Many federal employees are entitled to time-and-one-half overtime pay under the Fair Labor Standards Act (FLSA). But federal agencies do not always comply with the law. This post will provide a list of questions to consider if you’re not sure whether you should be getting paid time-and-one-half.
1. Are you designated as exempt from the FLSA? If so, is your designation legally correct?
Under the law, some employees are “exempt” from the FLSA. Exempt employees may include supervisors, professional employees such as lawyers and doctors, and some employees who perform administrative functions such as accounting and HR.
On your SF-50, box 35 states whether you are exempt (E) or non-exempt (N). This information may also be on leave and earnings statements.
If you are non-exempt from the FLSA, you are entitled to time-and-one-half overtime pay. If you are exempt, then you are not covered by the FLSA.
But sometimes, federal agencies incorrectly designate people as exempt. These mistakes may arise because HR officials have misconceptions about what makes an employee exempt. For instance, some agencies wrongly assume that all employees above a particular pay grade, like GS-12, must be exempt. In other cases, coding errors may occur even when the agency recognizes that employees should be non-exempt.
Therefore, even if you are classified as exempt, you should consider whether that classification is incorrect. More information is available here.
If your position is correctly designated as exempt from the FLSA, you might still have a right to some form of overtime compensation, depending on your pay grade and other factors.
2. Is the work compensable?
Even for non-exempt employees, there can be questions about whether the employee is entitled to pay for certain activities. For example, employees may spend time answering calls or responding to emails on the weekend, but supervisors might discourage them from reporting that time on their time sheets.
Generally speaking, for a non-exempt employee, all work is “compensable” if the employer knows about it or allows it to occur. Employees should be paid for this work.
There are several categories in which federal agencies sometimes fail to pay employees for compensable work. These include time on work travel, which is sometimes compensable depending on the circumstances; time attending training; time performing work during meal breaks; and time responding to emails and calls after hours and on weekends as referenced above.
3. Did you voluntarily choose to receive compensatory time?
In some cases, employees receive compensatory time for overtime work instead of pay. However, for non-exempt employees, the agency must provide the employee a choice between pay and comp time. In fact, the law states that compensatory time can be granted only if the employee requests it. See 5 U.S.C. 5543.
In other words, if you are a non-exempt employee and you have not voluntarily chosen to receive compensatory time, you should get time-and-one-half overtime pay.
For more information, including citations to statutes, regulations, and OPM documents, visit our page on pay and overtime.