Unless regularly paid for hours in excess of 40 hours a week under an alternative work schedule or exempt under one of the statutory or regulatory provisions mentioned below, an employee is not entitled to basic pay from more than one position for more than a total of 40 hours in one calendar week.
"Position" means a civilian office, including a temporary, part-time, or intermittent position, whether appointive or elective, in any branch of the government, including a government corporation, armed forces nonappropriated fund instrumentality, or the government of the District of Columbia.
There are no restrictions on the number of appointments (positions) an employee may hold so long as the employee is not paid basic pay for the same hours or for more than 40 hours in the aggregate for the same calendar week.
Pay From More Than One Civilian Position
Statutory exemptions under 5 U.S.C. 5533. The prohibition against dual employment in the paragraph above does not apply to pay derived from the following:
- Pay on a when-actually-employed basis received from more than one consultant or expert position if the pay is not received for the same hours of the same day.
- Pay consisting of fees paid on other than a time basis.
- Pay paid by the Tennessee Valley Authority to an employee performing part-time or intermittent work in addition to his or her normal duties.
- Pay received as a teacher in the schools of the District of Columbia for a position during summer vacation period.
- Pay received for positions which are paid by the Secretary of the Senate or Clerk of the House of Representatives or one of the positions under the Architect of the Capitol. (There are limitations on this exemption.)
- Pay within the purview of 13 U.S.C. 23(b), to employees engaged in the field work of the Bureau of the Census.
- Pay within the purview of 33 U.S.C. 873, to employees in connection with instrument observation or recording, the observation of tides or currents, or the tending of seismographs or magneto graphs.
- Pay within the purview of 15 U.S.C. 327, to employees engaged in taking and transmitting meteorological observations.
- Pay from a Federal civilian position in addition to pay received by a member of the uniformed service while on terminal leave pending honorable release or separation.
- Pay received as an employee of the Postal Service, except as a member of the Board of the Postal Service.
Regulatory exceptions under 5 U.S.C. 5533. The OPM has exempted from the dual pay prohibition:
- Part-time or intermittent employment for which OPM has established special minimum pay rates under 5 U.S.C. 5303.
- Part-time or intermittent employment as a counselor in connection with summer youth opportunity programs in the Washington, D.C. metropolitan area.
- Part-time or intermittent employment as a test monitor for OPM.
Employment Of Retired Members Of The Uniformed Services
The reduction to military retired or retainer pay for retired officers of a regular component in the uniformed services because of employment by the Federal Government, as well as a capping of the combined civilian pay and military retired or retainer pay at Executive Level V, are no longer applicable. Section 651, Public Law 106-65, October 5, 1999, repealed section 5532 of Title 5, United States Code (U.S.C.) effective October 1, 1999. As a result, neither reductions in military retired or retainer pay, nor the Executive Level V cap (based on Title 5, U.S.C. 5532), apply to periods of civilian employment on or after October 1, 1999.
Employment of Civil Service Annuitants
Unless OPM is asked to waive the reduction in retired pay by the Director for Human Resources Management, a reemployed annuitant's retired pay will either be reduced or terminated when the retiree is reemployed.
Specifically, basic compensation paid a reemployed annuitant who retires under the Civil Service Retirement System (CSRS) will be reduced by the amount of the retiree's annuity for the period of reemployment. (The employee will be fully compensated at the grade of the position but the compensation will be made up of salary or wages and the annuity.) The basic annuity or disability benefits of a reemployed annuitant who retires under the Federal Employees' Retirement System (FERS) will be terminated beginning the date of reemployment. (While reemployed, the FERS annuitant will receive full compensation for the grade of the position from salary or wages.)
The dual compensation law does not prohibit any of the following combinations of simultaneous payments: a civil service annuitant's receiving military retired pay and an annuity; a survivorship annuity and an annuity based on personal service; civilian compensation and an annuity; or compensation for Federal civilian service under a Veterans Administration-sponsored training program while receiving disability benefits or a pension, including vocational training payments.
Reemployment Without Penalty to Meet Temporary Emergency Hiring Needs
If a waiver of the reduction in retired pay is approved by OPM, a military retiree or a civil service annuitant may be reemployed without reduction/termination of retired pay to meet temporary emergency hiring needs or to fill a position for which the agency has had exceptional difficulty in recruiting and retaining a qualified individual. A request to fill a position with a waiver of the penalty must meet requirements outlined at the end of this Section and may only be forwarded to OPM by the Director for Human Resources Management. Appointments will be on hold pending OPM response. Civil service annuitants may not use reemployment for which the reduction in retired pay has been waived as the basis for a supplemental or recomputed annuity and may not participate in the Thrift Savings Plan.
A reemployed military retiree for whom the penalty has been waived is considered an employee for purposes of CSRS or FERS retirement and will be treated like any other employee in these regards.
Employment of Reserves and National Guardsmen
Employment in a civilian position (which is paid for by appropriated funds) of any person on active duty in the armed forces is incompatible with military service, except that a member pending honorable separation from active duty may accept a civilian job and pay and allowances for the unexpired portion of terminal leave. (See 18 Comp. Gen. 213; Comp. Gen. B-222967, dated June 2, 1987).
A Reserve of the armed forces or member of the National Guard may accept a civilian office or position under the Government of the United States and is entitled to receive the pay of that office or position in addition to pay and allowances as a Reserve or member of the National Guard.
The Bureau of the Census is specifically authorized to appoint and compensate enlisted personnel or officers of the uniformed services for the enumeration of personnel of the uniformed services. (See 13 U.S.C. 24(c).)
Compensation Received by an Employee on Military Leave
An employee who is granted military leave or annual leave for the purpose of engaging in military training duty is entitled to the compensation of his or her civilian position and the pay for military training duty for the training period.
Employees are entitled to unlimited military leave for each day or portion thereof for participating in a parade or encampment; however, their civilian pay will be offset by the military pay received for such service.
Employees on military leave for the purpose of providing military aid to enforce the law shall have their civilian pay offset by the military pay received for such service (other than travel, transportation, or per diem).
Members of the Reserve Officers Training Corps who are called to perform duty prior to appointment as reserve officers by the President, are ineligible for military leave and hence are subject to dual compensation law. (See 35 Comp. Gen. 531.)
An employee who enters on active military or naval duty, by voluntary enlistment or otherwise, without a break in service from a civilian position, may receive, in addition to military pay, the compensation of the civilian position covering accumulated or accrued annual leave.
Compensation for Injury Incurred in the Line of Duty
An employee may not receive any salary in his or her position in the form of leave payments during the period he or she is receiving compensation under Subchapter I, Chapter 81, of Title 5, U.S. Code, in connection with disability resulting from an injury sustained in performance of duty. An employee may, however, use annual and sick leave prior to receipt of compensation payments.
Payment of terminal annual leave in a lump sum does not bar payment of concurrent benefits (including disability compensation) under Subchapter I, Chapter 81, of Title 5, U.S. Code.
If an injured employee following an injury returns to the payroll in Government service at a decreased wage rate because of an injury-related loss of wage earning capacity and is entitled to receive partial disability pay under 5 U.S.C. 8106, he or she is not barred from concurrent payment for annual or sick leave.
Under 5 U.S.C. 8107, an employee who has received an award for total or partial loss, or loss of use, of a member or function of the body may be paid compensation for services actually performed without jeopardizing his or her right to compensation under Subchapter I, Chapter 81, of Title 5, U.S. Code.
Prohibition of Extra Pay for Details and Extra Services
Details. An employee is entitled to the pay and allowances of the position to which appointed. He or she is not entitled to additional pay for services performed while substituting for another employee, or while acting as the designated replacement pending appointment to the position.
Extra services. An employee or member of a uniformed service whose pay or allowance is fixed by statute or regulation may not receive additional pay or allowances for the disbursement of public money or for any other service or duty unless the law specifically authorizes it and the appropriation specifically states that the additional pay or allowances may be provided.
5 U.S.C. 5532, Employment of military retirees; reduction of retired or retainer pay);
5 U.S.C. 5533 (dual pay for more than one position; limitations and exceptions);
5 U.S.C. 5534 (dual employment and pay for Reserves and National Guardsman);
5 U.S.C. 5535, 5536, and 5537 (extra pay for details, extra services, jury and witness services, respectively);
5 U.S.C. 8344 and 8468 (annuities and pay on reemployment);
5 C.F.R. 550, Part E (pay for more than one position).
Procedures For Requesting Reemployment Without Penalty Of Annuitants And Retired Members
Reemployment of retirees without penalty. At the request of the Director for Human Resources Management, the Office of Personnel Management may authorize the reemployment of an annuitant or appointment of a retired military with a waiver of the reduction in retired pay required under U.S.C. 8344 and 8468.
Situations in which a waiver may be granted Emergency hiring need. A waiver of the reduction in pay may be granted when appointment of the individual responds to an emergency hiring need, e.g., a military threat, a natural disaster which poses a threat to human life or property, or some other serious unexpected situation. Appointment and waiver in any of these cases will be for the period of the emergency and its immediate aftermath and no longer. Appointment of an individual to "fill behind" a person immediately and directly involved with the emergency is not a qualifying situation. An appointment solely to meet seasonal work fluctuations will not satisfy the criteria.
Severe recruiting difficulty. A waiver of the retired reduction will be considered when the appointment is to fill a position for which there has been exceptional difficulty in recruiting qualified individuals.
Retention of a specially qualified employee. A waiver will be considered when the need is to retain a specially qualified employee who is critical to a project and who has announced intentions to resign or retire. A request or waiver of the reduction in retired pay in this category will not be considered solely to avoid delays in completing scheduled work.
Requirements of waiver submissions. A request for waiver of penalty for any of the reasons outlined above must address/include the following:
- The name of the employee
- The position description for the appointive position
- The appointing authority
- A statement saying the appointee has not been on the rolls in the last 12 months
- A statement indicating that equity and fiscal responsibility have been considered
- Certification of the head of the operating unit
Request to meet emergency hiring needs. A request under this heading must describe the emergency, the begin date, expected duration, and the skills and qualifications the appointee brings to the effort.
Request based on severe recruiting difficulty. A request based on severe recruiting difficulty must be specific with respect to the scope of the recruiting effort; the results of the recruiting effort (offers accepted/declined; quality of applicants); and any other factors affecting the recruitment, e.g., unusual qualifications, working conditions, urgency of the recruitment, etc.
Request based on the retention of a specific individual. A request to retain a specific individual should describe the particular abilities the employee brings to the work; the staffing situation such that another employee cannot do the work; and the importance of the project in terms of the legislative mandates or strategic planning objectives that won't be accomplished without that individual.
Extensions of waivers. When a waiver in the reduction of retired pay is granted, it is effective only for the individual and position for which it is authorized. If the employee is reassigned, or the position changes substantially, the waiver is null and void. When the time period for which the waiver was granted expires, the operating unit must request an extension. The extension must be justified, i.e., it must demonstrated that the reason for the waiver still exists.