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Chapter 1, Section 6: Overtime Pay

Overtime pay entitlements for federal employees generally arise under either the Fair Labor Standards Act or Title 5 of the U.S. Code. Most non-supervisory General Schedule and wage system employees, as well as postal employees, law enforcement personnel, and certain employees covered by other federal pay systems, are eligible, whether they are full-time, part-time, or intermittent employees.

General Overtime Pay Rights

Overtime pay entitlements for federal employees generally arise under either the Fair Labor Standards Act or Title 5 of the U.S. Code. Most non-supervisory General Schedule and wage system employees, as well as postal employees, law enforcement personnel, and certain employees covered by other federal pay systems, are eligible, whether they are full-time, part-time, or intermittent employees.

In most cases, overtime is paid at a time-and-a-half rate for work performed in excess of daily (eight-hour) or weekly (40-hour) limits, as long as the work is officially ordered and approved by the worker's supervisor or other management official. Exceptions exist for workers in certain categories--for example, employees for whom the first 40 hours is the basic workweek, employees on an alternative work schedule, and employees receiving annual premium pay (see Administratively Uncontrollable Overtime and see Availability Pay in Section 7 of this chapter).

Note: Special overtime rules apply to firefighters (see Firefighters in Section 1 of this chapter) and non-career employees under Schedule C appointments (see Compensation Policy Memorandum 2009-13 at www.chcoc.gov/transmittals).

In contrast to overtime pay, premium pay is the general term used to describe the additional pay provided to federal employees who work extra hours or whose work involves unusual situations or requirements such as hazardous duties or night work. See Section 7 of this chapter.

Overtime Pay: Exempt and Nonexempt Status

The Fair Labor Standards Act divides positions into "exempt" and "nonexempt" status. Nonexempt employees are those covered by the act and thus eligible for overtime pay. Exempt employees are not covered by the act's provisions and thus are not eligible.

The designation of an employee as FLSA exempt or nonexempt rests on the duties actually performed by the employee, not merely occupational or organizational title. One exception to the job duties test is that any employee, including a supervisory employee, whose annual rate of basic pay is less than $23,660 is eligible for overtime except under certain conditions.

Under the FLSA, employees in executive, administrative, and professional positions, as well as employees in foreign areas, are considered exempt. Rules governing exempt and nonexempt status for federal employees are at 5 CFR Part 551. They specify that:

  • An executive is someone who customarily and regularly directs the work of two or more other employees, and has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees.
  • An administrative employee is an employee whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers, and whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
  • A professional employee is one whose primary duty is the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction or requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor, including learned professionals, creative professionals, and computer employees.
  • The foreign exemption applies when an employee is permanently stationed in an area outside the United States or certain U.S. territories and possessions, or spends all hours of work in a given workweek in one or more such areas.

Performing different work or duties for a temporary period may affect an employee's exemption status.

These policies, set by the Office of Personnel Management, generally mirror those the Labor Department applies for the private sector. However, in the federal government some FLSA-exempt employees, mainly certain managers and supervisors, are compensated for overtime under Title 5 of the U.S. Code. This is commonly known as "Title 5 overtime."

Also, federal law enforcement officers and firefighters are covered by separate statutes and may be eligible for overtime under those laws even though those in comparable positions outside the federal government would not be eligible under the Labor Department rules. However, law enforcement employees receiving availability pay (see Section 7 of this chapter) are ineligible. See 5 CFR 551.210-213.

Basic Overtime Pay Computations

For overtime work in excess of eight hours a day or 40 hours a week, eligible (that is, nonexempt) employees generally are paid one and a half times their "regular rate" of basic pay. (An exception applies to employees who are exempt under FLSA but who are nonetheless compensated for their overtime work under Title 5, United States Code; they are limited to the greater of one and one half times the hourly rate of a GS-10, step 1, or the hourly rate of their basic pay, whichever is greater. See Overtime Caps, below).

Under the FLSA, overtime pay is determined by multiplying the employee's "straight time rate of pay" by all overtime hours worked plus one-half of the employee's "hourly regular rate of pay" times all overtime hours worked. All overtime work that is ordered or approved or "suffered or permitted" must be compensated. (See 5 CFR Part 551.)

An employee's regular rate of pay for determining "total remuneration" and "straight time rate of pay" when computing overtime pay under the FLSA includes basic pay, locality-based comparability payments, special salary rates, special law enforcement adjusted rate of pay. An employee's regular rate also includes various forms of premium pay (see Section 7 of this chapter), such as pay for Sunday, night, or holiday work, and hazardous/environmental differentials. The "hourly regular rate" is computed by dividing the "total remuneration" paid to an employee in the workweek by the number of hours in the workweek for which such compensation is paid.

Exempt employees may not receive premium pay that will cause their aggregate pay for a biweekly period to exceed the maximum rate of GS-15, step 10. A separate GS-15, step 10 annual limitation on premium pay applies to employees who are determined to be performing emergency work involving a direct threat to life or property. The maximum biweekly or annual earnings limitations on Title 5 premium pay do not apply to FLSA overtime pay.

The straight time rate of pay is multiplied by all overtime hours worked plus one-half of the employee's hourly regular rate of pay times all overtime hours worked. (See 5 CFR 551, subpart E.)

The accompanying example of overtime pay computation is based on an annual basic pay rate of $35,752, roughly a mid-level rate for a GS-5 position:

Total Hours of Work: 52 hrs
Overtime Work: 12 hrs
Night Work: 40 hrs
Sunday Work: 8 hrs
Hourly Rate of Basic Pay: (Straight Time Rate of Pay)
$35,752 / 2,087 = $17.13
= $17.13
   
Total Remuneration:  
Basic Pay (40 hrs) $17.13 x 40 hrs = $685.20 = $685.20
Night Pay (40 hrs) .10 x $17.13 = $1.71 $1.71 x 40 hrs = $68.40 = $68.40
Sunday Premium Pay (8 hrs) .25 x $17.13 = $4.28 $4.28 x 8 hrs = $34.24 = $34.24
Straight Time Pay $17.13 x 12 hrs = $205.56
Total Remuneration = $993.40
   
Hourly Regular Rate of Pay:  
$993.40 / 52 hrs = $19.10
   
FLSA Overtime Pay:  
Straight Time Rate of Pay x All Overtime Hours Worked $17.13 x 12 = $205.56 = $205.56
One-half x Hourly Regular Rate of Pay x All Overtime Hours Worked 0.5 x $19.10 = $9.55 $9.55 x 12 = $114.60 = $114.60
Total FLSA Overtime Pay = $320.16
   
Weekly Pay:  
Basic Pay = $685.20
Night Pay = $68.40
Sunday Premium Pay = $34.24
FLSA Overtime Pay = $320.16
Total Weekly Pay =$1,108.00

Overtime Caps

Some employees, mainly certain managers and supervisors, are exempt from the FLSA but may receive overtime pay under Title 5, U.S. Code ("Title 5 overtime"). They are limited in overtime to either one and one half times the hourly rate of a GS-10, step 1, or the hourly rate of the employee's basic pay, whichever is greater, under 5 U.S.C. 5542(a)(2)).

The limitation does not apply to overtime pay calculations resulting from extra hours worked by employees considered nonexempt under the FLSA. In addition:

  • Department of Interior and Agriculture employees engaged in wildland fire suppression activities receive 150 percent of their hourly pay for overtime hours regardless of their hourly pay rate under 5 U.S.C. 5542(a)(5).
  • Transportation Department non-managerial employees in positions GS-14 or
    lower who the Secretary determines are critical to the operation of the air traffic control system receive 150 percent of their hourly rate of pay for overtime work under 5 U.S.C. 5542(a)(3).
  • Law enforcement officers earn at least their hourly rate of basic pay for overtime work under 5 U.S.C. 5542(a)(4)(B), and firefighters compensated under 5 U.S.C. 5545b earn at least their firefighter hourly rate of pay for all overtime work under 5 U.S.C. 5542(f)(2).

Overtime vs. Compensatory Time Off

Compensatory time off is time off with pay in lieu of overtime pay for irregular or occasional overtime work, or when permitted under agency flexible work schedule programs, time off with pay in lieu of overtime pay for regularly scheduled or irregular or occasional overtime work. Compensatory time off may be approved in lieu of overtime pay for irregular or occasional overtime work for both FLSA exempt and nonexempt employees who are covered by the definition of "employee" at 5 U.S.C. 5541(2). Compensatory time off can also be approved for a federal wage system employee, as defined at 5 U.S.C. 5342(a)(2).

See Compensatory Time Off in Chapter 5, Section 1.

Overtime for Training

Time spent in apprenticeship or other entry-level training outside regular working hours is not considered hours of work, provided no productive work is performed during such periods. However, under 5 CFR 551.423(a)(1), time spent in training during regular working hours is considered hours of work. "Regular working hours" means the days and hours of an employee's regularly scheduled administrative workweek.

For example, if FLSA-covered employees are scheduled in advance of the administrative workweek to attend a six-day entry-level training class for a specified number of hours, those regularly scheduled training hours the sixth day are "regular working hours" and are considered hours of work for overtime pay purposes.

An employee may not receive compensatory time off in lieu of overtime pay for attending an extended training session or course. Compensatory time off may be approved instead of overtime pay only for irregular or occasional (unscheduled) overtime hours of work. If an employee is scheduled in advance of his or her administrative workweek to attend an extended training course, such training would not be irregular or occasional (unscheduled) overtime hours.

Employees on flexible work schedules may earn compensatory time off for regularly scheduled overtime hours. However, employees usually are not on flexible work schedules during periods of training.

FLSA Claims

Employees who believe they were incorrectly denied overtime pay may file a Fair Labor Standards Act claim with either their employing agency or with the Office of Personnel Management, but cannot pursue the same claim with both the agency and OPM at the same time. Employees who get an unfavorable decision on an administrative FLSA claim from the agency may still file a claim with OPM. However, the reverse is not true.

An FLSA pay claim is subject to a two-year statute of limitations, except in cases of a willful violation, where the statute of limitations is three years.

For more information, see Section 1 in Chapter 10 and www.opm.gov/FLSA/index.asp.

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