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Administratively Uncontrollable Overtime

Applicability 

General Schedule employees and Foreign Service Personnel employees are eligible to earn annual premium pay for administratively uncontrollable overtime (AUO).  Senior Executive Service, Senior Foreign Service, and Foreign Service Officer employees are ineligible.  Federal Wage System employees do not work administratively uncontrollable overtime. 

Definition 

AUO – Premium pay to an employee as a percentage of his or her annual rate of basic pay for hours of duty consisting of substantial amounts of irregular or occasional overtime work with the employee generally being responsible for recognizing, without supervision, circumstances which require him or her to remain on duty (Title 5, Code of Federal Regulations § 550.151). See the schedule in this Section for rates that may be paid. 

Authorization 

Supervisors/managers who are authorized to approve premium pay may approve payment of AUO.  Yearly, in January, these officials are responsible for assessing work requirements and reviewing records of actual overtime worked, determining the rate of premium pay payable from the schedule in this Section and designating those individuals who will receive it.  An employee may not be certified eligible to receive AUO retroactively.  An approving official is in violation of law if he or she certifies an employee’s eligibility for AUO when it is known that the employee is not performing hours of unscheduled work commensurate with the category for which he or she is being paid. 

Criteria for Rate Selection 

AUO must not be paid if it is not cost effective.  In order to be cost effective, annual premium pay for AUO must total less than the amount the employee would earn if he or she were paid at the appropriate overtime rate for actual hours of irregular or occasional overtime work required by the position.  In selecting a rate from the schedule in this Section, a supervisor/manager should consider prior year overtime requirements, new work requirements, and other reasonable considerations.  The rate selected will be paid even in pay periods when the employee is not required to work all of the hours on which payment is predicated, or, conversely, is required to work longer. 

Interpretation of Criteria

According to  5 CFR 550.153, the requirement that a position be one in which "the hours of duty cannot be controlled administratively" must be inherent in the nature of the position.  For example, the work hours of some U.S. Marshalls are governed by what criminals do and when they do it.  In a position of this type, the hours of duty cannot be controlled by hiring additional personnel or rescheduling the hours of duty. 

The requirement that an employee must be required to perform "substantial amounts of irregular or occasional overtime work" involves the following elements: 

A substantial amount of irregular or occasional overtime work means an average of at least 3 hours a week of that overtime work; 

  • The irregular or occasional overtime work is a continual requirement, generally averaging more than once a week; and 
  • There must be a definite basis for anticipating that the irregular or occasional overtime work will continue over an appropriate period with a duration and frequency sufficient to meet the requirements of this Section.  

The requirement that an employee is generally "responsible for recognizing, without supervision, circumstances which require him or her to remain on duty" means that: 

  • The responsibility for an employee to remain on duty when required by circumstances must be a definite, official, and special requirement of his or her position;
  • The employee must remain on duty not merely because it is desirable but because of compelling reasons inherently related to continuance of his or her duties, and of such a nature that failure to carry on would constitute negligence; and
  • The requirement that the employee is responsible for "recognizing circumstances" does not include such clear-cut instances as, for example, when an employee must continue working because a relief fails to report as scheduled. 

The words "require the employee to remain on duty" mean that: 

  • The employee is required to continue on duty in continuation of a full daily tour of duty or, that after the end of the regular workday, the employee resumes duty in accordance with a prearranged plan or an awaited event (performance of only callback overtime work does not meet this requirement); and 
  • The employee has no choice as to when or where he or she may perform the work when he or she remains on duty in continuation of a full daily tour of duty. (This differs from a situation in which an employee has the option of taking work home or doing it at the office; or doing it in continuation of his or her regular hours of duty or later in the evening. It also differs from a situation in which an employee has such latitude in working hours, as when in a travel status, that he or she may decide to begin work later in the morning and continue working later at night to better accomplish a given objective.) 

Schedule of Rates

According to 5 CFR 550.154, an eligible employee will be paid AUO as a percentage of his or her annual rate of basic pay as follows: 

  • A position which requires an average of at least 3 but not more than 5 hours a week of irregular or occasional overtime work--10 percent; 
  • A position which requires an average of over 5 but not more than 7 hours a week of irregular or occasional overtime work--15 percent; 
  • A position which requires an average of over 7 but not more than 9 hours a week of irregular or occasional overtime work--20 percent; or 
  • A position which requires an average of over 9 hours a week of irregular or occasional overtime work--25 percent. 

Payment Provisions

According to 5 CFR 550.162, except as otherwise provided in this Section, an employee begins to earn annual premium pay for AUO the day he or she enters on duty in the position concerned for basic pay purposes and ceases to have an entitlement when he or she ceases to be paid basic compensation in the position. 

Payment contingent on specified conditions.  When an employee is in a position in which the conditions warranting annual premium pay for AUO exist only during a certain period of the year, annual premium pay for AUO will be paid only during the period the employee is subject to these conditions. 

Temporary assignments and absence on paid leave.  An employee will continue to receive premium pay for AUO on an annual basis:

  • For a period of not more than 10 consecutive prescribed workdays on a temporary assignment to duties which do not warrant annual premium pay for AUO, and for a total of not more than 30 workdays in a calendar year while on temporary assignment; or 
  • For an aggregate of not more than 60 prescribed workdays on temporary assignment to a formally approved program for advanced training, directly related to the duties warranting AUO premium pay. 
  • If an employee is already receiving annual premium pay for AUO when authorized leave with pay, it will be continued for the period he or she is on leave as long as the criteria under which the premium pay was authorized continue to be met. 

Relationship to Other Payments 

Overtime, night, Sunday, and holiday pay.  According to 5 CFR 550.163, an employee receiving annual premium pay for AUO may not receive premium pay for irregular or occasional overtime or availability pay. 

The employee will be paid night, Sunday differential, holiday duty pay, and regularly scheduled overtime, as appropriate. 

However, hazardous duty pay may not be paid for hours of work that are compensated by payment of AUO pay, since AUO pay is provided in lieu of other types of premium pay except overtime, night, Sunday, and holiday pay (Title 5 United States Code §§ 5545(c)(2)).

Lump-sum leave payments.  Annual premium pay for AUO is included in the computation of lump-sum leave payments to the extent that the employee would have received annual premium pay had he or she remained in the service for the period covered by the lump-sum payment.

Benefits and deductions.  AUO is not considered base pay and will not be included in the base used to compute foreign and non-foreign allowances and differentials, or any other benefits or deductions that are computed on base alone.  AUO is only considered base pay for law enforcement officers, for purposes of retirement and TSP contributions (5 U.S.C. 8331(3)(D)).  It is not base pay for anyone else for any reason.  

Weekly overtime threshold.  Instead of a 40-hour weekly overtime threshold, the weekly overtime threshold is 42.75 hours (or 85.5 hours if a biweekly period is used).  For more information see "Annual Premium Pay Under Section 7(k) of FLSA."

Reviewed by OHRM, November 2019.

References: OPM Memorandum, “Guidance on Administratively Uncontrollable Overtime (AUO) Pay,” December 30, 1996; 5, CFR 550.151, 550.153, 550.154, 550.162, 550.163; 5 U.S.C. 5545(c)(2), 8331(3)(D).