225 FW 7, Premium Pay
FWM#:
213 (new)
Date:
September 7, 1995
Series:
Personnel
Part 225:
Classification, Pay and Allowances
Originating Office: Division of Personnel
Management
7.1 Purpose. This chapter issues policy and procedures for the
administration of the premium pay provisions of title 5 of the United States
Code and the overtime provisions of the Fair Labor Standards Act (FLSA) within
the U.S. Fish and Wildlife Service (Service).
7.2 Policy. It is the policy of the Service:
A. To consider the use of premium pay as one of a number of possible options available to management for accomplishing work;
B. To use premium pay only when it has been determined to be the most appropriate and most economical means for managing personnel costs and achieving planned productivity objectives;
C. To properly and uniformly administer premium pay in accordance with governing pay regulations and Departmental and Service policy;
D. To equitably and commensurately compensate an employee, as appropriate, for all work warranting the payment of premium pay; and
E. To strictly adhere to the overtime provisions of the FLSA and ensure that only officially approved or ordered overtime is performed by nonexempt employees.
7.3 Scope. This chapter applies to any employee covered under the General Schedule, including an employee covered under the FLSA. This chapter does not apply to a prevailing rate employee covered by the Federal Wage System, an officer or member of the crew of a vessel, or a member of the Senior Executive Service.
7.4 Authorities.
A. 5 U.S.C. 5542 (Overtime rates/computation)
B. 5 U.S.C. 5543 (Compensatory time off)
C. 5 U.S.C 5545 (Night, standby, irregular, and hazardous duty differential)
D. 5 U.S.C. 5546 (Pay for Sunday and holiday work)
E. 5 U.S.C. 5547 (Limitation on payment of premium pay)
F. 5 U.S.C. 6101 (Basic 40-hour workweek; work schedules; regulations)
G. Part 550, Subpart A (Premium pay)
H. Part 551, Subparts D (Hours of work) and E (Overtime pay provisions)
I. Public Law 101-509, Sections 204, 210, and 410 (Premium Pay for emergency work, FLSA overtime and Overtime rates).
J. 20 U.S.C. 225 (a) (Portal-to-Portal Act of 1947, as amended).
K. Public Law 103-329, (Treasury, Postal Service and General Government Appropriations Act, signed September 30, 1994).
L. CG Decision B-250051, dated May 23 1994 (FLSA Statute of
Limitations).
7.5 Responsibilities.
A. The Director has responsibility for the overall direction and administration of premium pay, including the overtime provisions of the FLSA, within the Service. (Also see 7.7 below.)
B. The Assistant Director - Policy, Budget and Administration (APBA) has responsibility for establishing Servicewide policy relative to the administration of premium pay and for ensuring that the use of premium pay is appropriate and in compliance with regulations and Service and Departmental policy.
C. The Division of Personnel Management (DPM), under the direction of the APBA, is responsible for the development, implementation, and management of Service policy and procedures on premium pay and the overtime provisions of the FLSA.
D. Regional Directors have responsibility for the overall administration and management of premium pay within their Regions and for ensuring that the execution of this responsibility is in conformance with Service policy. In addition, see 7.7, below for inherent responsibilities relating to the approval of overtime.
E. Assistant Directors have the responsibilities relating to the approval of overtime as indicated in 7.7, below.
(1) Have responsibility for evaluating work demands and methods for accomplishment, being cost effective regarding expenditures for premium pay, and making recommendations to approving officials. Because supervisors are intimately knowledgeable of the work situation and the availability of staff and resources, they have responsibility for exploring the following options to determine if premium pay costs can be reduced or eliminated by:
(a) Reassigning work to other employees;
(b) Rescheduling tours of duty;
(c) Using flexible and compressed work schedules;
(d) Establishing work priorities;
(e) Granting compensatory time off;
(f) Using call-back overtime;
(g) Discontinuing low priority activities; or
(h) Seeking other more cost effective alternatives.
(2) Must determine, following a decision that overtime is essential to work accomplishment, the type of overtime needed for the task and ensure that the overtime is authorized and documented in accordance with guidance in this chapter. In addition, if it is determined that the work necessitating the overtime meets the conditions for annual premium pay, supervisors must ensure that only qualifying work is used as a basis for making determinations regarding the payment of administratively uncontrollable overtime (AUO), availability pay, and pay for standby duty. Refer to 225 FW 8 for guidance on AUO and to 225 FW 10 for availability pay.
(3) Must ensure that an employee's regularly scheduled administrative workweek reflects the employee's actual work requirement (including authorized overtime work).
(4) Must ensure that an employee subject to the FLSA is not suffered
or permitted to work (see 7.6S).
An employee must not be permitted to begin the workday before his/her tour of
duty commences, to perform work for the benefit of the Service during a lunch
break, or to end the workday after his/her tour of duty has ended unless the
work is authorized by the supervisor and compensation will be paid to the
employee.
7.6 Definitions.
A. Administrative Workweek means a period of 7 consecutive calendar days. The administrative workweek for Service employees is normally Sunday through Saturday.
B. Basic Work Requirement is synonymous with basic workweek in terms of delineating a scheduled tour of duty for an employee on a flexible or compressed work schedule. It comprises the number of daily and biweekly hours, excluding overtime hours, that an employee is required to work or is required to account for by leave or other means. The basic work requirement for a full-time employee is 80 hours for the 2-week period constituting the pay period. For a part-time employee, it is the number of hours (usually ranging from 32 to 64 hours) the employee is officially scheduled to work within the same 2-week period. All work performed by an employee within the basic work requirement is regularly scheduled work for premium pay and hours of duty purposes.
C. Basic Workweek for full-time employees means a 40-hour week that does not extend over more than 6 of any 7 consecutive days and that specifies the days and hours within the administrative workweek constituting the basic workweek. For a part-time employee, the basic workweek is the specific days and hours the employee is officially scheduled to work during the administrative workweek. The basic workweek for an employee serving under a first 40-hour tour of duty (i.e., a tour without the requirement for specific days and hours within the administrative workweek) is the first 40 hours of work performed within a period of not more than 6 days of the administrative workweek. Although the first 40-hour tour of duty may be used in any situation when deemed necessary, it is typically used for an employee engaged in professional or technical engineering or scientific activities who is assigned to perform the duties of a professional or support technician position in the physical, mathematical, natural, medical, or social sciences or in engineering or architecture. Because a flexible or compressed work schedule may provide for a tour of duty that is other than the standard 40-hour workweek, an employee on either of these schedules has a basic work requirement rather than a basic workweek.
D. Criminal Investigator means a law enforcement officer as defined in 7.6I below who is the incumbent of a position properly classified in the GS-1811 or GS-1812 series of the General Schedule classification system. (Special Agents in the GS-1812 series meet this definition.)
E. Emergency means a temporary condition posing a direct threat to human life or property, including a forest or wildland fire, a search and rescue operation, civil disturbance, and natural disaster.
F. Exempt Employee means an employee who is subject to the overtime pay provisions of 5 U.S.C. 5542 and who is not subject to the Fair Labor Standards Act.
G. Holiday Work means nonovertime work performed by an employee during a regularly scheduled daily tour of duty on a holiday or on a day that has been designated as a holiday.
H. Irregular or Occasional Overtime Work means overtime work that is
not part of an employee's regularly scheduled administrative workweek. Overtime
work of this nature is considered irregular or occasional when it is not
scheduled in advance of the beginning of an employee's administrative workweek.
I. Law Enforcement Officer means an employee who:
(1) Occupies a primary or rigorous position as defined in 5 U.S.C. 8331(20) and 5 U.S.C. 8401(17), respectively, and whose primary duties are the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of the United States and, in the case of a FERS employee, the protection of officials of the United States against threats to personal safety; or
(2) Serves in a covered secondary law enforcement position, but:
(a) Who does not meet the definition of law enforcement officer as provided in 5 U.S.C. 8331 because he/she did not transfer directly to the secondary position from a primary law enforcement position; or
(b) Is an employee who serves in a covered secondary law enforcement position, but who does not meet the definition of law enforcement officer as provided in 5 U.S.C. 8401 because he/she did not transfer directly to the secondary position after performing duties in a rigorous law enforcement position for at least 3 years.
J. Nightwork means regularly scheduled work that is performed by an employee between the hours of 6 p.m. and 6 a.m., including any nightwork performed by an employee as part of his/her regularly scheduled administrative workweek.
K. Nonexempt Employee means an employee who is subject to the overtime provisions of the Fair Labor Standards Act (FLSA).
L. Postshift Activity is a concluding activity that an employee performs after the completion of his/her principal activities.
M. Premium Pay means additional pay authorized for overtime, night, holiday, or Sunday work and for standby duty, AUO work, or availability duty.
N. Preshift Activity is a preparatory activity that an employee performs prior to the commencement of his/her principal activities.
O. Principal Activities are the activities (i.e., duties and responsibilities) that an employee is hired to perform during a regularly scheduled administrative workweek, including any period of regular overtime work or authorized period of irregular or occasional overtime work.
P. Rate of Basic Pay for premium pay purposes means the rate of pay fixed by law or administrative action for the position held by an employee, including any applicable interim geographic adjustment or special pay adjustment for law enforcement officers or locality-based comparability payment before any deductions (e.g., withholdings for Federal and State taxes or employee benefits) and exclusive of additional pay of any other kind (e.g., overtime, Sunday pay, or night differential).
Q. Regularly Scheduled Administrative Workweek for a full-time employee means the period within an administrative workweek the employee is regularly scheduled to work. For a part-time employee, it means the officially prescribed days and hours within an administrative workweek the employee is regularly scheduled to work.
R. Regularly Scheduled Work means work that is scheduled in advance of an administrative workweek, excluding any work to which availability pay applies.
S. Regular Overtime Work means overtime work that is part of an employee's regularly scheduled administrative workweek. For example, the need for regular overtime work may occur when an office has a backlog of work or a project with a due date. Because the supervisor's advance knowledge of the deadline has allowed him/her to assess staff resources and determine that each employee needs to perform at least 2 hours of overtime work on Monday and Wednesday and 4 hours on Saturday for 1 month in order to meet this requirement, he/she must schedule the hours of overtime to be worked by each employee prior to the beginning of the administrative workweek in which the overtime is to be worked.
T. Suffered or Permitted Work means any work performed by a nonexempt employee for the benefit of an agency outside of his/her tour of duty, whether requested or not, when the employee's supervisor knows or has reason to believe that the work is being performed and has an opportunity to prevent the work from being performed. When the supervisor is aware that an employee is performing work outside of his/her scheduled tour of duty and does nothing to prevent it from occurring, he/she has suffered or permitted the employee to work. As a result, the employee is entitled to overtime compensation since suffered or permitted work is hours of work under the FLSA.
U. Sunday Work means nonovertime work performed by an employee during a regularly scheduled daily tour of duty when any part of this daily tour of duty falls on a Sunday.
V. Tour of Duty is the hours of a day (a daily tour of duty) and the days of an administrative week (a weekly tour of duty) that constitute an employee's regularly scheduled administrative workweek. Under a flexible schedule, it means the limits set by a supervisor within which an employee must complete his/her basic work requirement. Under a compressed work schedule or other fixed schedule, tour of duty is synonymous with the basic work requirement.
W. Willful as defined in Black's Law Dictionary
often denotes an act which is intentional, or knowing, or voluntary, as
distinguished from accidental. A willful act may be described as one done
intentionally, knowingly, and purposely, without justifiable excuse, as
distinguished from an act done carelessly, thoughtlessly, heedlessly, or
inadvertently. A willful act may be premeditated; done with indifference to the
natural consequences, unlawful, without legal justification, and with a
careless disregard of the law.
A. The Director/Deputy Director approves overtime for subordinate staff members and authorizes the payment of overtime compensation when an employee at any grade level is expected to work more than 600 hours of nonemergency overtime in a calendar year. Assistant Directors and Regional Directors have authority to approve the payment of regularly scheduled, irregular or occasional, and emergency overtime work; holiday pay; and standby duty on a case-by-case basis within their respective organizations. At their discretion, these officials may designate subordinate supervisors to execute part or all of this approval responsibility provided the designation is made in writing and that no designated official approves his/her own overtime.
B. Requests for authorization to pay compensation for nonemergency overtime work in excess of 600 hours in a calendar year are submitted through the servicing personnel office to DPM. The justification for each request must identify the employee by name, title, grade, series, and work location; explain the reason for the overtime; and state the number of overtime hours the employee has already worked and the number of hours he/she is expected to work by the end of the calendar year. The transmittal is signed by the appropriate Regional or Assistant Director.
C. A copy of each designation to approve overtime or any other form of premium pay must be forwarded to the payroll coordinator in the Washington Office or the Region, as appropriate, so that these individuals are aware of any change in approval authority.
D. The designation of subordinate supervisors as approving officials does not absolve Assistant Directors and Regional Directors of their overall responsibility to ensure the propriety of any exercise of this responsibility. All approving officials must ensure that overtime and other forms of premium pay are approved in accordance with Service and Departmental policy and regulatory requirements. Inherent responsibility requires these officials to:
(1) Be fully aware of the reasons precipitating the expenditure of funds for overtime and the impact of this cost on the budget and/or program resources;
(2) Be knowledgeable of current work demands that necessitate overtime work;
(3) Ensure that the decision to approve overtime and other forms of premium pay is reached following a determination that there are no alternatives, other than premium pay, for accomplishing the work and that the type of premium pay approved is the most cost-effective;
(4) Ensure that the forms necessary for requesting overtime or other forms of premium pay have been completed prior to the time the overtime work is scheduled to be worked or within 5 work days after the overtime has been worked in emergency situations; and
(5) Review or direct the review of premium pay expenditures to determine if costs can be reduced or eliminated.
7.8 Overtime.
A. General.
(1) Overtime compensation is authorized and paid under 5 U.S.C. 5542 of the United States Code for an exempt employee and under the FLSA for a nonexempt employee. Under either authority, payment may be made to any full-time, part-time, or intermittent employee for the performance of overtime work. A nonexempt employee who receives overtime payments only under FLSA provisions continues to be covered under the premium pay provisions of 5 U.S.C. 5545 that authorizes the payment of premium pay for nightwork, standby duty, AUO, and availability duty and 5 U.S.C. 5546 that authorizes Sunday and holiday pay.
(2) All time spent by a nonexempt employee in the performance of activities that benefit and are under the control or direction of the Service are hours of work under the FLSA. When performed in accordance with guidance provided in 7.9, 7.10, 7.11 and 7.12, below; such time includes the time an employee is required to be on duty during regular and nonduty hours, time during which an employee is suffered or permitted to work, time in a travel status, and waiting or idle time.
(3) Overtime work (i.e., additional time spent in the performance of principal activities) may be performed on a regular, irregular, occasional, or call-back basis. Unless the overtime work is regularly scheduled (i.e., included in the regularly scheduled workweek), it must be officially ordered or approved in writing by a designated approving official. Because an employee's entitlement to premium pay may be based upon regularly scheduled work, the employee's actual work requirement must be reflected in an employee's regularly scheduled administrative workweek. When a supervisor knows before the beginning of an employee's regularly scheduled administrative workweek that existing or anticipated work demands will require the employee to work overtime or other premium pay during that administrative workweek, the specific hours and days must be scheduled as part of the employee's work requirement. A supervisor's failure to schedule a regularly scheduled administrative workweek that reflects an employee's actual work requirement may entitle the employee to premium pay when a determination is made that the supervisor:
(a) Had knowledge of the specific days and hours of the work requirement in advance of the administrative workweek; and
(b) Had the opportunity to determine which employee had to be scheduled or rescheduled to meet the specific days and hours of that work requirement.
(4) An employee is compensated for every minute of regular overtime work, and such compensation may continue to be paid while the employee is in a travel status or is absent on compensatory time off or for other reasons authorized by law (e.g., jury duty).
(5) Irregular or occasional overtime work may be credited or paid in 15-minute increments. Odd minutes are rounded up or down to the nearest full fraction (i.e., 15-minute increment) of an hour.
(6) The time an employee spends in the performance of preshift or postshift activities or, in the case of a nonexempt employee, preparatory or concluding activities is also considered overtime work under the conditions specified in 7.10, below.
B. Exempt Employees. An exempt employee is entitled to compensation (i.e., monetary or compensatory time off) for officially ordered or approved overtime work when he/she performs:
(1) Hours of work in excess of 8 hours in a day or 40 hours in an administrative workweek for an employee on a regular tour of duty; (Hours of work in excess of 8 in a day are not included in computing hours of work in excess of 40 hours in an administrative workweek.)
(2) Hours of work in excess of 40 hours in an administrative workweek for an employee on a first 40-hour tour of duty whose basic pay exceeds the minimum rate for GS-10 (including any applicable interim geographic adjustment or locality-based comparability payment and any applicable special rate) or who is engaged in professional or technical engineering or scientific activities;
(3) Hours of work in excess of the daily scheduled tour of duty or the biweekly work requirement for an employee on a flexible or compressed work schedule; or
(4) Hours of work (for a criminal investigator) scheduled in advance of the administrative workweek that are in excess of 10 hours on a day containing hours that are part of the investigator's basic 40-hour workweek or on a day not containing hours that are part of the basic 40-hour workweek. Except as provided herein, all other overtime work shall be compensated by availability pay.
C. Nonexempt Employees.
(1) Under the FLSA, hours of work in excess of 8 hours in a day and in excess of a 40-hour weekly or other appropriate work period (e.g., the 80-hour biweekly standard for an employee on flexible or compressed work schedule) are deemed overtime hours. However, hours of work in excess of 8 in a day may not be counted toward hours in excess of the applicable overtime standard for the week or other appropriate work period. (Refer to 7.8C(5), below, for the weekly overtime standards.)
(2) The daily standard includes as hours of work all work performed by a nonexempt employee that is considered overtime under title 5, including officially ordered and approved overtime, call-back overtime, and time spent in a travel status away from the official duty station when the travel time falls within the days and hours of an employee's regularly scheduled workweek (including overtime hours) and the travel involves the conditions specified in 7.11B(1)(a) through 7.11B(1)(d), below. Regardless of the total number of hours of work in a workweek (whether 40 hours or less), overtime work for a nonexempt employee subject to the FLSA is:
(a) Hours of work in excess of 8 hours in a day for an employee on a regular tour of duty who is not receiving annual premium pay for AUO or standby duty;
(b) Hours of work in excess of 8 in a day for regularly scheduled overtime work for an employee receiving AUO and for irregular or occasional hours of work (outside regularly scheduled tour of duty) for an employee receiving pay for standby duty.
(c) Hours of work in excess of the specified hours in a day that constitute an employee's compressed schedule. (Only those hours in excess of the compressed schedule will be considered overtime hours for purposes of exceeding the biweekly work requirement.);
(d) Hours of work in excess of 8 in a day, the weekly overtime standard, or the biweekly work requirement that are officially ordered in advance for an employee on a flexible work schedule. (When an employee on a flexible work schedule voluntarily works additional hours, the additional hours may not be used to compute hours of work in excess of 8 in a day, the overtime standard for the work, or the biweekly work requirement.)
(e) Hours of work in excess of the weekly overtime standard for an employee engaged in fire protection and law enforcement activities.
(3) Hours of work in excess of 8 hours in a day for an employee on a first-40 tour of duty who is engaged in professional or technical engineering or scientific activities and for an employee whose rate of basic pay exceeds GS-10, step 1, are not overtime hours and may not be used to determine an employee's eligibility for overtime compensation on the basis of hours of work in excess of 8 hours in a day.
(4) The weekly overtime standard includes hours of work for which an employee receives annual premium pay for standby duty or AUO, is suffered or permitted to work, and travels away from the official duty station to a controllable event during corresponding hours. These hours are not subject to the 8-hour daily overtime standard.
(5) The weekly overtime standards are currently 53 hours for an employee engaged in fire protection activities, 42 3/4 hours for an employee engaged in law enforcement activities, and 40 hours for any other nonexempt employee except one on a flexible or compressed work schedule. An employee on one of these work schedules has an 80-hour biweekly overtime standard.
7.9 Hours of Work Under the FLSA. The following provides activities and events that are hours of work under the FLSA. Other examples of work situations constituting hours of work are provided in 7.10 , 7.11 and 7.12, below.
A. Any work or activity performed during regular working hours (i.e., the days and hours of an employee's regularly scheduled administrative workweek) and hours in a paid nonwork status (e.g., annual, sick, court, military, and funeral leave; excused absence, absence on a holiday with pay, compensatory time off, and continuation of pay).
B. The time spent in training during regular working hours and training that occurs outside regular working hours under the following conditions:
(1) The employee is directed by his/her supervisor to participate in training that will improve his/her performance of the duties and responsibilities of his/her current position and that will adversely affect his/her performance or continued retention in his/her current position if the training is not taken. Training in this regard does not include upward mobility or developmental training that would provide the knowledge or skills needed for a subsequent position. In addition, the time spent within the supervisor's allowance of preparatory time for attendance at this training is hours of work when it occurs during or outside regular working hours. The supervisor establishes the allowance of preparatory time by reviewing course materials and course requirements and informs the employee of the allowance prior to the commencement of training. Any additional time spent in preparing for training outside of the established allowance is not hours of work; or
(2) The employee performs productive work during a period of apprenticeship or other entry level training, or internship or other career related work study training, or training under the Veterans Readjustment Act outside regular working hours.
(3) The time spent attending a lecture, meeting, or conference is hours of work during and outside regular working hours when the employee is directed to attend the event or performs work for the benefit of the Service during such attendance.
C. Any time an employee spends in adjusting a grievance or another appealable action filed in his/her behalf with Service officials during regular working hours.
D. Any time a union representative is granted official time to perform representational functions during working hours and during periods of regularly scheduled overtime or during periods of irregular or unscheduled overtime only when an event incident to representational functions arises and must be dealt with during this period.
E. The time spent receiving medical attention when:
(1) An employee spends time waiting for and receiving medical attention on a workday after he/she reported for duty and subsequently became ill or was injured; the need for medical attention occurs during the employee's regular working hours; and the medical attention is provided on the agency's premises or, upon supervisory or other direction, at a medical facility away from the premises; or
(2) An employee spends time taking a physical examination that is required by the Service as a condition of the employee's continued employment.
F. An employee spends time working during or outside regular working hours for public or charitable purposes when officially requested to do so, or under the direction or control of the Service. (Voluntary time spent in such activities outside of an employee's regular working hours is not hours of work.)
7.10 Time Spent in Performing Preshift/Postshift (Preparatory/ Concluding) Activities. Preshift/postshift activities pertain to exempt employees and preparatory/concluding activities pertain to nonexempt employees. For purposes of this section, the terms "preshift" and "postshift" are synonymous with "preparatory" and "concluding."
A. To be credited as hours of work, the amount of time spent in performing preshift and/or postshift activities must total more than 10 minutes for a daily tour of duty. While these activities are not principal activities, they must be closely related to, and indispensable to the performance of, an employee's principal activities. Determinations in this regard are made by the Secretary of the Interior.
B. The Secretary of the Interior determines if preshift and/or postshift activities are closely related to, and indispensable to the performance of an employee's principal activities. Requests for determinations regarding preshift or postshift activities are signed by Regional Directors or Assistant Directors, as appropriate, and are submitted through the servicing personnel office to the Division of Personnel Management (DPM) in the Washington Office. The request must be in memorandum format and must identify the position and include a copy of the position description. In addition, the request must provide information that specifically details the reason the position requires preshift or postshift activities, shows the relationship of preshift or postshift activities to the employee's principal activities, indicates the reason why the activities are indispensable to the performance of the principal activities of the position, and specifies the amount of time needed to perform the activities.
C. When preshift or postshift activities total more than 10 minutes, this time is credited as hours worked and an employee is compensated for all of the time (including the 10 minutes) spent in performing these activities.
D. An employee's supervisor must schedule the time that has been determined necessary for performing preshift or postshift activities and the employee may not receive additional compensation if the scheduled time is exceeded.
E. Preshift or postshift activities that are not closely related to the principal activity are preliminary or postliminary activities that are not considered hours of work nor compensable as such.
F. Distinctions as to what constitutes a principal activity, what constitutes a preshift or postshift activity, or what constitutes a preliminary or postliminary activity may be very narrow and often must be determined on a case-by-case basis by relating that activity to the activities the employee was hired to perform during scheduled working hours. For example, principal activities for a truck driver would include driving the truck before scheduled duty hours, loading material onto the truck, and fueling the truck. Preshift and postshift activities would include securing and returning Government-owned equipment to designated control points. Preliminary or postliminary activities include walking, riding, or travel to and from the actual place of performance of the principal activity within the place of employment even though such walking, riding, or travel occurs on or off the employee's worksite or before or after the employee has checked in or out. Waiting in line to check in or out, checking an assignment board, unlocking doors, and turning on lights and heat are also examples of preliminary or postliminary activities.
7.11 Overtime While in a Travel Status. All of the time spent by an exempt or nonexempt employee on official travel during regular working hours and on regularly scheduled workdays is considered hours of work. Normal commuting time between an employee's residence and duty station is not compensable overtime. When the time an exempt or nonexempt employee spends in a travel status meets the conditions in 7.11A or 7.11B, below, such time is considered employment for which overtime may be paid or for which compensatory time off may be appropriately granted. For purposes of overtime payment under title 5 of United States Code and the FLSA, official duty station has the same meaning as that provided in the Federal Travel Regulations, and the mileage radius for defining the limits of the official duty station is 50 miles. Only one official duty station can be used to determine an employee's FLSA entitlement to compensation for travel time.
A. Travel Outside of Duty Hours Within the Limits of the Official Duty Station.
(1) Exempt Employees. An exempt employee is not authorized overtime compensation or compensatory time off in lieu of overtime pay when the travel is within the confines of his/her official duty station.
(2) Nonexempt Employees. The time spent in authorized travel is considered hours of work under the FLSA based upon the kind of travel and the conditions under which the travel occurs. Determinations as to whether or not the travel is considered hours of work are based primarily on instances of home to work/work to home travel or travel within the limits of an employee's official duty station. In addition, the time an employee spends traveling within the limits of the official duty station before or after regular working hours is hours of work when such travel is directly related to the performance of a specific job assignment and serves to extend the employee's regular tour of duty. Refer to Exhibit 1 for specific examples of home to work (work to home) travel and to Exhibit 2 for travel within the limits of the official duty station that are hours of work under the FLSA.
B. Travel Outside of Duty Hours Away From the Official Duty Station.
(1) Exempt Employees. Normally, there are few occasions in the Service when an exempt employee is eligible for overtime compensation during nonduty hours while in a travel status away from the official duty station. When travel is not compensable, every effort should be made to minimize travel by an employee during nonduty hours. Consideration should be given to scheduling events in the middle of the week so that an employee may travel to and from the event during duty hours. On occasion, there may be times when an employee could miss the Monday morning opening session of an event to avoid travel on Sunday. When this is not possible and an employee must undergo noncompensable travel, the employee's supervisor must document the reasons for ordering travel during nonduty hours for the record and provide a copy to the employee upon request. Travel outside of duty hours away from the official duty station is compensable in the form of overtime pay or compensatory time off, as appropriate, if the travel is authorized and an employee travels under one of the following qualifying conditions.
(a) The performance of actual work. Travel involving the performance of work while traveling generally refers to work that can be performed only while traveling (e.g., operating a fish hatchery distribution truck or conducting a mobile surveillance).
(b) Is incident to travel that involves the performance of work. Travel of this nature occurs when an employee travels to a destination to board a means of transportation upon which he/she will be performing work while traveling or when an employee performed work while traveling and is returning to his/her official duty station (e.g., a truck driver deadheading or driving without freight or passengers to a designated point to pick up a truck to be driven to another destination).
(c) Is carried out under such arduous and unusual conditions that travel is inseparable from work. Travel under arduous conditions includes travel over unusually adverse terrain; during severe weather conditions; or to remote, barely accessible facilities by foot, horseback, or truck. Travel by automobile over a hard-surfaced road when no unusually adverse weather conditions are encountered or travel by rail does not normally constitute travel under arduous conditions. In addition, the time of travel, whether day or night, or the distance traveled does not ordinarily determine if travel is performed under arduous conditions.
(d) Results from an event that cannot be scheduled or controlled administratively. This condition pertains to the ability of the Service (or the Government) to control the event that necessitates an employee's travel. Generally, official travel by Service employees involves events that are not compensable as overtime. Typical controllable events include normal office travel to and from conferences, meetings, Regional offices, and field installations. It also includes attendance at training sessions sponsored by the Service, the Department, other Federal agencies, or private organizations when such training is conducted solely for the benefit of the Federal Government. In order for travel to be compensable as hours of work, the travel away from the official station must result from an event that is scheduled or controlled by an individual or organization outside the Federal Government (e.g., university, college, or other training facility open to the general public) or from unforeseen circumstances (e.g., a breakdown or malfunctioning of equipment or an emergency work-related situation). When travel involves an event that cannot be scheduled or controlled administratively, travel to and from the event is compensable as hours of work. Supervisors are encouraged to contact their servicing personnel office for an opinion before recommending approval of overtime pay or compensatory time off for this type of travel situation.
(2) Nonexempt Employees. These employees may receive overtime compensation when travel occurs under one of the conditions specified in 7.11B(1), above. In addition, the guidance provided below and in Exhibits 3, 4, and 5 may be used to determine if certain travel constitutes hours of work.
(a) The time spent traveling outside of duty hours away from the official duty station overnight or longer is considered compensable hours of work when an employee performs work while traveling (e.g., drives a vehicle, pilots a boat, or assists in the operation of a conveyance). Bona fide meal periods (i.e., 30 minutes), periods when an employee is relieved from duty, and sleep periods, as appropriate, are deducted from hours worked.
(b) When an employee is required to be on duty (traveling continuously) for 24 hours or more, authorized sleeping periods of not more than 8 hours may be deducted from the hours worked, provided adequate sleeping facilities are furnished and the employee can usually enjoy an uninterrupted period of sleep. However, if the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the employee cannot get at least 5 hours of sleep during the sleeping period, the entire period is hours of work.
(c) When an employee is authorized to travel during nonduty hours as a passenger to a temporary duty station outside the limits of the official duty station and such travel requires the employee to remain overnight (i.e., the employee must secure lodgings at the temporary duty station for one night or more), the time spent traveling during hours that correspond to his/her regular working hours on regular working days is considered hours of work. Bona fide meal periods are deducted from hours worked.
(d) While travel as a passenger to and from a temporary duty station outside the limits of the official duty station during the same day is viewed as a part of an employee's principal duties for that particular day, the time spent in authorized travel as a passenger (by common carrier or by automobile) during the one-day assignment is considered working time. Bona fide meal periods are deducted from hours worked, and normal home to work (work to home) travel and the time spent waiting at a common carrier terminal in excess of the normal waiting time occurring outside of duty hours are not hours of work. Waiting time at a common carrier terminal from the designated predeparture time (e.g., 30 minutes prior to the scheduled departure) until the carrier's scheduled departure time is considered normal waiting time and is counted as hours of work. Normal waiting time also includes the time an employee spends at an intervening common carrier terminal when the employee interrupts travel on one carrier to wait for a connecting common carrier to continue traveling to the temporary duty station.
(e) When an employee is offered one mode of transportation by the Service and is permitted to use an alternative mode of transportation, or when an employee travels at a time other than that selected by the Service, the employee must be credited with the lesser of:
(i) That portion of the actual travel time that is considered working time in accordance with guidance in this chapter; or
(ii) That portion of the estimated travel time that would have been considered working time had the employee used the mode of offered transportation or traveled at the selected time.
(f) When an employee's travel involves two or more time zones, the time zone from the point of first departure for the workday must be used to determine whether the employee performed the travel during regular working hours or during corresponding hours on nonwork days.
(g) As in the case of travel from home to a permanent duty station, normal home to work travel for an employee assigned to a temporary duty station is not hours of work. During the period of temporary assignment, the temporary lodgings are considered an employee's residence. In addition, when an employee, for personal reasons, does not use temporary lodgings provided at a temporary duty station and commutes daily from his/her home or from temporary lodgings other than those specified at the temporary duty station, the commuting time is not hours of work under the FLSA. However, commuting time in excess of the normal home to work travel to the temporary duty station on the first day of the temporary assignment and from the temporary duty station to his/her home on the last day of the temporary duty assignment is considered hours worked when it meets any of the conditions in 7.11B(2)(a) through 7.11B(2)(d), above.
(h) When an employee drives himself/herself in a passenger vehicle directly from his/her home to a temporary duty station outside of regular working hours and/or outside corresponding hours on a nonwork day, only the time spent driving that is in excess of the normal home to work travel is hours of work.
(i) When an employee drives from his/her home directly to temporary lodgings at the temporary duty station (or between lodgings at one temporary duty station and another temporary duty station), this time is also considered hours of work.
7.12 Sleep Time and Meal Periods For Nonexempt Employees Engaged in Law Enforcement and Fire Protection Activities.
A. Sleep Time.
(1) Sleep time is not considered hours of work if:
(a) The tour of duty is 24 hours or more; and
(b) There are adequate facilities during such time that will allow the employee to enjoy at least 5 hours of uninterrupted sleep.
(2) Sleep time for an employee who is engaged in law enforcement or fire protection activities and who receives annual premium pay for standby duty is appropriately excluded only from tours of duty of more than 24 hours when the conditions in A(1)(b) apply.
(3) Up to 8 hours of sleep time may be deducted from each 24-hour shift for sleep and meal periods may be deducted as hours of work for an employee engaged in fire protection activities who performs standby duty but does not receive annual premium pay when the conditions in A(1)(b) apply.
(4) If sleep time is interrupted by a call to duty, the time spent on duty is considered hours of work.
B. Meal Periods. Bona fide meal periods are not considered hours of work except for an employee engaged in fire protection activities who performs standby duty but who does not receive annual premium pay.
7.13 Call-back Overtime. Call-back overtime is irregular or occasional overtime work performed by an exempt or nonexempt employee on a day when no work is scheduled or when the employee has completed his/her regular tour of duty and is required to return to the duty station to perform additional work. The need for call-back overtime may be caused by an emergency situation (e.g., flood, fire, power failure, or mechanical failure) or by any similar situation of an imperative nature. An employee is entitled to a minimum of 2 hours overtime compensation for each instance of call-back overtime work even though the duty may be less than 2 hours in duration. The provision for a minimum of 2 hours of compensation for call-back overtime does not apply when an early reporting merges and continues into an employee's regular tour of duty or when an employee works irregular or occasional overtime immediately following the completion of a regular tour of duty.
7.14 Computation of FLSA Overtime Hours. The total number of overtime hours under the FLSA is computed based upon the following and information provided in Exhibit 6, Decision Logic Table for Computing Overtime Hours Under the Fair Labor Standards Act.
A. Subtract the daily overtime hours from the total number of hours of work for the applicable work period (e.g., week);
B. Subtract the applicable FLSA overtime standard from the result of step A; and
C. Add daily overtime hours to the result of step B.
D. If the result of step B is less than 0, set it to 0.
7.15 Overtime Pay. The rate of overtime pay is determined as follows:
A. Exempt Employees.
(1) The hourly overtime rate is one and one-half times the basic rate of pay for an employee whose basic rate of pay does not exceed GS-10, step 1 (including any applicable interim geographic adjustment, special rate of pay or special pay adjustment for law enforcement officers, a locality-based comparability payment, and any applicable special rate of pay); and
(2) The hourly overtime rate is one and one-half times the hourly rate for GS-10, step 1 (including applicable payments in 7.15A(1), above) for an employee whose basic rate of pay exceeds GS-10, step 1 (including applicable payments in 7.15A(1), above).
(3) The applicable overtime rate as indicated in 7.15A(1) or 7.15A(2), above is paid for overtime work performed on a Sunday or holiday.
B. Nonexempt Employees.
(1) Employees Other Than Those Engaged in Fire Protection or Law Enforcement Activities.
(a) A nonexempt employee is compensated for all hours of work in excess of 8 in a day or 40 in a workweek, including overtime work on Sunday or a holiday, at a rate equal to one and one-half times the employee's hourly regular rate of pay. An employee's hourly regular rate is computed by dividing the total remuneration paid to the employee in the workweek by the total number of hours of work in the workweek for which such compensation was paid.
(b) Under the weekly or other appropriate work standard, a nonexempt employee is entitled to the straight time rate of pay times all overtime hours worked plus one-half times his/her hourly regular rate of pay times all overtime hours worked. The straight time rate of pay is equal to the employee's rate of pay exclusive of any premiums or differentials except for annual premium pay for standby duty or AUO and interim geographic adjustments. For an employee authorized annual premium pay, the straight time rate is equal to basic pay plus annual premium pay divided by the hours for which the basic pay plus annual premium pay are intended.
(2) Employees Engaged in Fire Protection or Law Enforcement Activities. The overtime for an employee engaged in fire protection or law enforcement activities is paid at a rate equal to one and one-half times the employee's hourly regular rate of pay for those hours of his/her tour of duty that exceed the applicable overtime standard (see 7.8C(5), above) for a work period consisting of 7 to 28 days or which are in excess of 40 hours in a workweek for an employee who does not receive compensation for AUO or standby duty. The tour of duty of an employee engaged in these activities includes all time the employee is on duty, including meal and sleep periods, except as otherwise provided in 7.12, above.
7.16 Overtime Certification and Documentation. Generally, regular and irregular or occasional overtime is authorized in writing in advance of the time it is worked on Form 3-136, Overtime/Holiday Pay Authorization (Exhibit 7). In emergency situations that preclude advance written authorization and that are likely to warrant overtime approval after the fact, a verbal authorization may be obtained for purposes of responding to the immediate situation. If a verbal authorization is not possible and the need for overtime is a bona fide emergency situation of a critical nature, the overtime should be worked pending subsequent authorization. In all emergency situations that preclude advance approval, written authorization that is properly documented on Form 3-136 must be submitted to the designated approving official within 5 working days. The procedures outlined below will be used to ensure the propriety of overtime approval and payments and for purposes of internal control.
A. Form 3-136 is used to authorize and approve the payment of compensation for overtime and holiday work. For purposes of monitoring overtime approvals and facilitating the gathering of information related thereto, each initiating office will establish an internal control system for Form 3-136. To ensure Servicewide uniformity, the control number will include the current fiscal year, the organizational code of the initiating office, and a sequence number. For example, each initiating office would number the first form 95-12345-1, the second 95-12345-2 and the third 95-12345-3. This number is typed in the upper left corner of the form.
B. The date of the overtime authorization and the control number for all instances of overtime or compensatory time off is entered in the "Remarks" column of the T&A for the pay period in which the overtime occurred.
C. No overtime or compensatory time off is documented on the time and attendance report (T&A) unless the timekeeper has received a certified authorization for overtime work, Form 3-136, from the employee's supervisor.
D. Form 3-136 must be attached to the T&A when it is given to the supervisor for certification.
E. Supervisors will certify the payment of overtime or compensatory time off on the T&A only for the hours authorized and worked (unless authorization is for regular overtime work).
F. The T&A may not be altered after it has been certified by the supervisor or his/her designee without proper authorization from the supervisor or his/her designee. When authorized changes are made by the timekeeper, the supervisor or his/her designee must recertify the T&A by initialing below his/her previous certification.
G. Timekeepers are not authorized to certify T&As. This is the responsibility of a supervisor or acting designee. Certification responsibility may only be assigned to someone who is serving or acting in a supervisory capacity.
H. Following approval, Form 3-136 is maintained in the initiating office for reference and accounting purposes.
7.17 FLSA Overtime Entitlement for Employees on Temporary Assignment in Emergency Situations.
A. When a determination is made regarding the existence of an emergency situation that threatens the life or safety of people, serious damage to property, or serious disruption to the operations of an activity, appropriate authority must determine on a weekly basis the FLSA exemption status of any qualified employee who must be temporarily assigned to perform emergency duties. Regardless of the grade level, an employee shall be nonexempt for any workweek in which he/she performs more than 20 percent nonexempt work. Any exempt employee who is declared nonexempt by application of the 20 percent tolerance criterion is entitled to have hours of overtime work computed under FLSA provisions. Emergency situations include oil spills and range and forest fires.
B. Because there is a continuing need in emergency situations to detail qualified exempt employees to specialized positions where they are likely to perform nonexempt work, the treatment of the overtime entitlement for these employees will be in accordance with FLSA provisions. Consequently, whenever possible, an employee who permanently occupies an exempt position should be assigned an exempt position or exempt duties. In cases where there is no alternative to assigning an exempt employee to a nonexempt position or duties, any employee who is determined to be nonexempt must be paid overtime as provided under the FLSA or granted compensatory time off, as appropriate. Such determinations will be made on a case-by-case basis by the servicing personnel office when a request is submitted to temporarily change the FLSA exemption status of an exempt employee.
C. Emergency situations continually dictate the need to detail employees to fire positions or other specialized positions for which they qualify. Consequently, positions essential to the suppression of wildland fires have been identified and designated as exempt or nonexempt based upon the type of fire incident as shown in Exhibit 8, General Exempt/Nonexempt Positions. The FLSA exemption status has been determined for fire positions falling under Types I, II, and IV incident fires. A like determination could not be made for fire positions subject to Type III fire incidents because all variances in this type fire incident could not be eliminated. Therefore, to ensure proper payment, servicing personnel will have to determine the FLSA exemption status of employees involved in Type III fire incidents on a case-by-case basis when responding to a request to change an employee's FLSA exemption status.
D. The following procedures will be used when an exempt employee participating in an emergency situation exceeds the 20 percent tolerance for nonexempt work in a workweek.
(1) Complete Form 3-2158, Documentation of Change in FLSA Exemption Status (Exhibit 9), to document the dates and events precipitating a retroactive or prospective change (i.e., from exempt to nonexempt) in an employee's exemption status and forward the form by transmittal memorandum to the servicing personnel office. This form must be completed and properly certified in the manner prescribed below before forwarding to the servicing personnel office. The certification(s) on the form is confirmation that the effective date of the FLSA exemption status change to or from nonexempt has been verified, is consistent with Service policy and regulatory requirements, and is supported by documentation that is accessible to the servicing personnel office upon request. The effective date of a change in an employee's FLSA exemption status to nonexempt must begin on a Sunday and must end on a Saturday.
(2) Form 3-2158 must be completed for each pay period the exempt employee is determined to be nonexempt for one or both weeks of the pay period and must be certified by the employee's immediate supervisor and, if applicable, by the individual who supervised him/her during the period of temporary assignment to the emergency. When an employee's immediate supervisor does not supervise him/her while on temporary assignment, the supervisor's certification confirms that the employee was officially absent from the permanent duty station for the specified period for purposes of participating in the identified emergency situation.
(3) When properly completed, Form 3-2158 should provide enough information to enable the servicing personnel office to make a determination concerning the FLSA exemption status of the employee for the specified period. However, servicing personnel offices may request additional information from supervisors who are required to maintain records that provide information about any emergency that necessitates a change in an employee's FLSA exemption status and from the employee for whom a change is requested. Such records must include a copy of the Emergency Fire Fighting Time Report (as appropriate) and any information that documents the nature and duration of the emergency and fully supports a change in an exempt employee's FLSA exemption status, and a properly certified copy of Form 3-136.
(4) When received in the servicing personnel office, Form 3-2158 will be reviewed for conformity and used as authorization to generate an SF-50, Notification of Personnel Action, as required by OPM's Guide to Processing Personnel Actions (Formerly FPM Supplement 296-33), to effect a change in an employee's FLSA exemption status. The SF-50 will show 5 U.S.C. 552a(e)(5) and 5 CFR 551.209(f) as the legal authorities for effecting the action.
(5) Any pay actions (e.g., promotions, within-grade increases, or pay adjustments) that occur during the period covered by the change should be considered in order to avoid an incorrect payment to the employee.
(6) A copy of the SF-50 and Form 3-2158 is filed on the right side of the employee's Official Personnel Folder. In addition, a copy of the SF-50, with Form 3-2158 as an attachment, is sent to the submitting office by memorandum or by some other orderly process. The transmittal will instruct the timekeeper to initiate action to start the process that will enable PAY/PERS to identify and compensate the employee. No other action is required by the servicing personnel office.
(7) In order to properly calculate the FLSA overtime pay computations for exempt employees who exceed the 20 percent tolerance for performing nonexempt work, the employee's nonexempt status for each affected workweek must be identified. The approved copy of Form 3-2158 authorizes the timekeeper to identify each nonexempt workweek and to enter this information on the time and attendance report (T&A). The T&A should be annotated with one of the following 98A Hours Codes in the message area and properly certified before it is forwarded to PAY/PERS for processing:
(a) 98A Nonexempt 5CFR 551.209(f) Wk 1 only;
(b) 98A Nonexempt 5CFR 551.209(f) Wk 2 only; or
(c) 98A Nonexempt 5CFR 551.209(f) Wk 1 & Week 2.
(8) The annotating of Hours Code 98A on the T&A certifies FLSA entitlement and identifies nonexempt workweeks for PAY/PERS; the code does not generate pay. PAY/PERS will use this message to extract a listing of employees who require the manual calculation of their FLSA entitlement. When it is necessary to report additional premium hours that were previously reported on the T&A, the timekeeper must post such hours on a Supplemental Time and Attendance Report and enter the appropriate 98A message directly below the supervisor's certification before submitting the form to PAY/PERS for processing.
7.18 Compensatory Time Off. Except as provided in 7.18B(2) and 7.18B(3), below, compensatory time off is granted (upon request) in lieu of pay for officially ordered or approved irregular or occasional overtime work. The guidance in this section applies, as appropriate, to an exempt or nonexempt employee.
A. General.
(1) A full-time or part-time exempt or nonexempt employee may request and be granted compensatory time off from a tour of duty for officially ordered or approved irregular or occasional overtime work. Because an intermittent employee does not have a scheduled tour of duty, he/she may not be granted compensatory time off.
(2) An equal amount of compensatory time is credited for each hour, or fraction thereof, of overtime work. The minimum amount of overtime work that can be credited as compensatory time is 15 minutes.
(3) All compensatory time must be appropriately recorded on the T&A to ensure that the compensatory time is credited and used in accordance with governing regulations and Service policy.
B. Granting Compensatory Time.
(1) An exempt or nonexempt employee whose rate of basic pay is equal to or less than the maximum rate for GS-10 may request in writing that he/she be granted compensatory time off instead of payment for authorized overtime work. Requests for compensatory time are made on Form 3-136.
(2) An exempt employee whose rate of basic pay exceeds the maximum rate for GS-10, including any applicable interim geographic adjustment, locality-based comparability payment, or special salary rate, may be provided compensatory time off instead of payment for overtime work.
(3) An exempt or nonexempt employee on a flexible work schedule may request and be granted compensatory time off for regular overtime work as well as irregular or occasional overtime work under the authority governing flexible work schedules in 5 U.S.C. 6101.
(4) An exempt or nonexempt employee on a compressed work schedule may be granted compensatory time off only for irregular or occasional overtime work.
(5) Any eligible employee may request that compensatory time be granted in lieu of overtime pay on Form 3-136 at the time the overtime work is authorized or before the T&A is submitted to the Payroll Unit for processing. In either case, the request must be made before the end of the pay period in which the overtime is worked.
C. Use and Forfeiture of Compensatory Time.
(1) Compensatory time granted as a substitute for overtime pay should be taken within the same pay period or the pay period following that in which the overtime was worked. If work conditions preclude the use of compensatory as prescribed, an employee has 6 months from the date the compensatory time was earned to use accumulated compensatory time.
(2) An exempt employee who fails to use this time within the prescribed limit loses the right to compensatory time off or to overtime pay unless the failure is due to a work-related exigency beyond the employee's control. Examples of exigencies meeting this criterion include a staff resource shortage, a work-oriented emergency situation, the need to complete a high priority assignment, or any other work-related situation that management has determined requires immediate attention.
(3) An exempt employee who forfeits accumulated compensatory time due to an exigency of the service must be paid for the time credited to his/her account at the end of the 6-month period. All payments for compensatory time are made at overtime rates and are based upon the rates in effect at the time the overtime work was performed.
(4) An exempt employee's supervisor must request the payment of compensatory time that was forfeited due to an exigency of the service. The request for payment of forfeited compensatory time will be documented in a memorandum that details the cause and duration of the exigency, that identifies the exigency precluding the employee's use of the forfeited compensatory time within the prescribed time limit, and that is certified by the employee's supervisor. The memorandum must be forwarded through supervisory channels to the appropriate Assistant Director for an employee in the Washington Office or to the Regional Director or other designated official for a Regional or field employee for certification of concurrence. The Director/Deputy Director, Assistant Director, or Regional Director concurs for an employee in his/her immediate office. Following concurrence, the memorandum and amended T&As for the pay period in which the overtime was worked are submitted to the Payroll Unit.
(5) A nonexempt employee who does not request compensatory time off or who does not use requested compensatory time within the prescribed time limit, must be paid for the overtime work or the compensatory time at the overtime rate in effect for the work period in which it was earned.
D. Disposition of Compensatory Time Upon Separation or Transfer.
(1) Exempt Employee. An exempt employee who transfers to another agency or who is separated from Federal service will not be paid for accumulated, unused compensatory time; this time should be used prior to transfer or separation. If reasons beyond the control of the employee preclude the use of compensatory time prior to transfer or separation, overtime should be paid in accordance with 7.18C(2) through 7.18C(4), above.
(2) Nonexempt Employee. A nonexempt employee who transfers to another agency or who is separated from Federal service must be paid for all unused accumulated compensatory time at the time of transfer or separation in accordance with 7.18C(5), above.
E. Aggregate Rate of Pay Limitation. Because the entitlement to compensatory time off derives from officially ordered or approved overtime work, compensatory time for an exempt employee is subject to the maximum earnings limitations in 7.23, below. There is no maximum earnings limitation on compensatory time for a nonexempt employee.
7.19 Pay for Nightwork For Exempt or Nonexempt Employees.
A. A night differential of 10 percent of an employee's basic rate of pay may be paid in addition to the basic rate of pay to an employee who performs regularly scheduled work between the hours of 6 p.m. and 6 a.m. For employees stationed outside the United States, the Director/Deputy Director, Assistant Director, or Regional Director, as appropriate, may designate any time after 6 p.m. as the beginning or any time before 6 a.m. as the end of nightwork to reasonably correspond with the customary hours of business in the duty station locality.
B. A night differential may also be paid when an employee is temporarily assigned during his/her administrative workweek to a daily tour of duty that includes nonovertime nightwork.
C. An employee is paid a night differential for regularly scheduled nightwork when he/she is absent due to a holiday or other nonworkday or when he/she is in an official travel status.
D. The payment of a night differential continues during periods of paid leave only when the total amount of leave in a pay period, including both night and day hours, is less than 8 hours.
E. A night differential is paid in addition to overtime, Sunday, or holiday pay but is not included in the rate of basic pay used to compute those forms of premium pay.
7.20 Pay for Sunday Work For Exempt or Nonexempt Employees.
A. A full-time employee who is regularly scheduled to perform nonovertime work on a Sunday is entitled to his/her rate of basic pay and premium pay at a rate equal to 25 percent of his/her rate of basic pay for all hours of work that do not exceed 8 hours in a day for an employee on a regular tour of duty and the scheduled hours for an employee on a flexible or compressed work schedule.
B. When an employee on a regular tour of duty works more than 8 hours on a Sunday, hours in excess of this amount are paid as overtime hours. Overtime hours for an employee on a compressed tour of duty are the hours that exceed the daily hours the employee is scheduled to work.
C. An employee authorized Sunday pay is entitled to premium pay for each hour of Sunday work or for each hour while in a paid leave or excused absence status on Sunday.
D. Entitlement to Sunday premium pay also includes an employee who has a regularly scheduled tour of duty falling between midnight Saturday and midnight Sunday or who is scheduled to work two separate tours of duty, each of which begins or ends on a Sunday. Such an employee is entitled to premium pay for each entire tour of duty.
E. A part-time employee is not entitled to Sunday premium pay.
7.21 Pay for Holiday Work For Exempt or Nonexempt Employees.
A. An employee on a regular tour of duty who performs nonovertime work on a holiday or a designated holiday is entitled to pay at his/her rate of basic pay and premium pay at a rate equal to the rate of his/her rate of basic pay for all hours of work that are not in excess of 8 hours.
B. An employee on a compressed work schedule who performs nonovertime work on a holiday or a designated holiday is entitled to premium pay for assigned holiday work for all hours he/she is scheduled to work on the holiday or in lieu of day.
C. An employee who is assigned to duty on a holiday or designated holiday is entitled to pay for at least 2 hours of holiday work.
D. An employee who performs overtime work on a holiday is entitled to overtime pay for all hours worked.
7.22 Regularly Scheduled Standby Duty For Exempt Employees or Nonexempt Employees Other Than Those Engaged in Fire Protection or Law Enforcement Activities.
A. General. Annual premium pay for standby duty is authorized when an exempt or nonexempt employee occupies a position that regularly requires him/her to remain at, or within the confines of, the duty station longer than 40 hours per week and that requires a substantial portion of this additional time to consist of standby duty, rather than actual work. An employee at, or within the confines of, his/her duty station, is:
(1) At his/her regular duty station, or so close thereto, that he/she cannot use the time effectively for his/her own purposes;
(2) In quarters provided by the Service that are not ordinary living quarters and that are specifically provided for use by an employee required to stand by in readiness to perform actual work when the need arises or when called; or
(3) In his/her living quarters when such quarters have been designated as the employee's duty station and when the employee's whereabouts are narrowly limited and his/her activities are substantially restricted. During these periods, the employee is required to remain in his/her quarters to be ready to respond to a call for service. (When an employee is required to remain within a reasonable call-back radius, but is allowed to leave a telephone number or to carry an electronic device for purposes of being contacted or to make arrangements for another person to perform work arising during the on-call period, he/she is considered off duty and the time spent in an on-call status is not hours of work.)
B. Position Qualification. A position for which annual premium pay standby duty is authorized must meet all of the following conditions:
(1) The standby requirement must be definite and the employee must be officially required to remain at the worksite. The employee's presence at the worksite is not merely voluntary, desirable, the result of geographic isolation, or solely because the employee lives on the grounds;
(2) The hours in which the requirement for standby duty is operative must be included in the employee's official tour of duty, and the tour must be established on a regular and recurring basis. A seasonal requirement for standby duty must endure consecutively for at least 2 months of the year. If the requirement is intermittent throughout the year, it must cover an estimated total of six pay periods within the year. The standby requirement may not be of an occasional or irregular nature or for periods of the year that are less than those prescribed; and
(3) The requirement must be associated with the regularly assigned duties of the employee's position. It must be a continuation of the position's regular work that includes standby time, or a requirement to standby at the post of duty to perform regularly assigned duties if the need arises.
C. Approval of Standby Duty. The approval of a standby tour of duty is made on a case-by-case basis. A decision in this regard is made only after:
(1) There has been an evaluation of the position requirements, the
type of coverage needed, and the means of achieving the coverage and for
compensating an employee whose hours of duty exceed 40 hours in a workweek;
(2) Careful consideration has been given to the alternatives to premium pay provided in 7.5F, above, since they may represent a more efficient method for securing the essential level of coverage or protection and may achieve the same results at lower cost;
(3) A determination has been made based upon specific program requirements (e.g., fire protection, security, or unique and unpredictable situations) that the failure to institute a standby tour will place a program in jeopardy and that standby duty is the most feasible and cost effective alternative for accomplishing the work; and
(4) A comparative assessment of aggregate payment has been made to determine if the pay over a period appropriate to reflect the full cycle of the employee's duties (e.g., 1 year) and the full range of conditions in the position would be:
(a) More than the premium pay that would otherwise be payable for the hours of actual work customarily required in the position, excluding standby time during which the employee performs no work; and
(b) Less than the premium pay that would otherwise be payable for the hours of duty required in the position, including standby time during which the employee performs no work.
D. Determining Rate of Payment For Standby Duty. Compensation for standby duty is an appropriate percentage up to 25 percent of that part of an employee's basic rate of basic pay that does not exceed the minimum rate of basic pay for GS-10 (including any applicable interim geographic adjustment or locality-based comparability payment and any special rate of pay). For a position in which the employee has a basic workweek requiring the full-time performance of actual work and also requiring standby duty, the percentage rate is established based upon the number of days or hours in a week the employee is required to perform standby duty. The weekly days or hours of an employee's standby tour of duty may be the number the employee is regularly scheduled to work each week or those that have been averaged over a reasonable cycle (i.e., by projecting the employee's tour of duty over a period of 1 year or less, as appropriate). Percentage rates are determined based upon the following:
(1) 15 percent - 14 to 18 hours a week on regular workdays, or extending into a nonworkday in continuation of a period of duty within the basic workweek;
(2) 20 percent - 19 to 27 hours a week on regular workdays, or extending into a nonworkday in continuation of a period of duty within the basic workweek;
(3) 25 percent - 28 or more hours a week on regular workdays, or extending into a nonworkday in continuation of a period of duty within the basic workweek;
(4) 15 percent - 7 to 9 hours on one or more of an employee's regular weekly nonwork days;
(5) 20 percent - 10 to 13 hours on one or more of an employee's regular weekly nonwork days; or
(6) 25 percent - 14 or more hours on one or more of an employee's regular weekly nonwork days.
E. Sunday Work. An authorized percentage rate may be increased through the performance of Sunday work. The rate is increased 2 and 1/2 percent when the employee is required to work an average of 20 to 40 Sundays in a 1-year period or 5 percent for an average of 41 or more Sundays within the same period. The maximum percentage rate payable for standby duty, including the rate increased by Sunday work, is 25 percent. To determine the average number of Sundays an employee is required to work in a year, project the employee's tour of duty over a 2-year period and include as Sunday work any work that is scheduled to be performed on a Sunday. Thus, an employee is credited with working on a Sunday when his/her tour of duty begins on a Saturday and ends on a Sunday as well as when a tour begins on Sunday and ends on Monday. After a percentage rate has been established based on Sunday work, there is no need to verify periods of actual work on a Sunday or to require a refund or other adjustment deemed necessary from an employee who separates during the period covered by the percentage rate.
F. Limitation on Payment of Standby Duty. An employee receiving pay for standby duty may not receive additional compensation for regularly scheduled overtime and work at night and on holidays, but may receive pay for irregular or occasional overtime work authorized under 5 U.S.C. 5542. Also, premium pay for standby duty is not authorized for any employee receiving AUO or availability pay.
G. Submission and Approval of Requests for Standby Duty.
(1) Requests for standby duty that are originated by the Project Leader require concurrence by the appropriate Assistant Regional Director prior to approval by the Regional Director.
(2) An SF-52, Request for Personnel Action, is used to initiate or terminate pay for standby duty or to adjust a percentage rate. The signed SF-52 and completed Form 3-2097, Authorization for Standby Duty (Exhibit 10), are submitted to the servicing personnel office.
(3) When approval to institute a standby tour has been granted, the Project Leader must develop a formal schedule that reflects the official days and hours of an employee's tour of duty and display it in a prominent place in the office. In addition, the schedule may be used as a management tool to assist the Project Leader in overall program planning, in eliminating unauthorized or dual premium pay, in documenting excused absences from standby duty, and in scheduling the use of off-duty time. Schedules reflecting standby tours of duty are to be maintained by the Project Leader in an appropriate file for a period of 5 years.
(4) A formal schedule requires the employee to whom it applies to be on official duty at the days and hours specified unless the absence is excused or covered by some form of leave. An absence due to a holiday that falls within an employee's regular standby tour of duty is charged to the appropriate leave category.
H. Payment of Standby Duty. Pay for standby duty begins on the date the employee enters on duty in the authorized position and ceases on the date he/she is no longer subject to the conditions serving as the basis for the authorization. Payment may be based upon standby duty performed throughout a 12-month period, seasonally (at least 2 months), or intermittently (at intervals totalling at least 6 pay periods). The payment of standby duty pay continues during periods of temporary assignment under the following conditions:
(1) For a period of not more than 10 consecutive workdays on temporary assignment to other duties that do not qualify for pay for standby duty and for a total of 30 workdays in a calendar year while on such temporary assignment; or
(2) For an aggregate period of not more than 60 workdays on temporary assignment to a formally approved program for advanced training that is directly related to duties qualifying for standby duty pay.
I. Periodic Review of Standby Duty. The use of standby duty will be monitored on a annual basis to evaluate the need to continue this premium pay and the appropriateness of assigned percentage rates. The results of the review are documented on Form 3-2097 by the Project Leader when standby duty is initiated and when the use of standby duty is reviewed annually for the 12-month period ending September 30 of each fiscal year. When prepared as a result of the annual review, Form 2-2097 is submitted through supervisory channels to the Regional Director or other designated approving official by October 5 of each year.
7.23 Maximum Earnings Limitations on Premium Pay. The following maximum earnings limitations apply only to an exempt employee.
A. Biweekly Maximum Earnings Limitation. An employee may be paid premium pay only to the extent that the pay does not cause the total of his/her basic pay and premium pay for any pay period to exceed the maximum rate of pay for GS-15, including a locality-based comparability payment or an interim geographic adjustment and a special salary rate. The biweekly maximum earnings limitation does not apply to any pay period during which overtime work was performed in connection with an emergency or to a law enforcement officer (see 7.23C below).
B. Annual Maximum Earnings Limitation.
(1) The Secretary of the Interior may authorize payment of premium pay based upon an annual maximum earnings limitation for an employee who performs work in connection with an emergency involving a natural disaster, including a forest wildfire emergency. The Office of Personnel Management approves the authorization to pay premium pay based upon an annual limitation for an employee who performs work in connection with an emergency that is other than a natural disaster. In either case, an employee is performing work in connection with an emergency if the work is directly related to resolving or coping with the emergency or its immediate aftermath.
(2) Requests for the authorization of an annual maximum earnings limitation for the performance of work in connection with an emergency that involves a natural disaster or that is other than a natural disaster are signed by the Regional Director or Assistant Director, as appropriate, and forwarded to DPM for review. The documentation for each request must provide a description of the emergency, the date the emergency began, an estimate of the number of employees affected, and the types of premium pay involved (e.g., overtime, Sunday pay, or night differential).
(3) Any entitlement to premium pay under the annual limitation becomes effective on the first day of the pay period in which the emergency began.
(4) In any calendar year for which an exception to the biweekly maximum earnings limitation has been authorized, an employee may be paid premium pay only to the extent that the payment does not cause the total of his/her basic pay and premium pay for the calendar year to exceed the maximum rate for GS-15 (including a locality-based comparability payment or an interim geographic adjustment and a special salary rate) that is in effect on the last day of the calendar year.
(5) Servicing personnel offices will establish a separate file to maintain a record of each determination involving the authorization of an annual maximum limitation. As a minimum, the file will contain the documentation required in 7.23B(2) above.
C. Special Maximum Earnings Limitation for Law Enforcement Officers. A law enforcement officer may be paid premium pay only to the extent that the payment does not cause the total of his/her basic pay and premium pay for any pay period to exceed the lesser of:
(1) 150 percent of the minimum rate for GS-15, including a locality-based comparability payment, an interim geographic adjustment or special pay adjustment for law enforcement officers, and any special salary rate, rounded to the nearest whole cent (counting one-half cent and over as a whole cent); or
(2) The rate payable for level V of the Executive Schedule.
7.24 Claims for Additional Compensation Under the FLSA. A nonexempt employee who thinks that he/she was suffered or permitted to work without due compensation or was not properly compensated for work situations that are considered hours of work under the FLSA may file a claim for additional compensation with the Service, the Office of Personnel Management (OPM), or the General Accounting Office (GAO).
A. Time Limitations on Filing Claims.
(1) The statute of limitations is 2 years for claims filed on or after June 30, 1994. For claims predicated on a willful violation (see 7.6W, above), the statute of limitations is 3 years.
(2) To be in compliance, a claim for FLSA benefits must be filed and received by the Service, OPM, or GAO within 2 years or 3 years, as applicable, after the date such claim accrued. For example, a if a FLSA violation occurred on October 1, 1994, a nonexempt employee must file his/her claim on or before September 30, 1996, to comply with the 2-year statute of limitations.
(3) Claims filed before June 30, 1994, are subject to a 6-year statute of limitations.
(4) Claims that are not timely filed are forever barred thereby precluding any awarding of additional compensation to nonexempt employees. Once a claim has been filed with the Service or OPM, the statute of limitations continues to run during the adjudication of the claim. However, a claim filed with GAO stops the statute of limitations from running, and payment of any claim is retroactive to the date the claim was filed with GAO. An employee who files a claim with the Service or OPM should also send a copy of the claim to GAO to toll the statute of limitations.
(1) When filed with the Service, a claim for additional compensation is forwarded through supervisory channels to the servicing personnel office. Depending upon the nature of the claim, supporting documentation should include the following:
(a) The employee's identity, title, grade, series, and duty station;
(b) Copies of Standard Form 50, Notification of Personnel Action, or other documents that show the employee's official tour of duty and any authorized overtime; and
(c) An explanation relating to the nature of the claim, documents in support of the claim, and the dates and number of hours for which additional compensation is being claimed;
(2) When filed with OPM, the claim should identify the agency and bureau, provide the mailing address of the claimant, and include the information indicated in 7.24B(1)(a) through 7.24B(1)(c), above.
(3) When filed with GAO for adjudication, the claim should include all information indicated in7.24(B)(1) through 7.24(B)(2), above. If filing with GAO for purposes of tolling the statute of limitations, the documentation transmitting the claim should state specifically that the claim has been filed with the Service or OPM, as applicable, for adjudication and that a copy of the claim is sent to GAO solely to toll the statute of limitations applicable under sections 71a and 237 of title 31, United States Code. All claims must bear the signature and address of the claimant or an authorized agent or attorney and must be sent to the Payment Branch, Claims Group-AFMD, U.S. General Accounting Office, Washington, D.C. 20548 for recording.
C. Payment of Claims.
(1) The Service is authorized to pay retroactive compensation, up to the statute of limitations, for claims filed as a result of an FLSA violation. A servicing personnel office that adjudicates a claim filed under the FLSA, concluding that an employee is entitled to additional compensation (and interest, as appropriate), provides written notification to the employee and the employee's division or office concerning the entitlement and amount of compensation to be paid to the employee. However, before a claim can be paid, the servicing personnel office must establish an effective date for the payment of the claim in order to determine if the period covered by the claim falls within the statute of limitations and to compute the additional compensation due the employee. The payment of a claim is made by the Payroll Unit based upon the receipt of official documentation from the servicing personnel office. Such documentation, in addition to identifying information about the employee, must specifically state the period of entitlement and the amount to be awarded, including any interest due the employee as part of the back pay award. Also, the transmittal must include, as appropriate, amended T&As (obtained from the employee's office) to cover the period of entitlement.
(2) A statutory investigative and compliance procedure requires that alleged violations of the FLSA be reviewed by the OPM when the claimant prefers to file a claim with OPM rather than with the Service. Following its adjudication of the claim, OPM will notify the Service of its decision. If the decision is favorable to the employee, the employee will be notified and payment will be made for the period covered by the statute of limitations. If the decision is not favorable, the employee will be informed of OPM's decision.
7.25 Records Maintenance. Documentation relating to the approval of premium pay must be appropriately maintained in a separate file in the initiating office for reference and retrieval purposes and should be retained for at least 3 years.
7.26 Forms. Form 3-136, Form 3-2097, and Form 3-2158 may be reproduced locally.
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