B-211629, MAY 27, 1983, OFFICE OF GENERAL COUNSEL
Highlights
INGRASSIA ASSISTANT DIRECTOR FOR AGENCY COMPLIANCE AND EVALUATION OFFICE OF PERSONNEL MANAGEMENT: HERE ARE OUR COMMENTS ON THE OFFICE OF PERSONNEL MANAGEMENT'S (OPM) PROPOSED AMENDMENT TO ITS REGULATIONS PERTAINING TO THE APPLICATION OF THE EXEMPTION CRITERIA OF THE FAIR LABOR STANDARDS ACT (FLSA) TO FEDERAL EMPLOYEES. AS WE HAVE PREVIOUSLY HELD. THIS OFFICE WILL NOT REVIEW FLSA EXEMPTION DETERMINATIONS MADE BY OPM. WE HAVE. IN THE LATTER DECISIONS WE HAVE STATED THAT. THE NEW EXEMPTION DETERMINATIONS ARE PROSPECTIVE ONLY. SUBSEQUENT CHANGES TO THOSE INSTRUCTIONS MAY NOT HAVE A RETROACTIVE EFFECT. 61 COMP.GEN. 152. SEE ALSO 56 COMP.GEN. 1015 (1977) AND THE DECISIONS CITED THEREIN IN WHICH WE STATE OUR LONG-STANDING RULES THAT WHEN REGULATIONS ARE PROPERLY ISSUED.
B-211629, MAY 27, 1983, OFFICE OF GENERAL COUNSEL
PRECIS-UNAVAILABLE
MR. ANTHONY F. INGRASSIA ASSISTANT DIRECTOR FOR AGENCY COMPLIANCE AND EVALUATION OFFICE OF PERSONNEL MANAGEMENT:
HERE ARE OUR COMMENTS ON THE OFFICE OF PERSONNEL MANAGEMENT'S (OPM) PROPOSED AMENDMENT TO ITS REGULATIONS PERTAINING TO THE APPLICATION OF THE EXEMPTION CRITERIA OF THE FAIR LABOR STANDARDS ACT (FLSA) TO FEDERAL EMPLOYEES. THE PROPOSED REGULATIONS DO NOT CONTAIN A PROPOSED EFFECTIVE DATE.
AS WE HAVE PREVIOUSLY HELD, THIS OFFICE WILL NOT REVIEW FLSA EXEMPTION DETERMINATIONS MADE BY OPM. B-51325, OCTOBER 7, 1976. WE HAVE, HOWEVER, RULED ON THE RETROACTIVE EFFECT OF OPM'S EXEMPTION DETERMINATIONS. SEE B-163450.12, SEPTEMBER 20, 1978 (1981); POWER SYSTEMS DISPATCHERS, 61 COMP.GEN. 152 (1981) AND ELECTRONIC MAINTENANCE TECHNICIANS, B-200112, DECEMBER 21, 1981. IN THE LATTER DECISIONS WE HAVE STATED THAT, ALTHOUGH OPM MAY CHANGE ITS EXEMPTION INSTRUCTIONS SO THAT EXEMPTION DETERMINATIONS MADE PREVIOUSLY MAY BE REVERSED, THE NEW EXEMPTION DETERMINATIONS ARE PROSPECTIVE ONLY. IN THE FACE OF PRIOR INSTRUCTIONS TO THE CONTRARY, THEREFORE, SUBSEQUENT CHANGES TO THOSE INSTRUCTIONS MAY NOT HAVE A RETROACTIVE EFFECT. 61 COMP.GEN. 152, ABOVE. SEE ALSO 56 COMP.GEN. 1015 (1977) AND THE DECISIONS CITED THEREIN IN WHICH WE STATE OUR LONG-STANDING RULES THAT WHEN REGULATIONS ARE PROPERLY ISSUED, RIGHTS THEREUNDER BECOME FIXED AND THAT, ALTHOUGH SUCH REGULATIONS MAY BE AMENDED PROSPECTIVELY TO INCREASE OR DECREASE RIGHTS GIVEN THEREBY, THEY MAY NOT BE AMENDED RETROACTIVELY EXCEPT TO CORRECT OBVIOUS ERRORS.
IN THIS CONNECTION WE NOTE THAT THE PURPOSE FOR THE NEWLY PROPOSED "EXECUTIVE" AND "PROFESSIONAL" DEFINITIONS IS EXPLAINED AS BEING "*** TO MAKE THE REGULATIONS CONSISTENT WITH THE EXEMPTION POLICY CONTAINED IN FPM LETTERS 551-7 AND 13." 48 FED.REG. 13374. AS A MATTER OF LAW, HOWEVER, OPM'S REGULATIONS IN THE CODE OF FEDERAL REGULATIONS, NOT THE INSTRUCTIONS IN THE FPM LETTERS, ARE CONTROLLING. THEREFORE, STRICTLY SPEAKING, THE REGULATIONS ARE NOT BEING AMENDED TO CONFORM TO THE FPM LETTERS, IF BY THAT IT IS MEANT THAT THE PRESENT REGULATIONS ARE NOT VALID BECAUSE THE INTERPRETATIONS IN THE RPM LETTERS ARE DIFFERENT. SINCE THESE REGULATIONS ARE NOT BEING AMENDED TO CORRECT OBVIOUS ERRORS, WE WOULD OBJECT TO ANY ATTEMPT TO APPLY THEM RETROACTIVELY.
IN VIEW OF THE ABOVE, WE URGE YOU TO AMEND THE PROPOSED REGULATIONS TO EXPRESSLY STATE THAT THEY ARE PROSPECTIVE ONLY.