General Schedule (GS), or equivalent, employees are eligible to earn annual premium pay for regularly scheduled standby duty. Senior Executive Service, Foreign Service Personnel (FP), Foreign Service Officer, and Senior Foreign Service employees are ineligible.
Federal Wage System employees are ineligible for premium pay at an annual rate. They are paid at the usual hourly overtime rate or the Fair Labor Standards Act (FLSA) rate for actual hours worked (they do not receive pay for eating and sleeping time) in excess of 40 hours a week, for standby duty as defined here (Subchapter S8 of the Federal Wage System Operating Manual).
According to Title 5, Code of Federal Regulations § 550.141, standby duty is defined as a scheduled tour of duty that regularly requires an employee to remain at, or within the confines of, his or her station during longer than ordinary periods of time, a substantial part of which consists of remaining in a standby status rather than performing work.
Supervisors/managers authorized to approve premium pay may approve payment of annual premium pay for standby duty. Yearly, in January, these officials are responsible for assessing work requirements, 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. It is a violation of law to continue pay for standby duty when it is no longer cost effective or the job no longer requires it.
Basis for Rate
According to 5 CFR 550.141, standby duty is paid to GS employees at an appropriate percentage of that portion of the employee's rate of basic pay which does not exceed the minimum rate for GS-10, including any applicable special rate of pay for law enforcement officers or special pay adjustment for law enforcement officers under Section 302, 403, or 404 of the Federal Employees Pay Comparability Act of 1990, respectively; a locality-based comparability payment under 5 U.S.C. 5304; any applicable special rate of pay under 5 U.S.C. 5305 or similar provision of law.
This Section contains a schedule of rates. The supervisor/manager should select a rate based on the number of hours of standby duty as well as the hours of regularly scheduled overtime, night, Sunday, and holiday work required of the position. Annual pay for standby duty is in lieu of all other forms of premium pay except premium pay for irregular or occasional overtime work.
Criteria for Rate Selection
Annual premium pay for standby duty must not be authorized unless it is cost effective. It is cost effective if, over a period appropriate to reflect all the duties and conditions of the employee's position, annual pay for standby duty would provide the employee with: more than the premium pay which would otherwise be payable for the hours of actual work customarily required in the position, excluding standby time during which no work is performed; but less than the premium pay which would otherwise be payable for the hours of duty required in the position, including standby time during which no work is performed (5 CFR 550.142).
Interpretation of Criteria
According to 5 CFR 550.143, the requirement that an employee regularly remain at, or within the confines of his or her duty station must meet all of the following conditions:
- The employee must be officially ordered to remain at his or her duty station. The employee's remaining at his or her station must not be merely voluntary, desirable, or a result of geographic isolation, or solely because the employee lives on the grounds;
- The hours during which the requirement applies must be included in the employee's tour of duty. This tour of duty must be established on a regularly recurring basis over a substantial period of time, generally at least two months. The requirement must not be occasional, irregular, or for a brief period; and
- The requirement must be associated with the regularly assigned duties of the employee's job, either as a continuation of regular work which includes standby time, or as a requirement to stand by at his or her post to perform his or her regularly assigned duties if the necessity arises.
The words "regularly to remain at, or within the confines of, his or her station" mean one of the following:
- At an employee's regular duty station;
- In quarters provided by an agency, which are not the employee's ordinary living quarters, and which are specifically provided for use of personnel required to stand by in readiness to perform actual work when the need arises or when called; or
- In the employee's living quarters, when designated by an authorized official, and the:
- employee's whereabouts is narrowly limited;
- employee's activities are substantially restricted;
- employee is required to remain in his or her living quarters; and
- employee is required to remain in a state of readiness to answer calls for his or her services.
These conditions are so restrictive that an employee who performs standby duty under these conditions is working for purposes of Title 5 and FLSA.
The words "longer than ordinary periods of duty" mean more than 40 hours a week.
The words "a substantial part of which consists of remaining in a standby status rather than performing work" refer to the entire tour of duty. This requirement is met:
- When a substantial part of the entire tour of duty, at least 25 percent, is spent in a standby status which occurs throughout the entire tour;
- If certain hours of the tour of duty are regularly devoted to actual work and others are spent in a standby status, that part of the tour of duty devoted to standing by is at least 25 percent of the entire tour of duty; or
- When an employee has a basic workweek requiring full-time performance of actual work and is required, in addition, to perform standby duty on certain nights, or to perform standby duty on certain days not included in his or her basic workweek.
An employee is in a standby status when he or she is free to eat, sleep, read, listen to the radio, or engage in other similar activities. An employee is working when his or her attention is fully engaged in work even if this does not require any noticeable physical activity, e.g., observing instrument is not noticeable but it is work. Actual work includes work performed during regular work hours and work performed during time the employee is usually standing by.
Schedule of Rates
According to 5 CFR 550.144, annual premium pay for standby duty will be paid at one of the following percentages:
A position with a tour of duty of 24 hours on duty and 24 hours off duty and with a schedule of:
- 60 hours a week--5 percent, unless 25 or more hours of actual work is customarily required, in which event--10 percent;
- 72 hours a week--15 percent, unless 24 or more hours of actual work is customarily required, in which event--20 percent;
- 84 hours or more a week--25 percent.
A position with a tour of duty requiring the employee to remain on duty during all daylight hours each day, or for 12 hours each day, or for 24 hours each day, with the employee living at his or her duty station during the scheduled tour of duty, and with a schedule of:
- 5 days a week--5 percent, unless 25 or more hours of actual work is customarily required, in which event--10 percent;
- 6 days a week--15 percent, unless 30 or more hours of actual work is customarily required, in which event--20 percent;
- 7 days a week--25 percent.
A position in which the employee has a basic workweek requiring full-time performance of actual work, and is required, in addition, to remain on standby duty:
- 14 to 18 hours a week on regular workdays, or extending into a nonworkday in continuation of a period of duty within the basic workweek--15 percent;
- 19 to 27 hours a week on regular workdays, or extending into a nonworkday in continuation of a period of duty within the basic workweek--20 percent;
- 28 or more hours a week on regular workdays, or extending into a nonworkday in continuation of a period of duty within the basic workweek--25 percent;
- 7 to 9 hours on one or more of his or her regular weekly nonworkdays--15 percent;
- 10 to 13 hours on one or more of his or her regular weekly nonworkdays--20 percent;
- 14 or more hours on one or more of his or her regular weekly nonworkdays--25 percent.
Standby and Sunday Work
When an employee is paid one of the rates specified in this Section, the rate must be increased by adding: 2 ½ percent to the rate when the employee is required to perform Sunday work on an average of 20 to 40 Sundays over a year's period; or 5 percent to the rate when the employee is required to perform Sunday work on an average of 41 or more Sundays over a year's period, but the combined rate may not exceed 25 percent of the minimum rate of GS-10 (Title 5, CFR § 550.144).
Standby Duty and FLSA
The FLSA definition of standby duty is the same as the Title 5 definition. A non-exempt employee who performs standby duty will be paid for overtime hours under FLSA.
According to 5 CFR § 550.162, except as otherwise provided in this Section, an employee begins to earn annual premium pay for standby duty 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 standby duty exist only during a certain period of the year, annual premium pay for standby duty 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 annual premium pay for standby duty:
- 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 standby duty, 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 standby duty premium pay.
- If an employee is already receiving annual premium pay for standby duty 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 continues to be met.
Relationship to Other Payments
Regular overtime, night, Sunday, and holiday pay. According to 5 CFR 550.163, an employee receiving annual premium pay for regularly scheduled standby duty may not receive premium pay for regular overtime, night or Sunday differential, or holiday pay.
The employee may earn pay or compensatory time for irregular or occasional overtime work.
Benefits and deductions. According to 5 CFR 550.163, annual premium pay for standby duty 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. Standby pay is considered base pay for purposes of severance pay, subsistence and quarters, life insurance, and “basic pay” under 5 U.S.C. 8331(3).
Lump-sum leave payments. Annual premium pay for standby duty is included in the computation of lump-sum leave payments to the extent that the employee would have received annual premium pay for standby duty, had he or she remained in the service for the period covered by the lump-sum payment.
Reviewed by OHRM, November 2019.
References: Title 5, CFR 550.141, 550.142, 550.143, 550.144, 550.162, 550.163; Title 5 United States Code §§ 5304, 5305.