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Overtime Standards

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Applicability

This information applies to all employees except ES and FE employees.

General rules

The following general rules apply regardless of the authority under which overtime is earned:

Part-time and intermittent employees have the same overtime entitlement as full-time employees.

Mutual exclusion. Hours of work which are counted as overtime hours in excess of eight in a day cannot also be counted for hours in excess of forty in a week.

Hours of paid leave taken during the employee's basic workweek count as hours of work for purposes of meeting the daily or weekly overtime standards. This includes:

  • Sick leave
  • Annual leave
  • Military leave
  • Court leave
  • Home leave
  • Shore leave
  • Holidays
  • Time on continuation of pay
  • Periods of excused absence. However, excused absence may not be granted in excess of an employee's base hours thereby providing the employee with an overtime entitlement.

Hours of leave without pay (LWOP) must be made up on an hour for hour or day for day basis in the same day or week, respectively, as the LWOP was taken before any hours can be counted towards overtime for that day or week.

Overtime Standards

Daily and weekly standard. Title 5 provides a daily and a weekly overtime standard. Under Title 5, overtime is hours of work authorized or approved by management in excess of 8 in a day or 40 in a week. Title 5 overtime standards and conditions of overtime apply to FLSA NONEXEMPT and EXEMPT employees.

FLSA standard. The FLSA overtime standard equals hours of work in excess of 40 in a week. Any condition which is hours of work solely under FLSA counts against the weekly standard only and will affect NONEXEMPT employees exclusively.

A NONEXEMPT employee cannot be paid overtime on the basis of hours in excess of 8 in a day for performing hours of work which meet the criteria for overtime solely under FLSA since the FLSA overtime standard is a weekly standard. (See below)

No employee can be paid overtime in excess of the daily standard for hours of work which count against the weekly overtime standard only.

First 40-hour employees. Overtime hours, for an employee for whom the first 40 hours is the basic workweek, comprise all hours of work officially ordered or approved in excess of the first 40 hours in the administrative workweek, provided the employee is either a:

  • GS or FP employee performing professional or technical scientific or engineering activities, or support technician duties in the physical, mathematical, natural, medical, or social sciences, engineering or architecture; or
  • GS or FP employee with a rate of basic pay in excess of the minimum of GS-10 (including a locality-based comparability payment under 5 U.S.C. 5304 or special pay adjustment for law enforcement officers under section 302, 403 or 404 of the FEPCA of 1990, respectively; and any applicable special rate of pay under 5 U.S.C. 5305 or similar provision of law).

All other first 40-hour employees. All GS and FP employees not included under the heading above and all FWS employees may be assigned to a first 40-hour tour of duty as the work demands but there is no monetary savings since they must be compensated at their overtime rate for all hours in excess of the daily or weekly overtime standard.

Overtime standard for employees on a flexible AWS schedule. "Overtime hours" when used with respect to flexible work schedules means all hours in excess of 8 in a day or 40 hours in a week which are officially ordered in advance, not including credit hours.

Overtime standard for employees on compressed schedules (no flex permitted). For employees on a compressed schedule, overtime is hours of work which are officially ordered or approved and which are in excess of the employees' basic work requirement.

Overtime standard for firefighters and certain law enforcement officers under Section 7k of the FLSA. FLSA establishes a higher overtime standard for NONEXEMPT firefighters and law enforcement officers who are subject to Section 7(k) of the FLSA (see Definitions). For firefighters, the weekly overtime standard is 53 hours; for certain law enforcement officers, (not including those earning availability pay or those engaged in compliance work) the weekly overtime standard is 42 3/4 hours.

Secretarial officers, Senior Executive Service employees, and equivalents. Under law (5 U.S.C. 5542 and 5547) Secretarial officers, members of the Senior Executive Service, the Senior Foreign Service, Foreign Service officers, and persons whose pay is in excess of GS-15, step 10, may not be paid premium pay.

What Time is Credited as Overtime

Overtime work must be performed in order for there to be an overtime entitlement - usually. Whether regular or irregular overtime is performed in advance of (or at the completion of) the employee's scheduled daily tour (or basic workweek) is immaterial as long as the overtime work is performed and the daily (or weekly) overtime standard is met. The employee who has not performed work in excess of his or her base hours may not preserve an overtime entitlement by substituting leave or excused absence for the overtime work which was not performed. Moreover, because the employee was scheduled to perform overtime which is paid at the hourly overtime rate does not entitle the employee to overtime. Regular or irregular overtime which the employee does not have the opportunity to perform because a closing is announced before the daily overtime standard is met is deemed canceled. The general rule that paid absence during the basic workweek an employee must perform overtime work in order to be paid for it is subject to these exceptions:

  • Pay for regularly scheduled overtime and annual premium pay will be continued when an employee is absent due to a training assignment.
  • An employee may take compensatory time off during a period of regularly scheduled overtime in compensation for irregular or occasional overtime work.
  • Premium pay on an annual basis for standby work, administratively uncontrollable overtime, or availability pay will be continued when the employee is in a paid leave status and may be continued when the employee is granted excused absence at management's discretion.

Hours of work applicable to both standards. Hours of work which can be counted by EXEMPT and NONEXEMPT employees in excess of the daily or weekly overtime standards include any overtime under Title 5 that is payable at the employee's hourly overtime rate, e.g., irregular or occasional overtime, including call-back overtime and regularly scheduled overtime; authorized travel which is performed in excess of the overtime standards which also meets the criteria for hours of work under Section 9; and training during overtime which meets the criteria for hours of work under Section 11.

Hours of work in excess of the weekly standard only. Hours of work deriving from Title 5 which count against the weekly standard exclusively for EXEMPT and NONEXEMPT employees include any hours of work paid at the annual premium pay rate, i.e. regularly scheduled standby duty, administratively uncontrollable overtime, or availability duty.

For a NONEXEMPT employee, hours of work counting against the weekly standard include all hours mentioned above and three conditions which are hours of work deriving solely from FLSA: (1) suffered or permitted work, (2) travel as a passenger to and from a temporary duty station (not including travel between home and the normal duty station), and (3) overnight travel during hours on nonworkdays which correspond to regular working hours.

NOTE: Whether overtime work performed by an employee satisfies a Title 5/FLSA weekly standard or the Title 5 daily standard is important if a NONEXEMPT employee's overtime entitlement is being manually calculated. Being able to assign overtime to the "over 8" and "over 40" categories is important then because it is possible for a NONEXEMPT employee to have worked only 40 hours total, seemingly have no overtime entitlement under FLSA, but have performed a category of overtime which counts for hours over 8 under Title 5, and, therefore, for that employee to have overtime for which payment must be made at the FLSA overtime rate.

Crediting Suffered or Permitted Work

Suffered or permitted work, and work the employee is induced to perform by virtue of the situation in which he or she is placed by management's requirements, are concepts exclusive to the FLSA and, therefore, only of concern in counting hours of work for NONEXEMPT employees. A NONEXEMPT employee must be compensated for any work which is not ordered or scheduled which he or she performs in excess of 40 hours in an administrative workweek if the supervisor is or has reason to be aware of it, has the opportunity to prevent it, and fails to act. The concept of suffered and permitted work is set aside in an AWS flexible work environment.

Overtime and Daylight Savings Time

When time is officially changed (as from standard to daylight savings time) during an employee's working hours, the employee must be credited with the actual amount of overtime, night, holiday, and Sunday work, if any is performed during that period. If the employee loses a nonovertime hour, the employee must be charged leave unless the authorizing official approves an employee's request to work an extra hour to avoid the involuntary charge to leave.

Premium Pay Discontinued

Except as noted in this Section, premium pay will be discontinued when an employee is not in pay status since the work and earnings on which it is based have ceased.




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