Pay and overtime

Federal employees have the right to be paid in accordance with laws governing pay and overtime. For example, many federal employees are entitled to some form of overtime pay for hours in excess of 40 hours in a week. When employees are not paid in accordance with the law, they have a right to recover the lost pay, with interest or sometimes double damages.

In our experience, many federal agencies do not correctly apply the wage and overtime laws. As a result, the government has paid millions of dollars in settlements and judgments to current and former employees. We provide several examples towards the bottom of this page.

This page covers the following topics:

  1. Overview of pay and overtime systems
  2. FLSA exemptions
  3. FLSA overtime
  4. Title 5 overtime
  5. Comp time
  6. Other premium pay
  7. What hours count as work?
  8. Raising a claim for additional pay
  9. Example cases
  10. Resources for more information

The information on this page is current as of March 25, 2018.

1. Overview of pay and overtime systems

Employees covered by the Fair Labor Standards Act (FLSA). The Fair Labor Standards Act is the main wage and overtime law for employees in the private and public sector. If an employee is covered by the FLSA, that employee must be paid for every hour worked, including overtime hours, meaning hours exceeding 40 in a week. For overtime hours, these employees are entitled to time-and-a-half overtime, which we will refer to as “FLSA overtime.”

Federal employees are entitled to FLSA overtime unless they fall under a specific exemption, described in more detail below. If an employee falls under an FLSA exemption, the employee may be covered by a different overtime system.

Employees not covered by the FLSA. If an employee does not have a right to FLSA overtime, that employee may have a right to overtime pay under Title 5 of the U.S. Code, referred to as “Title 5 overtime.” Title 5 provides for overtime pay that is less generous than full time-and-a-half overtime in various ways (see below). But it still provides compensation, in the form of pay or comp time, for overtime hours that are “officially ordered or approved.” Title 5 also establishes other types of premium pay, such as night premium and Sunday premium. See more detail below.

Law enforcement and fire-protection employees. There are special rules that may apply to these employees.

First, most criminal investigators in the 1811 and 1812 series are covered by Law Enforcement Availability Pay, or LEAP. This system also applies to pilots in Customs & Border Protection and special agents in the Diplomatic Security System. (Source.) These employees are entitled to 25% premium pay, regardless of their hours worked. They also may be entitled to premium pay such as night premium for certain hours. However, they are not entitled to FLSA overtime.

Other law enforcement and fire-protection employees may be entitled to time-and-a-half overtime but have a different threshold for overtime, rather than 40 hours per week.

Many law enforcement employees may receive Administratively Uncontrollable Overtime, or AUO. An employee who receives AUO is not necessarily exempt from the time-and-a-half overtime requirement of the FLSA. In other words, an employee can receive both AUO and FLSA overtime. An employee who receives AUO may also be entitled to premium pay such as night premium for certain hours.

Employees in the legislative and judicial branches. Many employees of the legislative branch are entitled to FLSA overtime under the Congressional Accountability Act and regulations adopted by the Office of Compliance. This website contains more information about the Congressional Accountability Act. Employees of the judicial branch are entitled to FLSA overtime only if they are employed in a unit with positions in the competitive service. (29 U.S.C. 203(e)(2)(A)(iii))

2. FLSA exemptions

As noted above, the FLSA is the main overtime law for public and private sector employees. Federal employees are covered by the FLSA unless they clearly fall into a specific exemption. (5 C.F.R. § 551.202(b)) If an employee falls into an exemption, that employee may be entitled to overtime pay or comp time under Title 5. (See below.)

Your SF-50 states in Box 35 whether your agency has classified you as exempt (“E”) or non-exempt (“N”). This information may also appear in your leave and earnings statement. Keep in mind, however, that federal agencies sometimes wrongly classify employees as exempt from the FLSA. If you believe that you may be misclassified, you should consider consulting with an attorney or your union.

The following list provides an overview of several of the most common exemptions. For more information regarding the exemptions, review the fact sheets published by the Department of Labor.

  • Executive exemption: Broadly speaking, this exemption covers supervisors, i.e. employees who supervise two or more employees and participate in things like discipline or hiring.
  • Professional exemption: Broadly speaking, this exemption covers individuals such as doctors, lawyers, accountants, architects, scientists, and others, i.e. those who work in a recognized professional field that requires a prolonged course of specialized instruction. To determine whether an employee is a “professional,” courts look at whether the employer requires candidates for the position to have specific educational prerequisites.
  • Administrative exemption: Broadly speaking, this exemption covers individuals whose work contributes to the running of a federal agency and who have discretion as to important matters. For example, a court has held that the administrative exemption applies to an office manager who was responsible for preparing payrolls and tax estimates. Because this is one of most subjective exemptions, federal agencies often apply it wrongly to classify employees as exempt.
  • Computer worker exemption: Broadly speaking, this exemption covers individuals such as computer programmers and software engineers, i.e. highly skilled employees involved in the development of hardware or software systems, systems analysis, and similar tasks.

3. FLSA overtime

Unless an employee clearly falls into an FLSA exemption (see above), that employee has a right to time-and-a-half pay for overtime hours.

For example, if a federal employee covered by the FLSA works 45 hours in a week, that employee should be paid his or her regular salary for 40 hours as well as an additional 5 hours at 1.5 times his or her hourly pay rate. Although federal employees are paid every two weeks, FLSA overtime should be calculated separately for each week of work. For example, if an employee covered by the FLSA works 50 hours in the first week of a pay period and 30 hours in the second week of a pay period, the employee is generally entitled to 10 hours of overtime for the first week, even though he or she worked only 80 hours for the pay period.

In some cases, agencies try to require employees to take comp time instead of overtime pay. However, if an employee is covered by the FLSA, the agency must give the employee a choice between comp time and overtime pay, except in narrow circumstances. Further, if the employee decides to take comp time for overtime work, the employee must receive 1.5 hours of comp time for each hour of overtime. Finally, the employee must be permitted to cash out unused comp time after a year.

4. Title 5 overtime

As noted above, Title 5 of the U.S. Code establishes an overtime system that applies to most federal employees who are not covered by the FLSA. An employee’s overtime pay rate under Title 5 varies based on the GS level of the employee:

  • For employees below GS-10, step 1, the agency must pay time-and-a-half for overtime work.
  • For employees above GS-10, step 1, the agency must pay the higher of the following two rates: one-and-a-half times the pay rate for GS-10, step 1, or the employee’s own regular pay rate.

In all cases, an employee’s total pay per pay period, including overtime pay, is capped at the biweekly pay rate for a GS-15, step 10, employee or employee at level V of the executive service, whichever is higher. (Note that this cap does not apply to FLSA overtime.)

Under Title 5, employees must be paid for overtime work that is “officially ordered or approved.” There is some controversy about what it means for overtime work to be officially ordered or approved. If you are not sure whether this applies to your overtime work, you should consider consulting an attorney or your union.

An employee covered by Title 5 can be required to take comp time for some overtime hours if the employee is above GS 10, step 10. For more information, see below.

5. Comp time

Some agencies attempt to mandate that employees receive comp time for overtime work instead of additional pay. If an employee is covered by the FLSA, the agency cannot force the employee to receive comp time. Moreover, if an employee covered by the FLSA decides to accept comp time, the employee must be given 1.5 hours of comp time for each hour of overtime work. Further, the employee must be paid for unused comp time after a year.

If an employee is not covered by the FLSA, and the employee is above GS 10, step 10, an agency can require the employee to take comp time for certain overtime hours. These employees do not have a right to cash out unused comp time.

For more information, see the Office of Personnel Management (OPM) page on comp time. For information on travel comp time, see here.

6. Other premium pay

In addition to overtime pay under the FLSA or Title 5, federal employees may also be entitled to premium pay, such as Sunday premium and night premium. Premium pay is generally limited to regularly scheduled hours, meaning hours scheduled in advance of the work week. A federal employee who is scheduled to work at night or on the weekend is generally entitled to premium pay (whether or not the employee is exempt under the FLSA). There is a 10% premium for night hours and a 25% premium for Sunday hours.

 

7. What hours count as work?

Federal agencies sometimes fail to pay employees for all hours that should be compensated. For example, if an agency requires an employee to perform certain tasks at home, the agency may be required to pay overtime for those activities. (See an example here.) Similarly, if an agency requires employees to perform job duties during lunch, the agency may be required to pay overtime for the employees’ lunch periods. (See an example here.)

Travel time on work trips may or may not count as work time, depending on the circumstances and whether the employee is covered by the FLSA or not. The OPM website contains more information.

If you have a question about whether you should be paid for some of your time, consider consulting a lawyer or your union.

8. Raising a claim for additional pay

There are several ways a federal employee may be able to raise a claim for additional pay.

First, if you are covered by a union collective bargaining agreement (CBA), then you may be able to pursue a claim through a grievance procedure in the CBA. The union can provide more information on this process and may provide assistance and representation with your claim.

Second, if your claim involves denial of overtime pay under the FLSA, you can file the claim with OPM. The instructions for filing an OPM claim are here. You can designate an attorney to represent you with respect to your OPM claim, but you do not need an attorney to file a claim with OPM.

Finally, most pay claims can be brought in court.  For claims seeking more than $10,000, the employee must file in the U.S. Court of Federal Claims. This court, located in Washington, D.C., was established to hear claims against the federal government for damages. During fiscal year 2017, for example, there were nearly 90 cases pending in the court regarding the pay of federal civilian employees, many covering groups of employees. (Source) For claims seeking less than $10,000, the employee can choose to file in the Court of Federal Claims or in a local federal court. If you are considering filing a claim in court, you should consult an attorney.

9. Example cases

There are many cases in which federal employees have succeeded in claims against the federal government arising from pay and overtime issues. This section provides a few examples.

Almanza v. United States (2017). Nearly 300 employees of Customs & Border Patrol claimed that they should have been paid for time they spent studying outside of normal work hours while taking a training course. Approximately 90 of the employees reached a settlement with the government for $1.7 million, or about $20,000 per employee.

Havrilla v. United States (2016). Five civilian employees of the Navy claimed that they should be paid for their lunch break because they were required to remain at their work site and perform tasks during lunch. The court ruled in their favor.

U.S. Department of State employees (2015). More than 4,000 Department of State employees brought a claim through their union that they were wrongly classified as exempt from the FLSA and should have been paid time-and-a-half overtime. The claim was settled for $39.9 million.

Adams v. United States (2007). Approximately 45 employees of the U.S. Department of Housing and Urban Development claimed that they were wrongly classified as exempt from the FLSA and should have been paid time-and-a-half overtime. The court ruled in their favor.

Bull v. United States (2005). 60 employees of the U.S. Department of Homeland Security claimed that they should be paid for activities they were required to do at home, such as washing towels used to train dogs. The court ruled in their favor and awarded them backpay for an additional 3-4 hours per week.

 

10. Resources for more detailed information

  • The Office of Personnel Management, or OPM, publishes information regarding pay and benefits for federal employees. The OPM website contains more information regarding many of the topics discussed on this page.
  • The Department of Labor publishes “fact sheets” that provide useful information regarding the FLSA.

[Image from Flickr user Tax Credits.]