Applicability

This information applies to all employees except Senior Executive Service and Senior Foreign Service employees, and any person whose pay is in excess of GS-15, step 10.  
 

Secretarial officers, Senior Executive Service employees, and equivalents.  Under law (5 U.S.C. 5542 and 5547) Secretarial officers, members of the Senior Executive Service, the Senior Foreign Service, Foreign Service officers, and persons whose pay is in excess of GS-15, step 10, may not be paid premium pay.

General Rules 

The following general rules apply regardless of the authority under which overtime is earned:

Part-time and intermittent employees have the same overtime entitlement as full-time employees. 

Overtime Work.  Is work in excess of an administrative workweek (i.e. work in excess of 8 hours in a day or in excess of 40 hours) (5 Code of Federal Regulations (CFR) § 550.111(a)).  

Mutual exclusion.  Hours of work which are counted as overtime hours in excess of eight in a day cannot also be counted for hours in excess of forty in a week (5 CFR 550.111(a)).  

Hours of paid leave.   Hours of paid leave taken during the employee's basic workweek count as hours of work for purposes of meeting the daily or weekly overtime standards.  An employee's absence from duty on authorized leave with pay during the time when they would otherwise have been required to be on duty during a basic workweek is deemed employment and does not reduce the amount of overtime pay to which the employee is entitled during an administrative workweek (§550.112(c)).  

This includes:

• Sick leave
• Annual leave
• Military leave
• Court leave
• Home leave
• Shore leave
• Holidays
• Time on continuation of pay
• Periods of excused absence with pay.  However, excused absence with pay may not be granted in excess of an employee's base hours thereby providing the employee with an overtime entitlement.

Hours of leave without pay (LWOP) – A period of leave without pay in an employee’s basic workweek or in an employee’s daily tour of duty, must be made up for outside of the basic workweek, but in the same administrative workweek; or outside of the daily tour of duty but in the same workday, as applicable, before any remaining period of service may be paid for at the overtime rate on the basis of exceeding 40 hours in a workweek or exceeding 8 hours in a workday, as applicable (5 CFR 550.112 (d)(1) and (d)(2)).

Overtime Standards 

Daily and weekly standard.  Title 5 provides a daily and a weekly overtime standard.  Under Title 5, overtime is hours of work authorized or approved by management in excess of 8 in a day or 40 in a week (5 CFR 550.111(a)).  Title 5 overtime standards and conditions of overtime apply to Fair Labor Standards Act (FLSA) non-exempt (covered) and exempt (not-covered) employees. 

FLSA standard.  The FLSA overtime standard equals hours of work in excess of 40 in a week.  Any condition which is hours of work solely under FLSA counts against the weekly standard only and will affect non-exempt (covered) employees exclusively (5 CFR 551.501).  

A non-exempt (covered) employee cannot be paid overtime on the basis of hours in excess of 8 in a day for performing hours of work which meet the criteria for overtime solely under FLSA since the FLSA overtime standard is a weekly standard.  No employee can be paid overtime in excess of the daily standard for hours of work which count against the weekly overtime standard only. 

First 40-hour work schedule.  Overtime hours, for an employee for whom the first 40 hours is the basic workweek, comprise all hours of work officially ordered or approved in excess of the first 40 hours in the administrative workweek, provided the employee is either a:

• General Schedule (GS)/equivalent or Foreign Personnel (FP) employee performing professional or technical, engineering or scientific activities (duties of a professional or support technician position in the physical, mathematical, natural, medical, or social sciences or engineering or architecture; or
• GS/equivalent or FP employee with a rate of basic pay in excess of the minimum of GS-10 (including a locality-based comparability payment under 5 U.S.C. 5304; special pay adjustment for law enforcement officers under section 403 or 404 of the Federal Employees Pay Comparability Act of 1990, respectively; and any applicable special rate of pay under 5 U.S.C. 5305 or similar provision of law). 

All GS/equivalent and FP employees not included under the heading above and all Federal Wage System employees may be assigned to a first 40-hour tour of duty as the work demands, but there is no monetary savings since they must be compensated at their overtime rate for all hours in excess of the daily or weekly overtime standard.

Flexible alternative work schedules (AWS) – For employees under a flexible work schedules (FWS), a special definition of overtime applies, at 5 U.S.C. 6121(6).  This definition of overtime, for FWS purposes, means that the overtime must be “officially ordered in advance.”  Essentially, this FWS definition rules out any “suffered or permitted” overtime under the FLSA, for non-exempt (covered) employees who work a flexible work schedule.  Under 5 U.S.C. 6121(4), work done at the election (i.e. choice) of the employee, not management, are credit hours, not overtime hours.

Compressed AWS – Overtime hours are those which are officially ordered or approved, not withstanding the standard FLSA hours of work rules (for non-exempt employees) that would normally credit "suffered or permitted" hours and are in excess of those specified hours for full-time employees that constitute the compressed work schedule.  For part-time employees, overtime hours are hours in excess of the compressed work schedule for a day (but must be more than 8 hours) or, for a week (but must be more than 40 hours).

Overtime standard for certain law enforcement officers and firefighters under Section 7k of the FLSA.  FLSA establishes a higher overtime standard for FLSA non-exempt (covered) law enforcement officers and firefighters who are subject to Section 7(k) of the FLSA.  For certain law enforcement officers, (not including those earning availability pay or those engaged in compliance work) the weekly overtime standard is 42.75 hours in a work period of 7 days; and for firefighters, the weekly overtime standard is 53 hours in a work period of 7 days. 

For more detailed information, see the pay policy title, “Annual Premium Pay Under Section 7(k) of FLSA.”

What Time is Credited as Overtime 

Overtime work must be performed for there to be an overtime entitlement (usually).  Whether regular or irregular overtime is performed in advance of (or at the completion of) the employee's scheduled daily tour (or basic workweek) is immaterial if the overtime work is performed and the daily (or weekly) overtime standard is met.  

The employee who has not performed work in excess of their base hours may not preserve an overtime entitlement by substituting leave or excused absence with pay for the overtime work which was not performed.  In addition, just because the employee was scheduled to perform overtime, which is paid at the hourly overtime rate, does not entitle the employee to overtime.  Regular or irregular overtime which the employee does not have the opportunity to perform because a closing is announced before the daily overtime standard is met is deemed canceled.  

The general rule that paid absence during the basic workweek when an employee must perform overtime work in order to be paid for it is subject to these exceptions: 

• Pay for regularly scheduled overtime and annual premium pay will be continued when an employee is absent due to a training assignment.
• An employee may take compensatory time off during a period of regularly scheduled overtime in compensation for irregular or occasional overtime work.
• Premium pay on an annual basis for standby work, administratively uncontrollable overtime, or availability pay will be continued when the employee is in a paid leave status and may be continued when the employee is granted excused absence with pay at management's discretion.

Hours of work applicable to both standards.  Hours of work which can be counted by exempt (not covered) and non-exempt (covered) employees in excess of the daily or weekly overtime standards include any overtime under Title 5 that is payable at the employee's hourly overtime rate, e.g., irregular or occasional overtime, including call-back overtime and regularly scheduled overtime; authorized travel which is performed in excess of the overtime standards which also meets the criteria for hours of work under the pay policy title “Compensable Overtime Travel;” and training during overtime which meets the criteria for hours of work under the pay policy titled “Premium Pay and Training.” 

Hours of work in excess of the weekly standard only.  Hours of work deriving from Title 5 which count against the weekly standard exclusively for exempt (not covered) and non-exempt (covered) employees include any hours of work paid at the annual premium pay rate, i.e. regularly scheduled standby duty, administratively uncontrollable overtime, or availability duty. 

For a non-exempt (covered) employee, hours of work counting against the weekly standard include all hours mentioned above and three conditions which are hours of work deriving solely from FLSA: (1) suffered or permitted work, (2) travel as a passenger to and from a temporary duty station (not including travel between home and the normal duty station), and (3) overnight travel during hours on non-workdays which correspond to regular working hours. 

Note: Whether overtime work performed by an employee satisfies the Title 5 and FLSA weekly standard or the Title 5 daily standard is important if a non-exempt (covered) employee's overtime entitlement is being manually calculated.  Assigning overtime to the “over 8” or “over 40” categories is important because it is possible for a non-exempt (covered) employee to have worked only 40 hours total, appearing to have no overtime entitlement under FLSA, but have performed a category of overtime which counts for hours over 8 under Title 5, and therefore, for that employee to have overtime for which payment must be made at the FLSA overtime rate.  

Crediting Suffered or Permitted Work (non-exempt employees)

Suffered or permitted work only applies to non-exempt (covered) employees and means any work performed by an employee for the benefit of an agency, whether requested or not, provided the employee's supervisor knows or has reason to believe that the work is being performed and has an opportunity to prevent the work from being performed (5 CFR 551.104).  Suffered or permitted work, and work the employee is induced to perform by virtue of the situation in which they are placed by management's requirements, are concepts exclusive to the FLSA and, therefore, only of concern in counting hours of work for non-exempt (covered) employees.  

A non-exempt (covered) employee must be compensated for any work which is not ordered or scheduled which they perform in excess of 40 hours in an administrative workweek if the supervisor is or has reason to be aware of it, has the opportunity to prevent it, and fails to act.

The concept of suffered or permitted work does not apply to overtime for non-exempt (covered) employees who participate in the flexible work schedule program.  For all practical purposes, in the rare cases of suffered or permitted overtime work, this work is only possible when employees are under a fixed, typically standard (40), work schedule.

Overtime and Daylight Savings Time 

When time is officially changed (as from standard to daylight savings time) during an employee's working hours, the employee must be credited with the actual amount of overtime, night, holiday, and Sunday work, if any is performed during that period.  If the employee loses a non-overtime hour, the employee must be charged leave unless the authorizing official approves an employee's request to work an extra hour to avoid the involuntary charge to leave.

Premium Pay Discontinued 

Except as noted in this pay policy, premium pay will be discontinued when an employee is not in a pay status since the work and earnings on which premium pay is based have ceased.

 

Reviewed by OHRM, September 2020.

References: 5 CFR 550.111, 550.112, 551.501, 551.104; OPM Fact Sheet, “Premium Pay (Title 5), OPM Handbook on Alternative Work Schedules