§ 551.211 Effect of performing different work or duties for a temporary period of time on FLSA exemption status

5 CFR 551.211(a)(a) Applicability. Performing different work or duties for a temporary period of time may affect an employee's exemption status.

5 CFR 551.211(a)(1)(1) When applicable. This section applies only when an employee must perform work or duties that are not consistent with the employee's primary duties for an extended period, that is, for more than 30 consecutive calendar days—the “30-day test.” The period of performing different work or duties may or may not involve a different geographic duty location. The exemption status of an employee temporarily performing different work or duties must be determined as described in this section.

5 CFR 551.211(a)(2)(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 at the same level with the same basic duties and exemption status as the employee's position.

5 CFR 551.211(b)(b) An agency generally may not change an employee's exemption status based on a snapshot of the employee's duties during a particular week, unless the week involves emergency work under paragraph (f) of this section. An agency must:

5 CFR 551.211(b)(1)(1) Assess an employee's temporary work or duties over a reasonable period of time (the 30-day test), compare them with the primary duties upon which the employee's exemption status is based, and determine the employee's exemption status as described in §§ 551.203 through 551.210; and

5 CFR 551.211(b)(2)(2) Ensure that it does not avoid reassessing, and perhaps changing, an employee's exemption status by breaking up periods of temporary work or duties with periods of having the employee perform his or her regular work or duties. For example, an agency may not assign exempt employees to perform nonexempt work or duties for 29 consecutive calendar days, return them to their exempt duties for two or three days, then assign them again to perform nonexempt work for another 29 days.

5 CFR 551.211(c)(c) Aggregation of more than 30 nonconsecutive calendar days over an extended period does not meet the 30-day test and may not be used to change an employee's exemption status. For example, if an exempt employee performs nonexempt duties 4 days in one week, 2 days in the following week, and so on over a period of weeks or months, the days of nonexempt work may not be aggregated for the purpose of changing the employee's exemption status.

5 CFR 551.211(d)(d) Effect on nonexempt employees.

5 CFR 551.211(d)(1)(1) A nonexempt employee who must temporarily perform work or duties that are different from the employee's primary duties remains nonexempt for the entire period of temporary work or duties unless both of the following conditions are met:

5 CFR 551.211(d)(1)(i)(i) The period of temporary work or duties exceeds 30 consecutive calendar days; and

5 CFR 551.211(d)(1)(ii)(ii) The employee's primary duties for the period of temporary work are exempt as defined in this part.

5 CFR 551.211(d)(2)(2) If a nonexempt employee becomes exempt under the criteria in paragraph (d)(1) of this section:

5 CFR 551.211(d)(2)(i)(i) The employee must be considered exempt for the entire period of temporary work or duties; and

5 CFR 551.211(d)(2)(ii)(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 no longer entitled to the FLSA overtime pay received but may be owed title 5 overtime pay, or its equivalent.

5 CFR 551.211(e)(e) Effect on exempt employees.

5 CFR 551.211(e)(1)(1) An exempt employee who must temporarily perform work or duties that are different from the employee's primary duties remains exempt for the entire period of temporary work or duties unless both of the following conditions are met:

5 CFR 551.211(e)(1)(i)(i) The period of temporary work or duties exceeds 30 consecutive calendar days; and

5 CFR 551.211(e)(1)(ii)(ii) The employee's primary duties for the period of temporary work are not exempt as defined in this part.

5 CFR 551.211(e)(2)(2) If an exempt employee becomes nonexempt under the criteria in paragraph (e)(1) of this section:

5 CFR 551.211(e)(2)(i)(i) The employee must be considered nonexempt for the entire period of temporary work or duties; and

5 CFR 551.211(e)(2)(ii)(ii) If the employee received title 5 overtime pay, or its equivalent, for work performed during the first 30 consecutive 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 no longer be entitled to some or all of the title 5, or equivalent, overtime pay received but may be owed FLSA overtime pay.

5 CFR 551.211(f)(f) Emergency situation. Notwithstanding any other provision of this section, and regardless of an employee's grade or equivalent 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:

5 CFR 551.211(f)(1)(1) Nonexempt employee. A nonexempt employee remains nonexempt whether the employee performs nonexempt work or exempt work during the emergency; and

5 CFR 551.211(f)(2)(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 (f)(2)(i) and (f)(2)(ii) of this section.

5 CFR 551.211(f)(2)(i)(i) Remain exempt. An exempt employee remains exempt for any workweek in which the employee's primary duties for the period of emergency work are exempt as defined in this part.

5 CFR 551.211(f)(2)(ii)(ii) Become nonexempt. An exempt employee becomes nonexempt for any workweek in which the employee's primary duties for the period of emergency work are nonexempt as defined in this part.