The section applies to General Schedule (GS) or equivalent employees who are assigned to positions properly classified to the GS-1811 Criminal Investigator series. The investigator must meet the definition of law enforcement officer (LEO) for purposes of early retirement under 5 U.S.C. §§ 8331(20) and 8401(17). This will be reflected in assignment to a LEO position description that satisfies the work requirements for LEO early retirement.
A criminal investigator is entitled to availability pay if he or she holds a supervisory or administrative position that has been officially approved as a “secondary position” under the LEO retirement provisions, even if the criminal investigator is not personally covered by them.
Any Office of Inspector General that employs fewer than five criminal investigators may elect not to cover such investigators under the availability pay provisions of 5 U.S.C. § 5545a.
The head of a bureau/operating unit (OU) or other delegated authority may authorize annual premium pay at the rate of 25 percent of a criminal investigator's rate of basic pay to ensure the availability of the criminal investigator for “unscheduled duty hours” in excess of the 40-hour workweek.
Rate of basic pay includes any applicable special pay adjustment for LEOs under sections 302 and 404 of the Federal Employee’s Pay Comparability Act of 1990 (P.L. 101-509), or locality-based comparability payment under 5 U.S.C. § 5304, before any deductions, and exclusive of additional pay of any kind.
Availability hours are hours outside the investigator’s 40-hour workweek during which an investigator is placed in availability status by being directed to be available during designated periods to meet agency needs. Placing the investigator in availability status is not considered scheduling the investigator for overtime hours. Availability hours may also include hours during which an investigator places himself or herself in availability status to meet the needs of the agency (Title 5, Code of Federal Regulations (CFR) 550.182(d)).
Overtime work is work scheduled in advance of the administrative workweek and in excess of 10 hours on a day containing hours that are part of the investigator's basic 40-hour workweek; or, on a day outside the basic workweek (5 CFR 550.111(f)(1)).
Rate of basic pay means the rate of pay fixed by law or administrative action for the position held by an employee including any applicable locality payment, special rate supplement, or similar payment or supplement under other legal authority, before any deductions, and exclusive of additional pay of any other kind (5 CFR 550.103).
Note: Employees covered under the Commerce Alternative Personnel System (CAPS) do not receive a separate basic pay and locality pay computation as do GS employees. CAPS employees have locality pay already included in their basic pay computation.
Regular workdays means each day in a criminal investigator’s basic workweek during which the investigator works at least 4 hours, excluding overtime, unscheduled duty hours compensated by availability pay, and hours in which the investigator is in training, performing official travel, using approved leave or excused absence (sometimes called administrative leave), and paid holidays (5 CFR 550.183(b)).
Unscheduled duty hours are those hours during which a criminal investigator performs work, or is determined by the employing agency to be available for work, that are not part of the 40-hour basic workweek of the investigator; or, regularly scheduled overtime hours (5 CFR 550.182 (a)).
Substantial Hours Requirement
Each criminal investigator whose annual average of unscheduled duty hours is certified to be (or certified as expected to be) 2 hours or more per regular workday shall be deemed to have met the substantial hours of unscheduled duty requirement for entitlement to availability pay. This average will be computed by dividing the total unscheduled duty hours for the annual period (numerator) by the number of regular workdays (denominator) (5 CFR 550.183(a)).
It shall be management’s responsibility to ensure that every criminal investigator’s unscheduled hours of duty are sufficient to meet the substantial hours requirement. This will generally be accomplished by placing the investigator in availability status. Moreover, while availability pay may be based on some hours of unscheduled duty (on a regular workday) during which no work is performed, to the extent feasible each criminal investigator shall perform actual work as opposed to merely being available for work.
Voluntary Opt Out
A criminal investigator may make a written request that no overtime work (including unscheduled duty) be assigned for a designated period of time because of personal or family hardship, e.g., a serious continuing illness that requires the investigator to care for a family member. At management’s discretion, the investigator may be required to provide appropriate justification, e.g., medical certification of the illness that supports the need to be relieved of overtime work including unscheduled duty. In opting out, the investigator must attest in writing to the understanding that availability pay will not be paid for the period of opt out. An extension of the opt-out period may be granted at management’s discretion (5 CFR 550.182(f)).
Initial certification. On the day of appointment, or on completion of officially approved initial training, the investigator and a management official with delegated authority shall make an initial certification to the head of the agency that the investigator is expected to meet the substantial hours’ requirement during the next 12 months. The sample provided at the end of this section may be used for this purpose as well as for the annual certification required in the heading below. A similar certification will be made for a criminal investigator who will begin receiving availability pay after a period of nonreceipt (5 CFR 550.184(a)).
Annual certification. Annually, each criminal investigator and a manager with delegated authority shall make an annual certification to the head of the agency that the investigator currently meets and is expected to continue to meet the substantial hours’ requirement in the upcoming 12 months (5 CFR 550.184(b)). It is the Department of Commerce’s policy that the annual certification be completed on or about October 1 of each year.
Starting and stopping availability pay. An authorized official may start or stop availability pay by submitting a Standard Form (SF)-52, “Request for Personnel Action” for processing. If a certification is issued belatedly or lapses due to administrative error, the situation may be corrected retroactively. Partial payments may also be authorized and paid.
When certification no longer applies. A certification no longer applies when an investigator leaves Federal service, is employed by another agency, moves out of a qualifying position, or opts out (5 CFR 550.184(c)).
Suspension of Certification
Management may suspend or deny certification if a criminal investigator fails to perform scheduled duty that is assigned, which the investigator reports as worked, or which the investigator is unable to perform for a period of time because of health reasons. If certification is cancelled or denied, the investigator’s entitlement to availability pay will be suspended for an appropriate period of time. If a criminal investigator appeals the suspension or cancellation of certification, the original certification shall be made part of the appeals file (5 CFR 550.184(d)).
Appeal of a Suspension of Availability Pay
An involuntary suspension of availability pay resulting from a denial or cancellation of certification shall be deemed a reduction in pay under 5 U.S.C. § 7512, and shall be effected under adverse action procedures. An investigator whose certification is cancelled with involuntary suspension of availability pay may appeal the action following negotiated or agency adverse action appeals procedures, as appropriate (5 CFR 550.184(e)).
Payment of Availability Pay
Availability pay will be paid for any period during which the investigator receives basic pay, including periods of approved training, authorized travel, approved leave with pay (including military and court leave), or on excused absence with pay for relocation purposes.
At management’s discretion, availability pay may be paid during basic training provided in the first year of service and for periods of excused absence with pay (e.g., in an evacuation or prolonged facility closure) with the exception that payment is mandatory during a period of excused absence for relocation (5 CFR 550.185).
Relationship to Other Payments
Night, Sunday, and holiday pay. The amount of availability pay is not affected by a holiday during the pay period. By definition, Sunday pay and night differential may not be based on availability hours (5 CFR 550.185 and 5 CFR 550.186).
Premium pay. Standby duty pay and administratively uncontrollable overtime may not be paid to a criminal investigator receiving availability pay. Receipt of availability pay does not affect an investigator’s entitlement to other types of premium pay (including overtime pay under 5 CFR 550.111) based on hours other than unscheduled duty hours. However, an investigator receiving availability pay may not be paid any other premium pay based on unscheduled duty hours (5 CFR 550.186(a)).
Limitation on premium pay. Availability pay is subject to the maximum amount that may be paid to avoid exceeding the maximum earnings limitation on premium pay for LEOs in 5 U.S.C. § 5547(c), and the aggregate limitation on pay (5 U.S.C. § 5307). (See 5 CFR 550.185(a)(2)).
Basic pay. Availability pay shall be considered part of basic pay only for the following purposes: advances of pay, severance pay, worker’s compensation, retirement benefits, the Thrift Savings Plan, and life insurance (5 CFR 550.186(b)).
Lump-sum leave payments. Availability pay is included in the computation of lump-sum leave payments to the extent that the employee would have received annual premium pay had they remained in the service for the period covered by the lump-sum payment.
Miscellaneous. Availability pay is subject to garnishment for child support and alimony (5 CFR 581.103), and garnishment for commercial debts (5 CFR 582).
The minimum wage and hours of work and overtime pay provisions of the Fair Labor Standards Act (FLSA) does not apply to investigators receiving availability pay (5 CFR 550.186(c)).
Reviewed by OHRM, March 2020.
References: OPM Fact Sheet, “Availability Pay”; OPM Fact Sheet, “Lump-Sum Payments For Annual Leave”; 5 CFR 550.111(f)(1); 5 CFR 550.181–550.186.
Criminal Investigator's Certification
I understand that as a condition of receiving availability pay under 5 U.S.C. § 5545a, I will be required, over the course of the next 12 months, to average not less than 2 hours of unscheduled duty per regular workday. I understand that failing to average at least 2 hours of unscheduled duty per regular workday could result in an overpayment, and that hours of work which are misreported or not performed when scheduled could result in adverse action and decertification for availability pay.
Investigator's Signature and Date
Supervisor's Signature and Date
Supervisory/Managerial Certification – Annual
This certifies that, over the course of the last 12 months, the criminal investigators whose certifications are attached met all requirements for availability pay.
I expect the criminal investigators whose certifications are attached to average at least 2 hours of unscheduled duty per regular workday.
Signature and Date