] Non-Exempt [ ] Exempt

HR Specialist: Date:

Signature __________________________________________

Remarks:

Instruction 511-1: Position Classification

Issuance Date:

Material Transmitted:

Material Superseded:

Background:

511-1-00: Purpose

511-1-10: References

511-1-20 Coverage and Exclusions

511-1-30 Definitions

511-1-40 Responsibilities

511-1-50 Position Management

511-1-60 Position Descriptions

511-1-70 Position Classification Reviews

511-1-80 Implementing OPM Classification Standards

511-1-90 Classification of Special Series

511-1-100 Classification Appeals

511-1-110 Classification Appeal Filing Procedures

511-1-120 Fair Labor Standards Act Determinations

511-1-130 FLSA Claims

511-1-140 Documentation and Accountability

Exhibit A: Example Position Description/Evaluation Statement Format

Exhibit B: FLSA Status Determination Questionnaire for Managers and Supervisors

Exhibit C: HHS Fair Labor Standards Act Classifier Checklist

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