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OPM.gov / Policy / Pay & Leave / Pay Administration
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Premium Pay (Title 5)

Fact Sheet: Premium Pay (Title 5)

Description

Premium pay is additional pay provided to employees for working certain types of hours or under certain types of conditions, as provided under 5 U.S.C. chapter 55, subchapter V and 5 CFR part 550, subpart A. Premium pay paid under title 5 is subject to certain biweekly or annual pay limitations.

Note: This fact sheet does not apply to prevailing rate (blue collar) employees under the Federal Wage System who receive premium pay under 5 U.S.C. 5544.

Employee Coverage

Employees in an agency, (as defined in 5 U.S.C. 5541(1)), are covered by the title 5 premium pay provisions unless they are excepted from coverage under 5 U.S.C. 5541(2) or other applicable statutory authority. The definition of “agency” in 5 U.S.C. 5541(1) includes all Executive agencies as defined in 5 U.S.C. 105 and certain legislative branch agencies. Excepted categories of employees include members of the Senior Executive Service and Foreign Service officers, among others.

Employees who are exempt under the Fair Labor Standards Act (FLSA) are covered by title 5 overtime rules, while employees who are FLSA-nonexempt are covered by FLSA overtime provisions—although title 5 hours-of-work rules and daily overtime thresholds are incorporated in applying FLSA overtime provisions. (See 5 CFR part 551 for FLSA overtime rules.)

  • The actual duties an employee performs determine whether an employee is nonexempt (covered) or exempt (not covered) under the minimum wage and overtime provisions of the FLSA. Each agency’s servicing human resources office determines FLSA coverage, and it is stated on the employee’s Standard Form 50 (SF-50), box 35, as N (nonexempt) or E (exempt).
  • FLSA overtime pay and FLSA compensatory time off in lieu of overtime pay are excluded from the definition of premium pay and are not subject to the premium pay biweekly and annual limitations. However, FLSA-nonexempt employees may still earn other premium pay, such as Sunday premium pay and night pay, which remain subject to the premium pay biweekly and annual limitations.

What is Included as Premium Pay?

Premium pay includes pay authorized under title 5 for overtime, night, Sunday, or holiday work; or for standby duty, administratively uncontrollable overtime work, or availability duty. Premium pay also includes the dollar value of earned hours of compensatory time off for FLSA exempt (not covered) employees.

What Is Not Included as Premium Pay?

Premium pay excludes overtime pay and compensatory time off in lieu of overtime pay earned by FLSA-nonexempt (covered) employees. Also, compensatory time off for travel, compensatory time off for religious observances, credit hours, and hazardous duty pay are not considered to be premium payments for either FLSA-exempt or nonexempt employees, and, therefore, are not subject to the biweekly and annual limitations on premium pay.

What Is Rate of Basic Pay Used in Computing Premium Pay?

An employee’s rate of basic pay is used in computing premium pay. The rate of basic pay is the rate of pay fixed by law or administrative action for the employee’s position. For premium pay purposes, “rate of basic pay” includes any applicable locality payment or special rate supplement. (See 5 U.S.C. 5304(c)(2)(A), 5305(j), and 5542; 5 CFR 530.308(a) and 5 CFR 531.610(c); and the definition of “rate of basic pay” in 5 CFR 550.103.)

Regularly Scheduled Work

Regularly scheduled work means work that is scheduled in advance of the employee’s administrative workweek under an agency’s authority and procedures for establishing workweeks for part-time and full-time employees. A Sunday-through-Saturday administrative workweek is typical. An employee on a full-time or part-time work schedule generally has a basic workweek with a tour of duty established before the workweek begins. Hours within the basic workweek (or basic work requirement for employees with a flexible or compressed work schedule) are considered to be regularly scheduled. (See 5 CFR 610.111(a)(2) and 610.111(d).) Overtime work may be regularly scheduled or irregular. (See 5 CFR part 610, subpart A, for the rules on scheduling hours of work, which is the basis for premium pay determinations and entitlements.)

Types of Premium Pay

  • Regularly scheduled or irregular overtime pay (title 5): Overtime pay provided under 5 U.S.C. is pay for hours of work officially ordered or approved in excess of applicable overtime standards (generally 8 hours in a day or 40 hours in an administrative workweek). (See 5 U.S.C. 5542, 5 CFR 550.103 and 5 CFR 550.111-113.) See Overtime Pay Title 5 Fact Sheet.
  • Compensatory time off (title 5): Regular compensatory time off earned by working overtime hours is considered premium pay for FLSA-exempt employees. This earned compensatory time off is converted to a dollar value for the purposes of (1) applying premium pay limitations and (2) cashing out a balance of hours, when permitted. The dollar value is the amount of overtime pay the employee otherwise would have received for the hours of the pay period during which the compensatory time off was earned by performing overtime work. (See definition of “premium pay” in 5 CFR 550.103 and 550.114(g).) (See 5 U.S.C. 5543 and 5 CFR 550.114.) See Compensatory Time Off Fact Sheet. [Note: Compensatory time off for religious observances and compensatory time off for travel are not considered premium pay and thus are not addressed in this fact sheet.]
  • Night pay: Night pay is a 10-percent differential paid to an employee for regularly scheduled work performed at night. It is computed as a percentage of the employee’s rate of basic pay. (See 5 U.S.C. 5545(a) and 6123(c), 5 CFR 550.103, and 5 CFR 550.121-122.) See Night Pay for General Schedule Employees Fact Sheet.
  • Sunday premium pay: An employee is entitled to 25 percent of his or her rate of basic pay for work performed during a regularly scheduled, nonovertime, basic 8-hour tour of duty that begins or ends on a Sunday. (See 5 U.S.C. 5546(a) and 6128(c), 5 CFR 550.103, and 5 CFR 550.171-172.) See Sunday Premium Pay Fact Sheet.
  • Holiday premium pay: For each hour of holiday work, employees receive holiday premium pay. Holiday premium pay is equal to an employee’s rate of basic pay. Employees who are required to work on a holiday during their tour of duty receive their rate of basic pay, plus holiday premium pay, for each hour of holiday work. (See 5 U.S.C. 5546(b), 5 CFR 550.103, and 5 CFR 550.131-132.) See Holidays Work Schedules and Pay Fact Sheet.
  • Standby duty pay: The head of an agency may approve standby duty pay for an employee in a position requiring the employee to remain at, or within the confines of, his or her duty station during longer than ordinary periods of duty. Standby duty pay applies in lieu of overtime pay for regularly scheduled overtime hours, Sunday pay for Sunday work within the basic workweek, holiday premium pay for holiday work, and night pay for nightwork. Standby duty pay recipients may receive standard overtime pay for any irregular overtime hours. Standby duty pay may not exceed 25 percent of an employee’s rate of basic pay. (See 5 U.S.C. 5545(c)(1), definitions in 5 CFR 550.103, 5 CFR 550.141-144, and 5 CFR 550.161-164.)
  • Administratively uncontrollable overtime (AUO) pay: The head of an agency may approve AUO pay for an employee in a position in which the hours of duty cannot be controlled administratively and which requires substantial amounts of irregular, unscheduled overtime work, with the employee generally being responsible for recognizing, without supervision, circumstances which require the employee to remain on duty. AUO pay is compensation for all irregular overtime hours (i.e., overtime hours that are not regularly scheduled) and may not exceed 25 percent of an employee’s rate of basic pay. (See 5 U.S.C. 5545(c)(2) and 5 CFR 550.151–164.) See /oca/compmemo/1997_1996/cpm96-19.asp and /oca/compmemo/html/cpm97-5a.htm. See also Guidance on Applying FLSA Overtime Provisions to Law Enforcement Employees Receiving Administratively Uncontrollable Overtime Pay Fact Sheet.
  • Availability pay: Law enforcement availability pay (sometimes called “LEAP”) is a type of premium pay that is paid to Federal law enforcement officers (LEOs) who are criminal investigators. Due to the nature of their work, criminal investigators are required to work, or be available to work, substantial amounts of “unscheduled duty”. Availability pay applies to “unscheduled duty” hours as defined in law and regulation and is paid at 25 percent of an employee’s rate of basic pay, subject to aggregate premium pay limitations. Availability pay is generally an entitlement that an agency must provide if the required conditions are met, but is optional in Offices of Inspectors General that employ fewer than five criminal investigators. (See 5 U.S.C. 5542(d) and (e), 5 U.S.C. 5545a, 5 CFR 550.181-187, 5 CFR 550.103 (see definitions of “criminal investigator” and “law enforcement officer”), 5 CFR 550.111(f) (authorization of overtime pay), 5 CFR 550.163(e) (relationship to other payments), and 5 CFR 550.202 (rate of basic pay).) See Availability Pay Fact Sheet.

Firefighter Pay

Employees who are classified as GS-0081 firefighters and whose regular tours of duty average at least 106 hours per biweekly pay period are covered by special pay rules in 5 U.S.C. 5545b and 5 CFR part 550, subpart M, including special premium pay rules:

  • All on-duty sleep periods are counted as hours of work. (See 5 CFR 550.112(m)(4), 5 CFR 551.432(f), and 5 CFR 551.541(b).)
  • Section 5545b firefighters may not receive any premium pay except for overtime pay. (See 5 U.S.C. 5545b(d)(1) and 5 CFR 550.1306(a).) Overtime pay received by FLSA-exempt section 5545b firefighters is title 5 premium pay.
  • For both FLSA-exempt and nonexempt firefighters covered by 5 U.S.C. 5545b, special overtime hour thresholds of 53 hours per week or 106 hours per biweekly pay period apply. (See 5 U.S.C. 5542(f)(1), 5 CFR 550.111(g), 5 CFR 551.501, and 5 CFR 551.541.)
  • Special hourly rates of basic pay and hourly overtime rates apply. (See 5 U.S.C. 5542(f)(2) and 5545b(b)-(d), 5 CFR 550.113(e), 5 CFR 550.1303-1304, 5 CFR 550.1306(b), and 5 CFR 551.541(d).)

Biweekly and Annual Limitations on Premium Pay

General Schedule (GS) employees and other covered employees may receive certain types of premium pay for a biweekly pay period only to the extent that the sum of basic pay and premium pay for the pay period does not exceed the greater of the biweekly rate payable for (1) GS-15, step 10 (including any applicable locality payment or special rate supplement), or (2) the rate payable for level V of the Executive Schedule.

In certain emergency or mission critical situations, an agency may apply an annual premium pay cap instead of a biweekly premium pay cap, subject to the conditions provided in law and regulation.

For more information, see the latest yearly fact sheet on Biweekly Caps on Premium Pay. (See 5 U.S.C. 5547 and 5 CFR 550.105-107.)

References

  • 5 U.S.C. 5541-5548
  • 5 CFR 550.103
  • 5 CFR part 550, subpart A

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