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Eligibility of Premium Pay under Title 5 and FLSA

Exclusions from Premium Pay under Title 5 and the Fair Labor Standards Act (FLSA)

  • Secretarial Officers, members of the Senior Executive Service (SES), and other employees whose rates of pay are equal or exceed the maximum rate for GS-15 (Title 5, Code of Federal Regulations (CFR) 550.101(b));
  • Members of the Senior Foreign Service (FE) and Commissioned Foreign Service Officers (FO);
  • Commissioned Officers of the National Oceanic and Atmospheric Administration (NOAA);
  •  A vessel employee, i.e., an officer or member of the crew of a vessel of the NOAA whose compensation is fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates and practices in the maritime industry (5 U.S.C. § 5348); 
  • An employee of the NOAA engaged in the conduct of meteorological investigations in the Arctic region 15 U.S.C. § 327); and 
  • An employee engaged in the observation of radio propagation phenomena in the Arctic or Antarctic (15 U.S.C. § 278(e)).

Exclusions from FLSA Coverage

  • An employee who is "FLSA exempt", i.e., an employee who is not covered by the FLSA by virtue of meeting the professional, executive, or administrative exemption criteria of the FLSA; and 
  • An employee who would normally be "FLSA non-exempt" but who is exempt from the overtime provisions of the FLSA by virtue of being permanently stationed in an exempt area, i.e., in any foreign country or in any territory within the jurisdiction of the United States, not including a state of the United States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, Outer Continental Shelf Lands as defined in the Outer Continental Shelf Lands Act (67 Stat. 462), American Samoa, Guam, Commonwealth of the Northern Mariana Islands, Midway Atoll, Wake Island, Johnston Island, and Palmyra (5 CFR 551.104).

Foreign Exemption 

Foreign exemption means a provision of the FLSA under which the minimum wage, overtime, and child labor provisions do not apply to any employee who spends all hours of work in a given workweek in an exempt area.  When an employee meets one of the following two criteria, the foreign exemption applies until the employee spends any hours of work in any nonexempt area (5 CFR 551.212):

  • The employee is permanently stationed in an exempt area and spends all hours of work in a given workweek in one or more exempt areas; or
  • The employee is not permanently stationed in an exempt area, but spends all hours of work in a given workweek in one or more exempt areas.

Exempt area means any foreign country, or any territory under the jurisdiction of the United States, other than the following locations (5 CFR 551.104):

A State of the United States, the District of Columbia, Puerto Rico, the U.S.Virgin Islands, Outer Continental Shelf Lands as defined in the Outer Continental Shelf Lands Act (67 Stat. 462), American Samoa, Guam, Commonwealth of the Northern Mariana Islands, Midway Atoll, Wake Island, Johnston Island, and Palmyra.


Working in a Combination of Areas


The automatic foreign exemption is not applicable to an employee permanently stationed in an exempt area for any given workweek in which the employee performs any hours of work in any nonexempt area.  When this situation occurs, the employee’s exemption status must be determined based on whether the employee is performing the same duties in the exempt and nonexempt areas or different duties as described in 5 CFR 551.212(c)(1) and (c)(2).  The automatic foreign exemption does not resume until the employee meets one of the criteria above under “Foreign Exemption”. 


Exclusions from Title 5 Coverage


A Census enumerator paid on a piece-price basis under Title 13 U.S.C. § 24. 

 

Reviewed by OHRM, July 2020.

References: 5 CFR 550.101(b)); 5 CFR 551.104; 5 CFR 551.212; 5 U.S.C. § 5348; 
15 U.S.C. § 327; 15 U.S.C. § 278(e); 13 U.S.C. § 24