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Annual Premium Pay Under Section 7(k) of FLSA

Applicability 

Under Section 7(a) of the Fair Labor Standards Act (FLSA), overtime is defined as hours of work in excess of 40 in a week (Title 29 United States Code §§ 207(a)). 

Section 7(k) of the FLSA establishes a different overtime standard for FLSA non-exempt employees who receive premium pay for standby duty or AUO and who meet the following definitions (29 U.S.C. 207(k)): 

  • Fire protection employees who perform work properly classified in the Fire Protection and Prevention Series, GS-0081, including any firefighter who meets the GS-0081 qualifications who is assigned to perform support functions such as communications or dispatching functions, equipment maintenance or repair (Title 5, Code of Federal Regulations § 551.215(c)(2)(i)). 
  • Law enforcement officers who perform work properly classified in the GS-1811 Criminal Investigation Series, and other employees performing criminal investigation as their primary duty, except those deemed FLSA exempt by virtue of their being designated for availability pay (5 CFR 551.216). Employees who are primarily engaged in performing compliance inspections duties are also not covered by 7(k).  

Note: Those not covered by 7(k) are subject to the overtime provisions applicable to non-exempt employees.

Special Overtime Provision Under Section 7(k) Of The FLSA 

Employees who meet the definitions above may be compensated at the FLSA overtime rate for hours of a tour which are in excess of the following maximums: 

  • For employees engaged in fire protection activities: 53 hours in a work period of 7 days (or 106 hours if a biweekly period is used); 212 hours in a work period of 28 days; or in the case of any work period between 7 and 28 days, a proportionate number of hours in this work period. 
  • For employees engaged in law enforcement activities: 42.75 hours in a work period of 7 days (or 85.5 hours if a biweekly period is used); 171 hours in a work period of 28 days; or in the case of any work period between 7 and 28 days, a proportionate number of hours in this work period. 

Hours of Work Under Section 7(k) Of The FLSA 

Hours of work or tour of duty, as used in Section 7(k) of the FLSA, means all the time an employee is on duty, including scheduled and unscheduled periods and periods of paid leave (5 CFR 551.401). 

Scheduled period.  Means a scheduled shift or a scheduled period outside the shift. 

Unscheduled period.  Refers to the time spent in work by an employee outside the scheduled shift, e.g., time spent by police officers in court outside their scheduled shift. 

Sleeping and meal times.  In the absence of a collective bargaining agreement that says otherwise, sleeping and meal times are included in hours of work when the employee's tour of duty is less than 24 hours; sleeping and meal times are excluded from hours of work when an employee's tour of duty is more than 24 hours long.  Sleeping facilities must be adequate, and there must be at least 5 hours available for uninterrupted sleep in order for sleep time to qualify as such.  If any of these conditions are missing, the entire time is hours of work (5 CFR 551.432).

Work period.  Under Section 7(k) the work period must be at least seven days and not more than 28 days.  If a work period of less than 28 days is established, the maximum number of hours in the tour of duty before the requirement to pay overtime must be proportionate to the appropriate maximum number of hours requirement for the 28-day work period in effect for the calendar year. 

Example: An operating unit may establish a 28-day work period with 212 hours as the maximum number of hours before the requirement to pay overtime, a 14-day work period with 106 hours as the maximum number of hours before the requirement to pay overtime, a 7-day work period with 53 hours as the minimum number of hours before the requirement to pay overtime, etc. 

Ad Hoc Firefighters and Law Enforcement Officers 

An operating unit which uses non-exempt employees, other than those included in the definitions provided in this Section, to perform fire protection or law enforcement duties during an emergency situation must apply the 7-day work period for determining the percentage of total hours worked by these employees in fire protection or law enforcement duties and for applying the special overtime provisions of Section 7(k) of the FLSA.

Reviewed by OHRM, November 2019.

References: OPM Fact Sheet, “Guidance on Applying FLSA Overtime Provisions to Law Enforcement Employees Receiving Administratively Uncontrollable Overtime Pay;” OPM Retirement and Insurance Service Benefits Administration Letter “Firefighter Pay Reform Act, PL 105-277,” June 19, 2001; 29 U.S.C. 207(a), 207(k); 5 CFR 551.215(c)(2)(i), 551.216, 551.401, 551.432.