Overtime Pay

Chapter 1: Section 6

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 Federal 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).

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).

Note: In contrast to overtime pay, “premium pay” is additional pay for working regularly or as assigned in certain special situations. See Section 7 of this chapter.

Border Patrol Officers—Public Law 113-277 of 2014 revised the method of compensating Border Patrol agents for overtime work to replace administratively uncontrollable overtime pay. Under that law (implementing rules are at 5 CFR 410, 550, 551 and 870), those agents have the opportunity late each year to elect to be assigned in the following calendar year to one of three work schedules.

A Level 1 regular tour of duty provides an overtime supplement equal to 25 percent of basic pay for a regular schedule of 10 hours each regular workday, including two overtime hours; a Level 2 regular tour of duty provides an overtime supplement equal to 12.5 percent of basic pay for a regular schedule with nine hours each regular workday, including one overtime hour; and a Basic regular tour of duty provides a regular eight-hour workday with no overtime supplement.

Generally, at least 90 percent of agents at a location must have a Level 1 tour of duty. If not enough agents choose that schedule, management may assign schedules without regard to agents’ elections. An overtime supplement is treated as part of basic pay for retirement and certain other purposes such as life insurance and severance pay and is subject to premium pay caps (see Pay Caps in Section 2 of this chapter).

An agent may not receive other premium pay for regularly scheduled overtime hours within his or her biweekly regular tour of duty (100, 90, or 80 hours, as applicable). For overtime work in excess of that tour of duty: if the additional overtime work is regularly scheduled in advance of the workweek, the work is compensated under Title 5 overtime provisions (5 U.S.C. 5542); if the additional overtime work is irregular, the work is compensated by crediting the agent with compensatory time off. Border Patrol agents are exempt from the Fair Labor Standards Act.

If the agent is absent during required scheduled overtime within the regular tour of duty (that is, obligated overtime hours), payment of the overtime supplement is not affected but the agent accrues an obligation to perform other overtime work to make up for work not performed.

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 typically rests on the duties actually performed by the employee, not merely occupational or organizational title. Certain jobs may be eligible even if they involve supervisory duties if the salary is below a certain threshold.

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 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.” Eligibility is determined by employing agencies; check with yours if you are uncertain as to your status.

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.

General information on the FLSA and claims procedures is at www.opm.gov/policy-data-oversight/pay-leave/claim-decisions/fair-labor-standards-act; fact sheets are at www.opm.gov/policy-data-oversight/pay-leave/pay-administration.

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 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 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 pay, 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 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 that of a GS-5, step 1 position.

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”); however 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). That limitation does not apply to overtime pay calculations resulting from extra hours worked by employees eligible for overtime (“nonexempt”) under the FLSA. In addition:

• Departments 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. 5545(b) 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.

Compensatory Time Off chart

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 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.

Also see Chapter 10, Section 1.

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