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(See 5 CFR 551.216(a), 551.501(a)(5), and 551.541.)
Note: If an employee is covered by an alternative pay authority other than the title 5 provisions administered by OPM, a dual computation is required by 5 CFR 551.513. Thus, two overtime computations would be performed-one computation under the alternative pay authority and one computation under the FLSA rules-and the employee would be paid under whichever authority provides the greater overtime pay entitlement for the given workweek. In the case of such a dual computation, the applicable hours of work rules are separately applied in each computation. (This same dual computation method applied to employees covered by title 5 overtime rules until May 4, 1991, the effective date of OPM regulations implementing 5 U.S.C. 5542(c), as added by section 210 of the Federal Employees Pay Comparability Act of 1990. See 56 FR 20339 and 57 FR 59277.)
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Note: An employee may have a "shift" of 8.5 hours, including an unpaid meal break of half an hour. Under official terminology in OPM regulations, the employee's "tour of duty" for the workday is 8 hours, since the tour of duty encompasses only those hours that are in the employee's "regularly scheduled administrative workweek."
Under title 5 overtime rules, an employee is not credited with hours of work for a bona fide meal period during which the employee is completely relieved from duty. (See 5 CFR 550.112(m)(3).) If an employee's scheduled meal period is interrupted by a call to duty, the time spent on duty is hours of work. (See 5 CFR 550.112(m)(1).) Similar rules apply under FLSA. In general, bona fide meal periods, during which employees are completely relieved from duty by the agency, are not considered hours of work. (See 5 CFR 551.411(c). See paragraph 14 for exception dealing employees receiving AUO pay.)
Note: While an employee must have a substantial amount of irregular overtime with certain characteristics to qualify for AUO pay, once AUO pay becomes applicable it becomes the sole compensation under title 5 for ALL irregular overtime or occasional hours. (See 5 CFR 550.163(b). Note also that all irregular or occasional overtime hours are used in determining the AUO percentage under 5 CFR 550.154(a).) The type of hours needed to qualify for AUO pay (i.e., qualifying conditions in 5 CFR 550.153) are narrower than the type of hours compensated by AUO pay.
The terms "irregular or occasional overtime work" (often referred to simply as "irregular overtime") and "regularly scheduled overtime work" (or simply "regular overtime work") are defined to be mutually exclusive. Under title 5, an overtime hour must be either irregular or regularly scheduled. The following definitions are provided in 5 CFR 550.103:
Thus, for employees with a regularly scheduled administrative workweek, an overtime hour is either irregular or regularly scheduled based on whether the work was scheduled in advance of the employee's administrative workweek.
Note: The fact that an AUO employee does not need supervisory approval to perform irregular overtime work does not mean that the employee has a right to perform work when an authorized supervisor has given a direct order to cease working.
Under OPM's FLSA regulations, an employee's entitlement to time and one-half overtime pay under FLSA is met by providing the following payments, as provided in 5 CFR 551.512(a):
For most employees, the "straight time rate of pay" is the employee's hourly rate of pay for his or her position (exclusive of any premium, differentials or cash award or bonuses). However, for AUO employees, the straight time rate of pay is equal to basic pay plus AUO pay divided by the hours for which the basic pay plus AUO pay are intended. (See 5 CFR 551.512(b).) Thus, an AUO employee has received the straight time rate of pay for the hours for which basic pay and AUO pay are intended. In other words, the AUO employee has been paid once for hours covered by basic pay and AUO pay, leaving an agency with the obligation of straight time pay for any regularly scheduled overtime hours (not covered by AUO pay) plus a half-rate obligation for all overtime hours to meet the FLSA time-and-one-half overtime requirement. Thus, after taking into account the fact that an AUO employee has already received straight time pay for AUO hours, the employee's entitlement to FLSA overtime pay can be stated as follows:
Additional overtime pay due an AUO employee under FLSA = (Straight time rate x regularly scheduled overtime hours) + [(½ x hourly regular rate) x all overtime hours]
A GS-12, step 5, law enforcement officer in Washington, DC (2011 annual locality rate of $84,855 or $40.66 per hour) has a regular shift from 8 a.m. to 4:30 p.m. per day (including an 8-hour basic tour of duty and a scheduled unpaid, off-duty 30-minute meal period), Monday through Friday, receives administratively uncontrollable overtime (AUO) pay (25 percent of basic pay), works a total of 10 hours of irregular overtime compensated by AUO pay, and works 9 regularly scheduled overtime hours on Saturday (11:00 am - 8:00 pm, including a regularly scheduled on-duty meal period and 2 hours covered by night pay) in addition to the basic work schedule. In this example, FLSA overtime pay is computed on a weekly basis. (Note: Since the employee in this example is a law enforcement employee covered by section 7(k) of the FLSA, FLSA overtime pay could be computed on a biweekly pay period basis, if the agency so elects.)
1. Irregular overtime work could include irregular overtime work during a meal period, if that meal period was scheduled prior to the workweek as an off-duty break in working hours.
2. The 9 hours include 2 regularly scheduled overtime hours after 6:00 pm for which night pay is payable.
3. Irregular overtime hours compensated by AUO pay are not counted towards hours in excess of 8 in a day.
The employee is entitled to 16.25 hours of overtime pay under the FLSA, computed as follows:
There are 9 regularly scheduled overtime hours and 10 irregular overtime hours beyond the 40-hour basic workweek, but because the weekly overtime standard is 42.75, the overtime hours are 16.25 instead of 19.
* The straight time rate happens to equal the basic rate in this example. This is not generally the case. It occurred in this example because the employee had 10 irregular overtime hours which is exactly 25% of the 40-hour basic workweek and the AUO rate was also 25%.