Fair Labor Standards Act Summary Information
Please refer to the USOPM regulations and interpretive guidance at the following URL: http://www.opm.gov/flsa
Overtime pay entitlements require supervisors and managers to exercise good judgment when approving work schedules and overseeing employees. Both regularly scheduled and irregular/occasional overtime work must be scheduled and approved in advance of being performed. Overtime that is approved and worked is compensated according to the covered provisions of the law(s) that results in the highest earnings for the employees. General Schedule (GS) and Federal Wage System (FWS) employees are entitled to:
- The overtime premium pay provisions of Title 5; and,
- Certain GS and FWS employees are entitled to overtime premium pay under the Fair Labor Standards Act - These employees are designated as FLSA nonexempt; and,
- NIH nurses and allied health employees (both FLSA exempt and nonexempt) are entitled to the overtime premium pay provisions of the NIH Title 38 premium pay, and;
- NIH firefighters are covered by the special premium pay provisions of the Title 5 Fire Fighters Pay System.
The following information is based on 5 CFR Part 551 - Pay Administration Under the Fair Labor Standards Act. Refer to this section for detailed information.
The Federal Labor Standards Act (FLSA) was enacted in 1938 and provides for minimum standards for both wages and overtime entitlements and delineates administrative procedures by which covered work time must be compensated. There are two categories that determine how employees are compensated under the FLSA. These are "Exempt" or "Non-Exempt". In accordance with the provisions of the FLSA employees who are exempt are not automatically entitled to FLSA overtime pay whereas non-exempt are compensated for any hours worked outside their normally scheduled tours of duty. It is management's responsibility to ensure that employees in non-exempt positions not work more than their scheduled tour of duty without some type of compensation (whether requested or not) provided the supervisor knows or has reason to believe that the work is being performed and has an opportunity to prevent the work from being performed. (See "suffered and permitted overtime" below).
See the NIH FLSA Decision Matrix for guidance in determining work that is covered (i.e., non-exempt) or included (i.e., exempt) from the FLSA.
Overtime Hours
To qualify as overtime, the hours worked must: exceed 8 hours in a day or 40 hours in a week; be officially ordered or approved; be performed by an employee; be documented in writing; be recorded in official T&A records; and be in addition to the normal daily or weekly work requirement. Hours in excess of a part-time work schedule are not overtime hours, unless they meet the above qualifying definition. This definition applies to all employees, those who are exempt from the FLSA and those who are nonexempt.
Nonexempt employees who work a regular work schedule (i.e., they do not participate in any part of a flexible system) may also be entitled to overtime which management "suffers or permits" them to perform. Supervisors "suffer or permit" work to take place when they know or have reason to believe the work is being performed and have or had an opportunity to prevent it. Within such a scenario, the supervisors need not have ordered the work in advance; the fact that they knew the employees were working is sufficient to entitle the employees to overtime compensation. "Suffer or permit" overtime is not, however, available to employees on flexible work schedules. "Suffer or permit" overtime may be available to employees on certain compressed work schedules. In an effort to prevent confusion, it is good management practice for the alternative work schedule plan of the organization to specially address this issue and inform the employees that by virtue of having requested an alternative work schedule they are relinquishing their opportunity to future claims of "suffered and permitted" overtime.
In addition to overtime, employees on flexible schedules may also earn credit hours. Credit hours differ from overtime/compensatory time in that credit hours are voluntary, while overtime/compensatory time is not. Employees choose and supervisors approve the working of credit hours; however, technically they are ordered to work overtime/compensatory time. Supervisors may, of course, offer employees the option of working credit hours. However, employees must not be indirectly intimidated to interfere with their right to work or not to work credit hours, or to request or not to request compensatory time off in lieu of payment for overtime hours. Employees on compressed work schedules may not earn credit hours.
OPM's comparison of flexible and compressed work schedule issues: http://www.opm.gov/oca/aws/html/appenda.asp
In certain situations, employees may work overtime on a continuing basis as a fixed part of their established schedules. This regularly scheduled overtime is somewhat rare in the Federal service. The more common type of overtime is irregular or occasional overtime--overtime that does not form any predictable pattern and, therefore, cannot be made a part of the employees' regular schedule. Irregular or occasional overtime is ordered on an ad hoc basis in response to the needs of the organization. Overtime is credited in quarter hour increments. Employees who are requested to work on a day that was not originally scheduled as a workday, or complete a normal workday schedule and depart, only to be called back to the office or other place of employment for additional duty later in the day, earn a minimum of 2 hours overtime. If the employees work more than 2 hours, the full time worked is credited; if the employees work less than 2 hours, 2 hours are credited.
Hours worked in excess of 8 hours per day are not included in computing hours of work in excess of 40 hours per week. This means that employees who have already received overtime credit for extra hours worked in a day cannot also use those hours to earn additional credits for the week. Only regular hours--not a combination of regular hours plus overtime or credit hours--count toward meeting the 40 hours per week standard.
Suffered or Permitted Overtime. Employers are also obligated to compensate nonexempt employees for overtime work that is allowed to take place without the appropriate prior authorization. Suffered and permitted overtime work is any work performed by employees for the benefit of an agency, whether requested or not, provided the employees' supervisors know or have reason to believe that the work is being performed and have an opportunity to prevent it. This type of overtime is not available to anyone under a flexible schedule. It does apply to regularly scheduled and potentially compressed work schedule tours of duty. Traditionally, suffer and permitted overtime work has been claimed and documented during periods of pre-shift, post-shift, or mealtime breaks. The burden of proof for claiming compensation for performing suffered and permitted overtime initially rests with the employee. To do so, the employee must evidence the following:
- Show that s/he performed overtime work under the FLSA for which s/he was not paid; and
- Produce enough evidence to show the amount and extent of that work as a matter of reasonable inference.
The adjudicator examines this information along with agency policies and practices to determine whether or not additional pay is warranted not qualify as hours worked).
