I Five principles
5 CFR 551.202 governs every exemption determination, and it is written to favour coverage.
| The agency must observe |
|---|
| Each employee is presumed non-exempt |
| Exemption criteria are narrowly construed — only those clearly within the terms and spirit |
| The burden of proof rests with the agency asserting the exemption |
| Reasonable doubt means the employee is designated non-exempt |
| Designation rests on the duties actually performed |
Established PDs and titles may assist an initial determination, but the designation must ultimately rest on what you actually do. That cuts both ways: a grade or title does not make you exempt, and it does not shelter you if your real duties clearly meet an exemption.
If your PD and your actual work have drifted apart, that is a live issue for classification as well — the same gap can affect both your grade and your overtime entitlement.
II The three exemptions
| Category | Regulation |
|---|---|
| Executive | 5 CFR 551.205 |
| Administrative | 5 CFR 551.206 |
| Professional | 5 CFR 551.207 |
The executive exemption broadly covers a supervisor or manager who manages an agency or a recognised organisational subdivision — including the lowest recognised unit with a continuing function — and customarily and regularly directs the work of subordinates.
The categories are not mutually exclusive. An employee performing a combination of exempt duties drawn from more than one may still qualify, which is how borderline positions are frequently resolved against the employee.
III Work nobody asked for
The regulation defines suffered or permitted work as any work performed for the benefit of an agency, whether requested or not, provided the supervisor knows or has reason to believe it is being performed.
The common assumption is that overtime only counts if someone directed it. It does not say that. If your supervisor knew — or in the circumstances should have known — that you were working the hours, they are capable of counting.
That covers the emails sent at eleven at night, the work taken home before a deadline, and the hours a supervisor can see in a system but never formally approved.
It does not make every extra hour claimable, and it does not override the exemption question — an exempt employee has no FLSA overtime entitlement regardless. But for a non-exempt employee it substantially widens what counts.
IV Claim Window Estimator
What Is Still Recoverable?
Rough scale only. Whether you are non-exempt, and whether the hours count, are the real questions.
V The clock does not stop
Two years for claims filed on or after 30 June 1994, extending to three where the agency committed a willful violation — meaning it knew its conduct was prohibited, or showed reckless disregard for the Act’s requirements.
The detail that costs money
The date your claim is received determines the period of possible back pay. So every week you spend gathering more evidence moves the window forward and drops a week off the far end.
Waiting to build a stronger case has a measurable price, and it is the number in the third card above.
VI Where to file
In writing, to either your agency or OPM — but not both at once, and the order matters.
| Sequence | Permitted? |
|---|---|
| Agency first, then OPM if dissatisfied | Yes |
| OPM first, then your agency | No |
| Both simultaneously | No |
An OPM decision is final. Separately, all employees retain the right to bring an action in an appropriate United States court — and OPM will not decide a claim that is in litigation, so those two routes are alternatives rather than a sequence.
Two separate things: the duties you actually perform, against the criteria in 5 CFR 551.205 to 551.208, and the hours. Contemporaneous records carry far more weight than a description written afterwards.
But because the filing date sets the recoverable window and the clock keeps running, gathering evidence indefinitely has a direct cost. At some point filing beats preparing.
- Find your FLSA designation — it is recorded on your SF-50.
- Read 5 CFR 551.205 to 551.208 against what you actually do.
- Remember the agency, not you, has to prove the exemption.
- Keep contemporaneous records of hours, not reconstructions.
- Note that unrequested work can count if your supervisor knew.
- Work out what is still inside the two-year window.
- Understand that filing does not pause the clock.
- Decide agency or OPM — you cannot go OPM first and then agency.
Questions
Your agency. Under 5 CFR 551.202 each employee is presumed to be FLSA non-exempt unless the employing agency correctly determines that the employee clearly meets the requirements of an exemption. Exemption criteria must be narrowly construed to apply only to employees clearly within the terms and spirit of the exemption, the burden of proof rests with the agency asserting it, and where there is reasonable doubt the employee will be designated non-exempt. The default is coverage, not exclusion.
No. Established position descriptions and titles may assist in making an initial determination, but the designation of an employee as exempt or non-exempt must ultimately rest on the duties actually performed by the employee. That cuts both ways: a grade or a title does not make you exempt, and equally it does not protect you if your actual duties clearly meet an exemption. What you do, not what the paperwork says, is what governs.
Three primary ones apply to federal employees: executive, administrative and professional, set out in 5 CFR 551.205, 551.206 and 551.207 respectively. The executive exemption broadly covers a supervisor or manager who manages an agency or a recognised organisational subdivision and customarily and regularly directs the work of subordinates. The categories are not mutually exclusive, and an employee performing a combination of exempt duties across them may also qualify.
It can. Suffered or permitted work is defined as any work performed by an employee for the benefit of an agency, whether requested or not, provided the employee's supervisor knows or has reason to believe the work is being performed. So an order is not required. If your supervisor knew, or in the circumstances should have known, that you were working the hours, they are capable of counting even though nobody directed you to work them.
Two years for claims filed on or after 30 June 1994, extending to three years where the agency committed a willful violation. A willful violation means circumstances where the agency knew its conduct was prohibited by the Act or showed reckless disregard for its requirements, judged on all the facts and circumstances. The difference between two and three years is a full extra year of recoverable pay, which is why whether a violation was willful is usually contested.
No, and this is the detail that costs people money. Filing a claim does not stop the statute of limitations from running. The date your claim is received is what determines the period of possible back pay entitlement, so every week of delay moves the recoverable window forward and drops a week off the far end. If you believe you have a claim, the date of filing is itself part of what the claim is worth.
In writing, to either your agency or OPM, but not both simultaneously. You may file with your agency first and go to OPM afterwards if dissatisfied, but you may not go to your agency after having submitted the same claim to OPM. An OPM decision on a claim is final. All employees also retain the right to bring an action in an appropriate United States court, and OPM will not decide a claim that is in litigation.
Document the duties you actually perform against the exemption criteria in 5 CFR 551.205 to 551.208, and separately document the hours. Because the designation rests on actual duties, contemporaneous evidence of what you do carries more weight than a characterisation written afterwards. Given that the filing date sets the recoverable window and the clock does not stop, gathering evidence indefinitely before filing has a direct cost.