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Pay & Leave Pay Administration

Fact Sheet: Overtime Pay, Title 5

Description

Overtime pay provided under title 5, United States Code, is pay for hours of work officially ordered or approved in excess of 8 hours in a day or 40 hours in an administrative workweek.

Employee Coverage

FLSA exempt employees, as defined in 5 U.S.C. 5541(2), who work full-time, part-time, or intermittent tours of duty are eligible for title 5 overtime pay. Employees in senior-level (SL) and scientific or professional (ST) positions who are paid under 5 U.S.C. 5376 are not excluded from the definition of "employee" in 5 U.S.C. 5541(2). Therefore, employees in SL and ST positions are covered by the premium pay provisions in subchapter V of chapter 55 of title 5, United States Code (e.g., overtime pay provisions in 5 U.S.C. 5542, and the biweekly and annual premium pay limitations in 5 U.S.C. 5547).

Rate of Basic Pay

For overtime pay purposes, rate of basic pay means the rate of pay fixed by law or administrative action for the position held by an employee, including any applicable locality payment or special rate supplement. (See definition in 5 CFR 550.103.)

Overtime Hourly Rate

For employees with rates of basic pay equal to or less than the rate of basic pay for GS-10, step 1, the overtime hourly rate is the employee's hourly rate of basic pay multiplied by 1.5.

Section 1121 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108-136) amended the overtime pay cap provisions that apply to employees covered by 5 U.S.C. 5542(a)(2). The new overtime pay cap became effective on November 24, 2003. Under the amended 5 U.S.C. 5542(a)(2), for employees with rates of basic pay greater than the basic pay for GS-10, step 1, the overtime hourly rate is the greater of-

  1. the hourly rate of basic pay for GS-10, step 1, multiplied by 1.5, or
  2. the employee's hourly rate of basic pay.

These hourly overtime pay limitations do not apply to prevailing rate (wage) employees or to FLSA overtime pay.

Limitations

There is a biweekly pay limitation that limits the amount of premium pay that can be paid during a biweekly pay period. Under 5 U.S.C. 5547(a) and 5 CFR 550.105, premium pay cannot be paid to General Schedule employees (including law enforcement officers and other covered employees) to the extent that doing so would cause an employee's basic pay, overtime pay, the dollar value of compensatory time off, night pay, annual premium pay, Sunday premium pay, and holiday premium pay to exceed the greater of the biweekly rate for-

  1. GS-15, step 10 (including any applicable special salary rate or locality rate of pay), or
  2. level V of the Executive Schedule.

Exception:  For employees performing emergency work (as determined by the agency head or OPM), or mission-critical work (as determined by the agency head), premium pay cannot be paid which causes the total of basic pay and premium pay to exceed the greater of the annual rate for-

  1. GS-15, step 10 (including any applicable special salary rate or locality rate of pay); or
  2. level V of the Executive Schedule.

These limitations do not apply to wage employees or to FLSA overtime pay.

Note:

The following types of premium pay remain subject to a biweekly limitation when other premium payments are subject to an annual limitation:

  1. Standby duty pay under 5 U.S.C. 5545(c)(1);
  2. Administratively uncontrollable overtime pay under 5 U.S.C. 5545(c)(2);
  3. Availability pay for criminal investigators under 5 U.S.C. 5545a; and
  4. Overtime pay for hours in the regular tour of duty of a firefighter covered by 5 U.S.C. 5545b.

Compensatory Time Off: The biweekly pay limitation in 5 U.S.C. 5547 is also a ceiling on compensatory time off. Compensatory time off is merely an alternative form of payment for overtime work. As such, the value of an hour of compensatory time off is equal to the overtime hourly rate that is payable in dollars. Thus, the number of hours for which an employee may receive monetary overtime pay is also the number of hours of compensatory time off that may be credited in a pay period. An employee may not exceed the biweekly pay limitation by choosing compensatory time off as a substitute for monetary overtime pay.

References

  • 5 U.S.C. 5542 and 5 U.S.C. 5547
  • 5 CFR 550.101-113
  • For wage employees, see 5 U.S.C. 5544 and 5 CFR 532.503

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