A law enforcement officer (LEO) is an employee whose duties are primarily the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of the United States; or protection of officials of the United States against threats to personal safety. These duties are sufficiently rigorous that they require young and physically vigorous individuals. A LEO is also an individual transferred directly to an administrative or supervisory position after performing the duties described above for a minimum of three years (Title 5, United States Code (U.S.C.) §§ 8331(20), 8401(17)).
LEOs, who qualify for overtime pay, are those who qualify for early retirement under 5 U.S.C. 8331(20) and 8401(17), and generally those whose positions have been approved by the Office of Personnel Management (OPM) for early retirement. For purposes of early retirement, a LEO is one who is eligible for early retirement under the Federal Employees Retirement System (FERS) or the Civil Service Retirement System (CSRS).
Biweekly Maximum Earnings Limitation
A Fair Labor Standards Act (FLSA) exempt (not covered) LEO may be paid premium pay. However, there is a biweekly pay limitation that limits the amount of premium pay that can be paid during a biweekly pay period. Premium pay cannot be paid to General Schedule employees, including law enforcement officers, to the extent that doing so would cause an employee's basic pay, overtime pay, the dollar value of compensatory time off, night pay, annual premium pay, Sunday premium pay, and holiday premium pay to exceed the greater of the biweekly rate for:
- GS-15, step 10 (including any applicable special salary rate or locality rate of pay), or
- Level V of the Executive Schedule.
FLSA exempt (not covered) LEOs – Overtime for an exempt LEO is all hours of work under Title 5 in excess of 8 in a day (daily standard) or 40 in a week (weekly standard).
An exempt LEO covered by sections 8331(20) or 8401(17) of Title 5 whose rate of basic pay exceeds the minimum rate for GS-10 (in accordance with 5 CFR 550.113), will be paid the greater of:
- The hourly rate of basic pay for their position, or
- One and one-half times the applicable minimum hourly rate of basic pay for GS-10.
Note: 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 under 5 CFR part 531, subpart F; special rate supplement under 5 CFR part 530, subpart C; retained rate under 5 CFR part 536; 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).
If the employee's rate of basic pay has been adjusted by locality-based comparability pay, the rate used in discussion of premium pay must be similarly adjusted, e.g., the rate for GS-15 (referenced in maximum earnings limitation and the rate for GS-10 referenced in overtime, compensatory time, or annual premium pay must be similarly adjusted, i.e., it must be quoted from the same salary chart as the employee's base rate).
Availability pay is a type of premium pay that is paid to LEOs who are criminal investigators and properly classified to the GS-1811 Criminal Investigator series. Each criminal investigator whose annual average of unscheduled duty hours is certified to be (or certified as expected to be) two hours or more per regular workday shall be deemed to have met the substantial hours of unscheduled duty requirement for entitlement to availability pay.
Due to the nature of their work, criminal investigators are required to work, or be available to work, substantial amounts of "unscheduled duty." By law, availability pay is fixed at 25 percent of a criminal investigator's rate of basic pay. However, the biweekly maximum earnings limitation for LEOs in 5 U.S.C. 5547(c) applies.
LEOs whose principal work comprises compliance checks and inspections are not eligible for availability pay.
Department Administrative Order
For more information on LEOs, please see Department of Commerce’s Administrative Order (DAO) 202-958, titled “Law Enforcement Officers and Firefighters.”
Link: DAO 202-958, Law Enforcement Officers and Firefighters.
Reviewed by OHRM, July 2020.
References: OPM Fact Sheet, “Overtime Pay, Title 5,” OPM Fact Sheet, “Availability Pay;” 5 U.S.C. §§ 8331(20), 8401(17)); 5 CFR 550.103, 550.113