This Section applies as follows:
General Schedule (GS) and Foreign Personnel (FP) that are Fair Labor Standards Act (FLSA) exempt (not covered) employees are subject to a biweekly limitation on premium pay.
Law enforcement officers are also subject to the same biweekly limitation on premium pay.
A non-exempt (covered) GS/FP employee's overtime pay is not subject to the limitation, but all other premium pay is covered.
Federal Wage System (FWS) employees are not subject to the limitation on premium pay.
Senior Executive Service and Senior Foreign Service employees do not earn premium pay.
Biweekly Maximum Limitation on Pay - General Rule
There is a biweekly pay limitation that limits the amount of premium pay that can be paid during a biweekly pay period for GS and FP FLSA exempt (not covered) employees. Due to 5 U.S.C. 5547 and Title 5, Code of Federal Regulations (CFR) § 550.105, the sum of basic pay and premium pay (under Chapter 55 of Title 5) is subject to a biweekly cap. Premium pay cannot be paid to employees (including law enforcement officers) if doing so would cause an employee's basic pay plus 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.
Note: If the employee is being paid a special rate under 5 U.S.C. 5305 or a locality-based comparability payment under 5 U.S.C. 5304, the rate for GS-15, step 10 will be similarly extended, i.e., it will be taken from the same salary table chart as the employee's base rate.
Non-Exempt GS and FP Overtime Pay Not Subject to the Biweekly Limitation
Overtime pay earned for FLSA non-exempt (covered) employees under (i.e., 29 U.S.C. 207 and 5 CFR Part 551) is excluded from the biweekly premium pay cap at 5 U.S.C. 5547 and 5 CFR 550.105 because it is paid under FLSA rather than Title 5.
However, the sum of basic pay and other forms of premium pay (under Chapter 55 of Title 5) may not exceed 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.
FWS Employees (Exempt or Non-Exempt) Not Subject to the Biweekly Maximum Pay Limitation
Since FWS employees are excluded from coverage of 5 U.S.C. 5547, they are not subject to the biweekly maximum limitation on premium pay.
Exceptions to the Biweekly Maximum Earnings Limitation for Emergencies and Mission-Critical Work
Heads of operating units or their designees may approve premium pay under the annual limitation, i.e., grant an exception from the biweekly maximum earnings limitation, for employees performing work directly connected with resolving or coping with an emergency or its aftermath, or if employee is needed to perform work that is critical to the mission of the agency (5 CFR 550.106). “Emergency” is defined as a temporary condition posing a direct threat to human life or property, including a forest wildfire emergency, e.g., natural disasters, such as hurricanes, tornadoes, floods, etc. (5 CFR 550.103). "Emergency" as used in the context of this paragraph does not apply to the regular duties of law enforcement officers.
Effective Date of Emergency Exception
The effective date of an exception is the first day of the pay period in which the emergency begins.
Calendar Year Limitation
In any calendar year for which an employee has been authorized premium pay under the annual limitation for performing emergency or mission-critical work, the employee may receive premium pay only to the extent that the aggregate of basic pay and premium pay for the calendar year does not exceed the greater of the annualized rate payable at the ed of the calendar year for:
- GS-15, step 10 (including any applicable locality payment or special rate supplement), or
- Level V of the Executive Schedule.
(See 5 CFR 550.107(d) regarding method of computing this annualized rate.)
Pay Projection Required
Managers authorized to approve premium pay under the annual limitation are responsible for projecting the affected employee's pay to ensure that the employee’s aggregate of basic pay and premium pay for the calendar year does not exceed the annual limitation described above, as the current payroll provider, the National Finance Center, does not calculate this limitation and stop an overpayment situation.
Expert and Consultant Limitation on Maximum Earnings
Unless specifically authorized by statute other than 5 U.S.C. 3109, the earnings of an expert or consultant appointed under 5 U.S.C. 3109, including base pay, premium pay, and locality pay may not aggregate in excess of the daily or biweekly rate for GS-15, step 10, on the General Schedule (excluding locality pay or any other additional pay). An expert or consultant paid a daily rate (as opposed to an hourly rate) is not entitled to overtime pay in any case (5 CFR 304.105).
Reviewed by OHRM, August 2020.
References: 5 CFR 550.103, 550.105, 550.106, 304.104; OPM Fact Sheet, “Overtime Pay, Title 5;” 5 U.S.C. 5547, 5 U.S.C. Chapter 55, 5 U.S.C. 3109