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Pay & Leave Pay Administration

Fact Sheet: Expert and Consultant Pay

Description

If authorized by an appropriation or other statute to use 5 U.S.C. 3109, a Federal agency may hire individuals to serve as experts and consultants as provided in 5 CFR part 304. This fact sheet provides information on how such experts and consultants are paid.

  • An “expert” is a person who is specially qualified by education and experience to perform difficult and challenging tasks in a particular field beyond the usual range of achievement of competent persons in that field. (See 5 CFR 304.102(d).)
  • A “consultant” is a person who can provide valuable and pertinent advice generally drawn from a high degree of broad administrative, professional, or technical knowledge or experience. (See 5 CFR 304.102(b).)

Agencies may appoint experts and consultants on a temporary basis (i.e., not to exceed 1 year) or an intermittent basis (i.e., without a regularly scheduled tour of duty). These employees are not covered by the standard provisions related to appointment in the competitive service (5 CFR part 332), position classification (5 U.S.C. chapter 51), or General Schedule pay setting (5 U.S.C. chapter 53, subchapter III).

Note: The provisions of 5 U.S.C. 3109 and 5 CFR part 304 do not apply to the appointment of experts and consultants under other employment authorities or to the procurement of services by contract under Federal procurement laws.

Determining Rate of Pay

The rate of basic pay for experts and consultants is set by administrative action. An agency must determine the appropriate rate of basic pay on an hourly or daily basis, subject to the limitations described in “Pay Limitations” below. In determining the initial rate of basic pay for an expert or consultant, an agency must consider the following factors:

  • The level and difficulty of the work to be performed;
  • The qualifications of the expert or consultant;
  • The pay rates of comparable individuals performing similar work in Federal or non-Federal sectors; and
  • The availability of qualified candidates.

Locality Payments

Since experts and consultants appointed under 5 U.S.C. 3109 are not General Schedule employees, they are not automatically covered by the locality payments provided under 5 U.S.C. 5304 and 5 CFR part 531, subpart F. However, the President’s Pay Agent may extend locality pay to an agency’s experts and consultants upon request of the agency head. (See 5 U.S.C. 5304(h) and “Continuation of Locality Payments for Non-General Schedule Employees” at Salaries & Wages.) Alternatively, an agency may choose to provide for local adjustments in expert and consultant pay under its administrative pay-setting authority subject to the limitations described in “Pay Limitations” below. Any such administratively-determined local adjustments are not covered by the locality pay rules in 5 U.S.C. 5304 and 5 CFR part 531, subpart F.

Pay Limitations

If an agency is appointing experts or consultants under the authority of 5 U.S.C. 3109, then the agency is bound by its pay limitations, unless the agency has some other specific statutory authority that allows it to pay experts and consultants at a higher rate. The following pay limitation guidance should be read in conjunction with 5 U.S.C. 3109 and 5 CFR 304.105.

Daily Pay Limitation

Unless specifically authorized by an appropriation or other statute, an agency subject to chapter 51 and subchapter III of chapter 53 of title 5, United States Code, may not pay an expert or consultant for any 1 day an aggregate amount of pay (including basic pay, locality pay, and premium pay) that exceeds the daily rate for GS-15, step 10 (excluding locality pay or any other additional pay). (See General Schedule pay tables.)

A daily rate is computed by dividing the annual GS-15, step 10, base rate (excluding locality pay or any other additional pay) by 2,087 hours to find the hourly rate of pay and by multiplying the hourly rate by 8 hours. (See Fact Sheet: Computing Hourly Rates of Pay Using the 2,087-Hour Divisor.)

Biweekly Pay Limitation

Unless specifically authorized by an appropriation or other statute, an agency subject to chapter 51 and subchapter III of chapter 53 of title 5, United States Code, may not pay an expert or consultant for any biweekly pay period an aggregate amount of pay (including basic pay, locality pay, and premium pay) in excess of the biweekly rate of pay for GS-15, step 10, (excluding locality pay or any other additional pay). (See General Schedule pay tables.)

The biweekly rate is computed by dividing the annual GS-15, step 10, base rate (excluding locality pay or any other additional pay) by 2,087 hours to find the hourly rate of pay and by multiplying the hourly rate by 80 hours. (See Fact Sheet: Computing Hourly Rates of Pay Using the 2,087-Hour Divisor.)

Pay Adjustments

An employing agency has the authority to adjust the pay of experts and consultants after initial appointment and to establish appropriate policies governing the amount and timing of any such adjustments, subject to the daily and biweekly pay limitations.

In addition to the factors considered in determining the initial pay rate, the agency may consider factors such as—

  • Job performance;
  • Contributions to agency mission; and
  • General pay increases granted to other Federal employees.

Experts and consultants are not entitled to receive automatic adjustments in their rates of basic pay at the time of general pay increases under 5 U.S.C. 5303 unless specifically provided for in the official appointing document. In the absence of such automatic entitlement, any pay adjustments are at the agency’s discretion.

Employment Without Compensation

An expert or consultant appointed under 5 U.S.C. 3109 may be employed without pay, provided the individual agrees in advance in writing to waive any claim for compensation for those services. (See 5 CFR 304.102(h) and 5 CFR 304.104(c).)

Overtime and Other Premium Payments and Leave Benefits

Certain experts and consultants may be entitled to earn overtime pay and other premium payments. Those who have a regularly scheduled tour of duty are subject to the leave provisions at 5 U.S.C. chapter 63 and are entitled to paid holidays on the same basis as other Federal employees. Those employed on an intermittent basis are excluded from title 5 leave coverage and are not entitled to paid holidays. See 5 CFR 304.106 for additional information.

Status as Federal Employees

Experts and consultants appointed under 5 U.S.C. 3109 are considered to be Federal civil service employees under 5 U.S.C. 2105. (See 5 CFR 304.101.) Thus, they are generally covered by laws applicable to Federal employees, including laws related to compensation and leave, subject to any additional coverage conditions in the given law. (See 5 CFR 304.106.)

References

5 U.S.C. 3109
5 CFR part 304

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