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PHS Instruction 38-550-1
Subject: Title 38 Premium Pay

PHS: 38-550-1-00

Purpose and Legal Authorities

10

Coverage, Eligibility and Exclusions

20

References and Definitions

30

Authorities and Responsibilities

40

Policy

50

Title 38 Premium Pay Provisions

A.

Premium Hourly Rate of Basic Pay

B.

Base Overtime Rate

C.

Holiday Pay

D.

Night Differential

E.

Weekend Differential

F.

On-Call Pay

G.

Call-Back Pay

H.

Compensatory Time-Off From Duty

I.

Weekend Alternative or Baylor Plan

J.

Interrelationship of Premium Pay Provisions

K.

Premium Pay Limitation

60

Procedures and Documentation Requirements

70

Evaluation and Reporting Requirements

Exhibit 38-550-1-A

COMPARISON OF PREMIUM PAY PROVISIONS UNDER TITLE 38 AND TITLE 5

Exhibit 38-550-1-B

FORMAT FOR REQUEST FOR APPROVAL OF SPECIAL TITLE 38 PREMIUM PAY

Exhibit 38-550-1-C

FORMAT FOR PREMIUM PAY PRACTICES SURVEY

Exhibit 38-550-1-D

FORMAT FOR EVALUATION OF TITLE 38 PREMIUM PAY

PHS:
38-550-1-00 PURPOSE AND LEGAL AUTHORITIES

This Instruction establishes Public Health Service policies and procedures for payment of premium pay under Title 38, Chapter 74, Subchapter IV, Sections 7453, 7454, 7455, 7456, and 7457. Authority to pay Title 38 premium pay to PHS employees has been provided for:

  1. all of the agencies of the Public Health Service, via a delegation agreement between the U.S. Office of Personnel Management (USOPM) and the Department of Health and Human Services (DHHS). The delegation agreement was effective on 12/14/93 and extends authorities for an initial two-year period, with the possibility of extensions beyond that timeframe; and
  2. the National Institutes of Health (NIH), via Public Law 99-349, dated July 1986, Public Law 100-436 dated September 1988, and Public Law 100-607 dated November 1988. The statutory authority is a permanent authority.

This Instruction supplements and should be used in conjunction with Title 38 statute, and the delegation agreement, as applicable.

PHS:
38-550-1-10 COVERAGE, ELIGIBILITY AND EXCLUSIONS

  1. This Instruction covers permanent and temporary civilian PHS employees who are assigned to occupations and/or positions that have been approved for receipt of Title 38 premium pay. Unless otherwise noted in specific provisions, part-time and intermittent employees possess the same eligibility for Title 38 premium pay as do full-time employees.
  2. Occupations or positions that may be considered for application of Title 38 premium pay include:
    1. those which are assigned to the General Schedule (GS) system (including those designated as GM) or which would be covered by the General Schedule system were it not for the provisions of the USOPM delegation agreement, e.g. Title 38 Rank-in-Person; and
    2. which provide direct patient care services or have been determined to be providing a service incident to direct patient care services; or
    3. nurses or allied health occupations at the National Institutes of Health.
  3. Positions in the following occupations/pay plans may not be covered by Title 38 premium pay:
    1. Medical or Dental Officers who have been approved for receipt of Physician or Dentist Special Pay under 38 USC 7431 - 7438.
    2. Senior Executive Service positions (ES);
    3. Executive Schedule positions (EX);
    4. Administratively Determined positions (AD);
    5. Senior Level (SL) or scientific and professional positions paid under 5 U.S.C. 5376 (ST); and
    6. Commissioned Corps Officers (CC).

PHS:
38-550-1-20 REFERENCES AND DEFINITIONS

  1. The following references are used in this Instruction:
    1. Title 38 of the United States Code, Chapter 74, Sections 7453, 7454, 7456 and 7457.
    2. Public Law 99-349, dated July 1986, Public Law 100-436 dated September 1988, and Public Law 100-607 dated November 1988 (NIH only).
    3. USOPM Delegation Agreement with the Department of Health and Human Services, dated November 1993.
    4. 5 USC, Section 5371 and Chapter 55, Subchapter V, and 5 CFR (Code of Federal Regulations), Parts 550 and 551.
    5. DHHS Instruction 550-1, Premium Pay (Title 5).
    6. DHHS Instruction 610-1, Basic Workweeks and Work Schedules.
    7. PHS Interim Instruction 38-100-1, Title 38 (General Provisions).
  2. The following definitions are applied in this Instruction:
    1. Administrative Workweek is the period of seven consecutive calendar days beginning at 12:00 a.m. Sunday and ending at midnight the following Saturday.
    2. Base Overtime Rate is one and one-half the employee's Title 38 premium hourly rate of basic pay.
    3. Basic Overtime Requirement means work in excess of 8 hours in one day or 40 hours in the administrative workweek. For employees participating in alternative work schedules, the basic overtime requirement means work in excess of the hours specified in the alternative work schedule provided the scheduled hours are more than 8 hours in one day or 40 hours in an administrative workweek.
    4. Basic Premium Pay Package includes the base overtime rate, night, Sunday, holiday and call-back Title 38 premium pay provisions.
    5. Basic Rate of Pay is the rate of pay fixed by law or administrative action for the position held by the employee. It includes special salary rates or locality based comparability pay under 5 USC 5304, but does not include other pay components, e.g., retention allowances, supervisory differential, cash awards, premium pay, etc.
    6. Baylor or Weekend Alternative Plan is two regularly scheduled 12-hour tours of duty within the period midnight Friday through midnight Sunday. In this Department, the administrative workweek begins on Sunday, therefore, a Baylor tour will be completed over two weekend periods.
    7. Baylor Hourly Rate of Basic Pay is the annual rate of pay divided by 1248.
    8. Call-Back Work is overtime work performed outside regular work hours for which an employee is required to: a) remain at the worksite at the end of the specified tour, b) return to the worksite, or c) report on a day for which he/she was not scheduled to work.
    9. Holiday Duty is work on a holiday designated by Federal statute or Executive order.
    10. Hourly Rate of Basic Pay is the annual rate of pay divided by 2087.
    11. In Lieu of Holiday is a day that is designated as a holiday for an individual employee, instead of a legal holiday or a day declared to be a holiday by legislation or Executive order.
    12. Night Work is work performed on a tour of duty, any part of which is within the period beginning at 6:00 p.m. and ending at 6:00 a.m.
    13. On-Call Duty is officially scheduled duty outside regular work hours or on a holiday during which an employee stands ready to return to the work site upon notification of need.
    14. Premium Hourly Rate of Basic Pay is the annual rate of basic pay divided by 2080.
    15. Regularly Scheduled work is work scheduled before the beginning of the administrative workweek.
    16. "Special" Title 38 Premium Pays are those not included in the Basic Premium Pay Package, i.e., on-call and Saturday pays, and the Baylor or Weekend Alternative Plan.
    17. Tour of Duty is the hours of a day and the days of the administrative workweek for which an employee is scheduled to work, including overtime hours.
    18. Weekend Work is work performed on a tour of duty, any part of which is within the period beginning midnight on Friday and ending at midnight on Sunday.

PHS:
38-550-1-30 AUTHORITIES AND RESPONSIBILITIES

  1. Authority Delegated and to Whom
    1. The Deputy Assistant Secretary for Health Management Operations (DASHMO) has the authority to:

    PHS-wide

    1. approve PHS Title 38 premium pay policy;
    2. approve the application of the Title 38 base overtime rate and other premium pay provisions under the USOPM/DHHS delegation agreement to positions/occupations that perform direct patient-care services or services incident to patient care in a non-clinical capacity;
    3. approve an increase to the percentage rate of one or more premium pays;

      4. OASH

    4. approve the application of the Title 38 base overtime rate and other premium pay provisions under the USOPM/DHHS delegation agreement to OASH positions;
    5. approve overtime work to be performed by an employee, including work at an alternative worksite; and
    6. approve exceptions to the GS-15, step 10, biweekly maximum earnings limitation under designated emergency circumstances. NOTE: Prior written concurrence must be obtained from the delegated appointing authority. Copies of approved requests must be submitted to the Personnel and Pay Systems Division, OASPER, together with amended Time and Attendance cards.
    1. PHS agency heads have been delegated:
    1. with further redelegation authorized to an individual reporting directly to him/her, the authority to approve the application of the Title 38 base overtime rate and other premium pay provisions under the USOPM/DHHS delegation agreement to positions/occupations that perform direct patient-care or services incident to patient care in a clinical capacity.
    2. with further redelegation authorized to the second level of supervision or higher, or to the first level supervisor when the second level supervisor is not located in the same commuting area, the authority to:
      1. approve overtime work to be performed by an employee, including work at an alternative worksite; and
      2. approve exceptions to the GS-15, step 10, biweekly maximum earnings limitation under designated emergency circumstances. (See NOTE in paragraph 1f. above.)
    3. with no further redelegation authorized, the authority to:
      1. recommend to the DASHMO the application of the Title 38 base overtime rate and other premium pay provisions under the USOPM/DHHS delegation agreement to positions/occupations that perform direct patient-care services or services incident to patient care in a non-clinical capacity; and/or
      2. recommend to the DASHMO an increase to the percentage rate of one or more premium pays.

        3. NOTE: Requests for designation of emergency situations under the authority cited in paragraphs 1a. and 2b.(2) above, must be forwarded through the Director, Office of Personnel Management, PHS, to the Assistant Secretary for Personnel Administration, OS.

      3. The statutory authority of the Director, NIH, for nurses and allied health specialists, includes the authority to approve the payment of the Title 38 base overtime rate and other premium pay provisions, with redelegation authorized to an individual reporting directly to him/her. The provisions in paragraphs 2b.(1) and (2) and 2c.(2) above also have been delegated with the level of redelegation described in those paragraphs.
  2. Responsibilities
    1. Agency Heads have the responsibility for establishing agency plans that address the application of premium pay provisions within their agency, including the maintenance of records for occupations/positions approved for receipt of Title 38 premium pay.
    2. Personnel offices with appointing authority have the responsibility for:
    1. annotating an employee's personnel records to reflect authorization of Title 38 premium pay and for coordinating with payroll representatives regarding the recording of Title 38 premium pays on time and attendance records; and
    2. evaluating the use of Title 38 premium pay authorities.

PHS:
38-550-1-40 POLICY

  1. The payment of the Title 38 base overtime rate and other premium pay provisions to an occupation is discretionary. Decisions to implement the overtime rate and other premium pay for one or more of the eligible occupations will be based on the following considerations:
    1. the need to maintain a competitive posture with non-Federal or Federal facilities;
    2. the need to maintain equity between similar positions within the agency; and
    3. budgetary constraints.
  2. When an occupation is approved for receipt of the Title 38 base overtime rate described in Section 38-550-1-50., below, it also will be covered automatically by the following other Title 38 premium pay provisions: night pay, Sunday pay, holiday pay, and call-back pay. These provisions are extended as a "Title 38 basic premium pay package" and replace the counterpart differentials or pays under 5 USC, Chapter 55, Subchapter V., i.e., the Title 5 overtime rate and night, Sunday, holiday and call-back premium pay provisions.

    3. The Title 38 basis for computation of night, Sunday, holiday and call-back pays, described in Section 550-1-50., below, while slightly more advantageous to the employee than T.5 provisions, is not considered to be so significantly different as to warrant a "needs-based" justification. (See Exhibit 38-550-1-A, Comparison of Premium Provisions under Title 38 and Title 5 for a summary comparison of these provisions.) In addition, it is not administratively feasible to pay certain premium pays under Title 5 and others under Title 38.

    "Special" Title 38 premium pay provisions, i.e., Saturday differential, on-call pay, or Weekend Alternative Plan (Baylor Plan), for which no counterpart exists in Title 5, will not be automatically extended with the Title 38 base overtime rate. These special provisions will be extended to positions/occupations on a needs basis. However, they may not be extended solely to an occupation without the application of the Title 38 basic premium pay package.

    In determining whether an occupation approved for receipt of the Title 38 basic premium pay package should also be considered for Saturday, on-call, or Weekend Alternative, the management official designated in Section 38-550-1-30., above, must consider the following "needs-based" factors:

    1. Mission-specific requirements dictate the need for payment of the premium rate, e.g., inability to staff a Saturday shift in a clinic that operates seven-days per week;
    2. The type of pay under consideration is being paid in other Federal or non-Federal facilities in the relevant labor market. Documentation of current pay practice should include: the name of the facilities; the pay authorized for the positions/occupations, i.e., Saturday, on-call, or Baylor; and the rate(s) paid; and/or
    3. There is a recruitment or retention problem in the occupation under review, as documented by: a special salary rate authorized under either 5 USC 5305 or 38 USC 7455; a USOPM granted direct-hire authority; or case-specific documentation such as vacancy rates, turnover rates, etc.
  3. Employees in occupations that have been approved for application of the Title 38 base overtime rate and other premium pay provisions will be compensated fairly and equitably and in accordance with governing Title 38 provisions for each period of ordered and approved work. Employees who are assigned to the same position and who are required to perform the same work on the same tour or shift will be compensated in a consistent manner.
  4. Overtime must be ordered and approved by persons with properly delegated authority.
  5. Overtime work must be recorded by the employee performing the overtime work at the time it is worked, e.g., via time-recording device or sign-in/sign-out sheets.
  6. Whenever both Title 38 and the Fair Labor Standards Act address the payment of overtime and/or another premium pay, employees will be paid whichever provides the greater benefit. Note: In determining completion of work in excess of 40 hours in the administrative workweek, time during which an employee is "suffered or permitted" to work overtime will be counted.
  7. Compensatory time off from duty in lieu of pay for overtime service is permitted only with the voluntary written request of the employee. Compensatory time that is not used within 8 pay periods will be paid at the overtime rate with applicable differentials.

PHS:
38-550-1-50 TITLE 38 PREMIUM PAY PROVISIONS

  1. Premium Hourly Rate of Basic Pay

    2. For purposes of computing the Title 38 base overtime rate and other premium pays, the Title 38 Premium Hourly Rate of Basic Pay will be used. This rate is derived by dividing the employee's annual rate of basic pay by 2080. The Title 38 premium hourly rate of basic pay differs from the regular hourly rate of basic pay used for all other pay administration purposes, for which the annual divisor is 2087.

  2. Base Overtime Rate
    1. All employees that have been approved for application of the Title 38 base overtime rate will receive one and one-half times their premium hourly rate of basic pay for service in excess of eight hours per day or forty hours in an administrative workweek.
    2. Employees participating in alternative work schedules, e.g., a compressed work schedule, will receive the Title 38 overtime rate for service in excess of the hours specified in the schedule if these hours are more than 8 hours in one day or 40 hours in an administrative workweek. For example, an employee who participates in a compressed work schedule of 4 ten-hour workdays in one week, will receive Title 38 overtime for hours in excess of ten hours in one day or forty hours in the week.
    3. Overtime must be at least 15 minutes in duration in one day to be creditable for overtime pay.
  3. Holiday Pay
    1. All employees approved for receipt of Title 38 premium pay will be paid double the employee's premium hourly rate of basic pay for each hour worked on a holiday, including overtime hours.
    2. Employees who are required to perform work on a holiday are entitled to at least two hours of holiday pay.
    3. Holiday pay is payable for the legal Federal holidays established in 5 USC 6103, and for other days declared to be a holiday by Federal statute or Executive order. When a holiday falls on a non-workday outside of a full-time employee's workweek, the employee is entitled to holiday pay for work performed on his/her designated "in-lieu" of holiday. Note: an employee who performs work both on the designated "in-lieu" of holiday and on the actual legal holiday may be paid holiday pay only for work performed on the actual legal holiday. For a complete discussion of in-lieu of holidays, see HHS Instruction 610-1, Basic Workweeks and Work Schedules.
  4. Night Differential
    1. All employees approved for receipt of Title 38 premium pay will be paid an additional ten percent of the employee's premium hourly rate of basic pay, for each hour of an assigned tour of duty if at least four hours fall between 6 p.m. and 6 a.m. When less than four hours fall between 6 p.m. and 6 a.m., the employee will receive ten percent of the premium hourly rate of basic pay for each hour worked between those times.
    2. Employees also will be paid night differential when substituting for another employee during night hours.
  5. Weekend Differential

    6. Employees are entitled to earn Weekend Differential for all regularly scheduled paid hours of work on Saturday and Sunday, including periods of paid leave. NOTE: The Treasury and General Government Appropriations Act of 1999 restricts the payment of Sunday premium pay to work actually performed on Sunday. This provision is awaiting implementation in HHS.

    1. Sunday Differential
      1. All employees approved for receipt of Title 38 premium pay will be paid an additional 25 percent of the employee's premium hourly rate of basic pay, for an entire scheduled tour that includes service between midnight on Saturday and midnight on Sunday.
      2. Employees also will be paid Sunday differential when substituting for another employee during Sunday hours.
    2. Saturday Differential
    1. Saturday differential is a "special" Title 38 premium pay provision. It will not be extended automatically with the Title 38 base overtime rate but will be applied to positions/occupations only after a needs determination, as described in Section 38-550-1-40B., above. Exhibit 38-550-1-B, Format for Request for Approval of Special Title 38 Premium Pay, provides a sample format for documenting the approval of payment of Saturday differential.
    2. Employees approved for receipt of Saturday differential will be paid an additional 25 percent of the employee's premium hourly rate of basic pay for an entire scheduled tour that includes service between midnight on Friday and midnight on Saturday.
    3. Employees approved for receipt of Saturday differential will be paid the differential when substituting for another employee during Saturday hours.
  6. On-Call Pay
    1. On-call pay is a "special" Title 38 premium pay provision. It will not be extended automatically with the Title 38 base overtime rate but will be applied to positions/occupations only after a needs determination, as described in Section 38-550-1-40B., above. Exhibit 38-550-1-B provides a sample format for documenting the approval of payment of on-call pay.
    2. Employees approved for receipt of on-call pay will be paid an additional 10 percent of the employee's base overtime rate of basic pay for each hour of on-call duty on a designated Federal holiday or outside the employee's regular work hours.
    3. Employees who are on-call must:
      1. be accessible by telephone or beeper;
      2. be available to return to the worksite within a designated response time; and
      3. be in a physical condition that allows him/her to perform duty assignments.

        4. In the event of incapacitation or unavailability during a period of on-call duty, an employee must promptly report to the designated supervisory official to be released from on-call duty. If released from on-call duty, the employee will not be paid on-call pay for the period of time he/she was relieved from duty.

    4. On-call pay is suspended during periods of actual call-back overtime or holiday duty. (See Section G. below for a discussion of call-back pay.) On-call resumes after the call-back period is complete if there is any scheduled on-call duty remaining.
    5. Employees who are available for telephone consultations but are not required to stand ready to return to the worksite will not receive on-call pay.
    6. Relationship of on-call pay under Title 38 to regularly scheduled stand-by duty pay under Title 5

      7. Regularly scheduled stand-by duty pay is premium pay approved for a position on an annual basis under 5 USC 5545(c)(1). It is paid when an employee is regularly required to remain at or within the confines of his station during longer than ordinary periods of duty, a substantial part of which consists of remaining in standby status rather than performing work.

      While both stand-by duty under Title 5 and on-call pay under Title 38 provide that employees are paid to stand ready to work, the conditions under which the premium pay is granted and the restrictions on the employee's whereabouts and activities differ significantly.

      Standby-duty pay is paid on an annual basis for regularly scheduled overtime work, i.e., overtime work that is regularly assigned and scheduled before the beginning of the administrative workweek. On-call pay is paid on a biweekly basis for on-call duty on an overtime basis or on a holiday. On-call duty need not be regularly scheduled, i.e., it may be scheduled at any time before it is worked.

      While on standby duty, employees are not allowed to leave their station (worksite or quarters) e.g., to leave a telephone number where they may be reached. (See HHS Instruction 550-1-80-C for a complete description of quarters restrictions under stand-by duty.) By contrast, under Title 38 on-call pay, employees may leave their station, as long as they leave a telephone number where they may be reached or carry a beeper to notify them to call-in to the worksite. (See Section F.4., above for a description of other requirements associated with on-call pay.)

      Furthermore, while Title 5 stand-by is in lieu of other forms of Title 5 premium pay, including regularly scheduled overtime, holiday, night differential and Sunday premium pay, Title 38 on-call pay is additional to other forms of Title 38 premium pay.

  7. Call-Back Pay
    1. Call-back pay is paid for overtime work performed outside regular work hours for which an employee is required to:

      2. a) remain at the worksite at the end of the specified tour, b) return to the worksite, or c) report on a day for which he/she was not scheduled to work. It is paid at the Title 38 premium hourly rate of pay, for a minimum of two hours for each call-back.

    2. Part-time and intermittent employees are eligible for call-back pay once they have met the basic Title 38 overtime requirement.
    3. Call-backs to work that do not qualify as overtime hours are paid at the basic hourly rate of pay.
    4. Call-back overtime pay begins from the time the employee reports for duty.
  8. Compensatory Time-Off From Duty

    9. When compensatory time-off has been authorized in lieu of overtime pay, as provided in Section 38-550-1-40.G., above, the amount of the compensatory time off will equal the amount of time worked in overtime status, e.g., one hour of overtime worked for one hour of compensatory time off, except for:

    1. call-back overtime, for which the employee is entitled to a minimum of 2 hours of compensatory time-off for each call back; and
    2. Baylor hours. (See Section I.7., below for a discussion of Baylor compensatory time.)
  9. Weekend Alternative or Baylor Plan
    1. Weekend Alternative or Baylor Plan is a "special" Title 38 pay provision. It will not be extended automatically to Title 38 occupations, but will be applied to positions/occupations only after a needs determination, as described in Section 38-550-1-40B., above. Exhibit 38-550-1-B provides a sample format for documenting the approval of application of the Baylor Plan.
    2. Employees in occupations that have been approved for Weekend Alternative or Baylor, are paid for 40 hours of the employee's basic hourly rate of pay for completion of 24 Baylor hours worked in two twelve-hour shifts within the period commencing midnight Friday and ending midnight Sunday. In this Department, the administrative workweek begins on Sunday, therefore, a Baylor tour will be completed over two weekend periods.
    3. The Baylor hourly rate of basic pay is determined by dividing the employee's annual rate of basic pay by 1248.
    4. Changes in tour of duty to or from the Baylor Plan are effective only at the beginning or end of a pay period and are documented as described in Section 38-550-1-60.A.2., below.
    5. Baylor employees are charged annual or sick leave on an accelerated basis of 1.75 hours of leave for each hour of absence during Baylor hours.
    6. Baylor employees are not entitled to any other premium pay during Baylor hours, e.g., night, Saturday, Sunday, holiday, etc. However, a Baylor employee is eligible to receive the premium hourly rate of pay and other applicable premium pay provisions for work:
      1. in excess of Baylor hours on Saturday or Sunday;
      2. in excess of 8 hours on a day other than Saturday or Sunday; and/or
      3. in excess of 40 hours in the administrative workweek. Note: for purposes of determining application of this 40-hour threshold, Baylor hours are not credited on an accelerated basis but are counted on an hour-per-hour basis.
    7. When compensatory time-off has been authorized in lieu of overtime pay, as provided in Section 38-550-1-40.G, above, Baylor employees may earn compensatory time off from duty for overtime hours worked. (See Section 6., above for determination of overtime hours for Baylor employees.) Compensatory time-off during Baylor hours is used at the accelerated rate of 1.75 hours of compensatory time off for each Baylor hour.
    8. For all personnel management purposes, except for the calculation of FTE, Baylor employees are considered to be full-time, e.g., retirement, leave accumulation, etc. For FTE purposes, a Baylor employee is counted as .6 FTE.
    9. Employees who substitute for another employee during Baylor hours may not be paid at the Baylor rate but will receive all applicable forms of other Title 38 premium pay, i.e., Saturday, Sunday, night, etc.
  10. Interrelationship of Premium Pay Provisions
    1. Non-Baylor employees identified for receipt of Title 38 premium pay are eligible to receive two or more types of applicable premium pay for the same period of service, except as noted for holiday pay in Section 2., below. For example, an employee scheduled to work from 3:00 p.m. to 11:00 p.m. on Sunday is eligible for both Sunday differential at 25 percent and night differential at 10 percent of the employee's Title 38 premium hourly rate of basic pay.
    2. Non-Baylor employees who perform overtime service on a holiday are entitled to the holiday rate of pay for each hour of overtime work, i.e., double the employee's premium hourly rate of basic pay, instead of the Title 38 base overtime rate of pay for those hours. It should be noted that other forms of premium pay continue to be available for payment for work on a holiday, i.e., night, weekend differential, etc.
    3. Baylor employees are not entitled to additional pay of any kind for work performed during Baylor hours (See Section I.6., above, for discussion of the application of premium pay provisions for work beyond Baylor hours.)
  11. Premium Pay Limitation
    1. Except as provided in 2. below, an employee may be paid the Title 38 base overtime rate and other premium pay only to the extent that the payment does not cause the employee's aggregate rate of pay for any pay period to exceed the maximum rate payable to GS-15. The calculation of the maximum rate of the GS-15 includes any applicable locality-based comparability payment under 5 USC 5304 and/or a special salary rate under 5 USC 5305 or 38 USC 7404.
    2. The pay period limitation described in 1., above does not apply to:
    1. employees who are determined to be covered by the overtime provisions of the Fair Labor Standards Act; and
    2. any pay period during which an employee is determined to be performing work in connection with an emergency identified by the U.S. Office of Personnel Management or the Assistant Secretary for Personnel Administration, Office of the Secretary. In such cases the limitation will be applied on an annual basis. See 5 CFR 550.106 for a further discussion on this issue.

PHS:
38-550-1-60 PROCEDURES AND DOCUMENTATION REQUIREMENTS

  1. Personnel Processing and Identification of Employees for Receipt of Premium Pays
    1. Non-Baylor Employees

      2. Non-Baylor employees who are approved for receipt of Title 38 premium pay are to be identified by the special program identification (spid) code of "68." This code is input via a personnel action, either separately via a "9000" action or concurrent with another personnel action, e.g., reassignment. Assignment of this code to an individual will result in the payment of the base overtime rate, night differential, Sunday differential, holiday pay, and/or call-back for any applicable authorized periods of work. Payment of the additional "special" Title 38 premium pays, i.e., Saturday differential and on-call pay, is based on time and attendance reporting. There is no separate spid code to identify employees who receive "special" Title 38 premium pays, therefore spid code "68" will be used.

    2. Baylor Employees

      3. Baylor employees are identified by the spid code of "69." In addition, an SF-50, Notification of Personnel Action, must be processed to move employees in or out of the Baylor tour, e.g, Change in Tour of Duty, Reassignment, etc. A remark showing that the position is Weekend Alternative should be reflected on the SF-50.

  2. Requests for Change to the Rate of One or More Premium Pays

    3. When necessary to recruit or retain personnel covered by Title 38 premium pay authority, the DASHMO may increase the rate of payment for one or more types of premium pay. Such increases may be competitive with, but not exceed, the amount of the same type of premium pay paid to the same category of personnel at non-Federal facilities in the same geographic area.

    Requests to the DASHMO for a higher rate of premium pay must include a description of:

    1. the occupation/positions that are proposed for coverage at the higher rate of premium pay and the number of positions to be covered;
    2. the category of premium pay affected e.g., night, on-call, etc., and the amount of increase proposed;
    3. a report of survey of a reasonable representative sample of non-Federal facilities in the same labor market. The data must reflect the types or categories of premium pay authorized for the occupation/positions at each facility and the rates paid. The format shown in Exhibit 38-550-1-C, Format for Premium Pay Practices Survey, may be used to record survey data;
    4. a description of the impact of higher non-Federal premium pay rates on the PHS agency's ability to recruit and retain personnel in the occupation generally and/or a discussion of the difficulty in staffing the particular shifts or hours for which an increase is proposed;
    5. a certification of fund availability; and
    6. a report of contacts made with any collocated PHS facility(ies) that employ the occupations/positions on the applicable shifts or hours. The report should indicate whether the other PHS facilities have indicated that there are similar recruitment/retention problems and whether the facilities wish to participate in the request for increased rate(s).

      7. Requests should be forwarded to the Director, Office of Personnel Management, PHS, for review and transmission to the DASHMO.

  3. Requests for Application of Title 38 Premium Pay Benefits to Occupations/Positions in a Non-Clinical Capacity

    4. Note: NIH positions/occupations approved for receipt of Title 38 premium pay by the Assistant Secretary for Personnel Administration under separate NIH statutory authority are excluded from this procedure.

    PHS agency heads who wish to request approval of the application of the Title 38 overtime rate or other premium pay provisions to positions/occupations performing work in a non-clinical setting must prepare a memorandum to the DASHMO documenting the following points:

    1. the nature of the work performed and its relationship to direct patient care services or services incident to direct patient care;
    2. the rationale for application of the provision(s) to the positions/occupations, e.g., recruitment/retention difficulty, practice by competing employers, criticality of mission accomplishment, etc.;
    3. the number of employees to be covered and the expected duration of the coverage; and
    4. certification of fund availability.

      5. Requests should be forwarded to the Director, Office of Personnel Management, PHS, for review and transmission to the DASHMO.

PHS:
38-550-1-70 EVALUATION AND REPORTING REQUIREMENTS

The personnel officers of each PHS agency and OASH are required to report on the exercise of Title 38 premium pay authorities during the first year of implementation for any occupation. Reports must be submitted on May 30 and December 30 of the first year and include information such as: 1) the coverage of occupations under premium pay authority(ies); 2) the cost of implementation of the authority(ies); 3) the impact of the authority(ies) on recruitment and/or retention and 4) the impact of the authority(ies) on management/employee satisfaction. Agencies may use the format provided in Exhibit 38-550-1-D, Format for Evaluation of Premium Pay, for this purpose or may develop an alternative report format. Reports should be forwarded to the Division of Policy, Evaluation and Compensation (DPEC), OPM/PHS, Rm. 17-89, Parklawn Building. OASH and agency headquarters personnel officers are responsible for obtaining information regarding PHS regional and field activity from regional personnel officers and/or area personnel officers, as appropriate.

During subsequent years, personnel offices must maintain auditable program records but need not report data to DPEC on a semi-annual basis. In addition, personnel offices must participate in any evaluation of Title 38 premium pay authorities by USOPM, DHHS, PHS and/or other administrative authority.

COMPARISON OF PREMIUM PAY PROVISIONS UNDER TITLE 38 AND TITLE 5

PROVISION

TITLE 38

TITLE 5

CALCULATION OF PREMIUM HOURLY RATE OF BASIC PAY

Annual Rate of Pay divided by 2080.

Annual Rate of Pay divided by 2087.

BASIC OVERTIME RATE

One and one-half times the employee's Premium Hourly Rate of Basic Pay.

One and one-half times the employee's hourly rate of basic pay, not-to-exceed one and one-half times the basic rate of GS-10 step 1.

HOLIDAY PAY

Double the employee's Premium Hourly Rate of Basic Pay for all hours worked on a holiday, including overtime hours.

Double the employee's hourly rate of pay for non-overtime hours worked on a holiday.

NIGHT DIFFERENTIAL

10 percent of the employee's Premium Hourly Rate of Basic Pay for the entire tour if at least 4 hours of a tour fall between 6:00 p.m. and 6:00 a.m. 10 percent for each hour if less than 4 hours falls within 6:00 p.m. to 6:00 a.m.

10 percent for each hour of regularly scheduled work performed between the hours of 6:00 p.m. and 6:00 a.m.

PROVISION

TITLE 38

TITLE 5

SUNDAY DIFFERENTIAL

25 percent of the employee's Premium Hourly Rate of Pay for an entire scheduled tour, including paid leave and overtime, that includes service between midnight on Saturday and midnight on Sunday. Part-time employees are eligible for Sunday differential.

25 percent for the entire tour of non-overtime hours that includes regularly scheduled service between midnight on Saturday and midnight on Sunday. Part-time employees are not eligible for Sunday differential.

SATURDAY DIFFERENTIAL

25 percent of the employee's Premium Hourly Rate of Pay for an entire scheduled tour, including paid leave and overtime, that includes service between midnight on Friday and midnight on Saturday.

No authorization for Saturday differential.

ON-CALL PAY

10 percent of the employee's base overtime rate for each hour of on-call duty on a designated Federal holiday or for overtime on-call duty.

No authorization for on-call pay.

PROVISION

TITLE 38

TITLE 5

CALL-BACK OVERTIME

Minimum of two hours of overtime pay for each call-back to the worksite.

Minimum of two hours of overtime pay for each call-back to the worksite.

BAYLOR PLAN

40 hours of the employee's basic hourly rate of pay for completion of 24 Baylor hours worked in two twelve-hour shifts contained entirely within midnight Friday to midnight Sunday.

No authorization for the Baylor Plan.

INTERRELATIONSHIP OF PREMIUM PAYS

Non-Baylor employees are eligible to receive two or more types of premium pay for the same period of service, except that holiday pay is paid for overtime hours instead of the base overtime rate.

Differs by combination of provisions, but generally more restrictive, e.g., Sunday differential may not be paid for overtime hours.

PREMIUM PAY LIMITATION

Total aggregate pay is limited in any one pay period to the maximum payable rate of GS-15.

Total aggregate pay is limited in any one pay period to the maximum payable rate of GS-15.

CHANGE TO ONE OR MORE PREMIUM PAY RATES

DASHMO can increase one or more rates of premium pay to be competitive with higher rates of premium pay paid at non-Federal facilities.

Requires statutory change.

FORMAT FOR PREMIUM PAY PRACTICES SURVEY

(See Section 38-550-1-60B.)

Complete Part I and II for each position being surveyed

I. Position Information

A. Position Title, Series and Grade Level(s):

B. Description of Work Functions:

 

C. Pay Practice/Work Schedule Being Surveyed:

(check) Comments

1. Overtime

 

 

2. On-Call Pay

 

 

3. Call-Back Pay

 

 

4. Weekend Differential

 

 

a. Saturday

 

 

b. Sunday

 

 

5. Holiday Pay

 

 

6. Night Differential

 

 

II. Data Collector Signature and Position Title Date

FORMAT FOR PREMIUM PAY PRACTICES SURVEY, cont.

Complete Parts III and IV for each facility surveyed

III. Establishment Information

Name and Address of Establishment:

Name and Title of Establishment of Contact Person:

Number of Employees in Occupation:

Hours in Basic Workweek:

IV. Establishment Premium Pay Practice

 

Rate

Requirements for Payment

Payment Limitations (Bi-weekly Maximum or other Restriction)

Comments

1. Overtime

 

 

 

 

2. On-Call Pay

 

 

 

 

3. Call-Back Pay

 

 

 

 

4. Weekend Differential

 

 

 

 

a. Saturday

 

 

 

 

b. Sunday

 

 

 

 

5. Holiday Pay

 

 

 

 

6. Night Differential

 

 

 

 

7. Baylor Plan

 

 

 

 

 

FORMAT FOR EVALUATION OF TITLE 38 PREMIUM PAY

I. OCCUPATIONAL INFORMATION

OCCUPATIONAL INFORMATION

PREMIUM PAY AUTHORITIES

Indicate the number of employees covered by each authority

POSITION TITLE

SERIES

GRADE(S)

TOTAL # OF EMPLOYEES

BASIC PREMIUM PAY PACKAGE

ON-CALL

SATURDAY

BAYLOR

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

II. COST OF IMPLEMENTATION

AUTHORITY

COSTS

 

INCREASED COSTS

REDUCED COSTS*

DIFFERENCE +/-

A. Basic Overtime Package

 

 

 

B. On-Call Pay

 

 

 

C. Saturday

 

 

 

D. Weekend Alternative (Baylor)

 

 

 

* These may be direct or indirect, e.g., reduced overtime, training, recruitment costs, etc.

III. IMPACT ON RECRUITMENT AND/OR RETENTION (Attach narrative description.)

Impact of the premium pay(s) on staffing should be assessed by reviewing recruitment and retention data either for the occupation as a whole or for the schedule or shift for which the premium pay was given.

IV. IMPACT ON MANAGEMENT/EMPLOYEE SATISFACTION (Attach narrative description.)

An assessment of the impact of the premium pay on management/employee satisfaction should be included and may be collected through targeted or general surveys.