One of the many questions that come up when a Federal employee thinks or talks about overtime is when do I earn overtime pay and when do I earn compensatory time off? In this article I’ll try to clarify when a Federal employee is eligible for overtime pay and when she or he is eligible for compensatory time off (also called comp time). I also want to touch briefly on the options an employee has if she or he receives neither overtime pay nor comp time when overtime has been worked.
Let’s start by defining what we mean by overtime work. For most Federal employees overtime work means work that exceeds eight hours in a day or 40 hours in a week. There are a number of exceptions to this general rule including those covered by flexible and compressed work schedules, those who are law enforcement officers, and a few other groups1. But generally this is the case. So if you’ve worked more than eight hours in a day or 40 hours in a week you probably have worked overtime as long as the time has been approved by your supervisor and the activities you performed meet the requirements as time for which you can be compensated2.
For the sake of clarity, let’s also define what we mean by compensatory time off. It is important to talk about this because compensatory time off may have different meanings for those who work for the Federal Government, people who work in private industry, and those who work in state or local government offices or in other organizations. Comp time for the Federal employee is one paid hour off for each hour of irregular or occasional overtime that has been worked. For example, if you work three hours of irregular overtime on Saturday, a day you routinely have off, then you may be compensated with three hours of paid comp time off.
Ok, you may ask, so I’ve worked more than eight hours in a day or 40 hours in a week, what do I get: comp time or overtime pay? As with so many things connected with Federal pay, the answer is: it depends. If the overtime is regularly scheduled, that is it was added to your work schedule before the workweek began, then you will receive overtime pay. But if the overtime is irregular, then you may have a choice. Remember that irregular overtime is additional work added to your work schedule during the workweek in which you actually perform the work. For example, if on Tuesday morning your supervisor assigns you to work four extra hours on Thursday after the end of your regular shift, your supervisor is assigning irregular overtime for you to work.
Thursday afternoon you work the four additional hours after the end of your regular shift. How do you know if you’ll get the four hours of comp time off? You probably know the answer to this question: it depends! Ok, so what does it depend on? First, it depends on whether you are coded as FLSA Exempt or FLSA Nonexempt3. If you are covered by the Fair Labor Standards Act, that is FLSA Nonexempt, then you have a choice about whether you will receive overtime pay or comp time4. A supervisor may suggest taking comp time to you as an FLSA Nonexempt employee, but you have the right to choose the comp time or to choose overtime pay for the irregular overtime you worked on Thursday. Gee, that’s not too bad: an FLSA Nonexempt employee who has worked irregular overtime can request comp time off.
What if you are an FLSA Exempt employee? Then the situation is a little different. If you are an FLSA Exempt employee and your salary is more than the salary for a GS-10 step 10 in your locality, then your supervisor may direct you to take comp time rather than receive overtime pay. Under the regulations a supervisor has the right to tell an FLSA Exempt employee whose salary is more than that paid to a GS-10 step 10 to take comp time rather than to get overtime pay. However, an FLSA Exempt employee and your salary rate is less than that paid to a GS-10 step 10 in your locality, then you may request comp time instead of overtime pay for the irregular overtime work (See the regulation at 5 C.F.R. § 550.114(c).).
The last topic I want to touch on is your options if you believe you have worked overtime, but your agency does not provide either comp time or overtime pay. If you performed work assigned or approved by your supervisor and it caused you to put in more than eight hours in a day or 40 hours in workweek, you are on neither a compressed nor a flexible work schedule, and you don’t receive either comp time or overtime pay, what can you do?
My first recommendation always is to talk with your supervisor and your timekeeper. It may have been an oversight or a mistake that is easy to fix.
If you don’t think the question has been answered properly, then my second recommendation is talk with your human resources (HR) office or your payroll staff. Both groups have knowledgeable individuals who should be able to explain why you are or are not eligible for compensation for the additional hours.
If you go to HR or the payroll staff, be sure to lay out the facts clearly so that the specialist will understand the situation. Writing out the details can be helpful; you may want to include such information as when the work was assigned to you, when you performed the work, what the work assignment entailed, and so forth to help the specialist understand the work situation.
When these approaches don’t resolve the situation to your satisfaction, then you have the right to file a claim either through the negotiated grievance procedure, if covered by a bargaining unit agreement, or with the HR office, your Department’s HR staff or with the U.S. Office of Personnel Management. Be sure to follow the appropriate procedure when filing a claim to be sure that it will get to the right group of people responsible for resolving such claims.
In summary, this article has tried to clarify when you may receive comp time and when you may receive overtime pay. When the overtime was regularly scheduled you will receive overtime pay. If it was irregular overtime, then you may have a choice about comp time or pay. FLSA Nonexempt employees may choose comp time for irregular overtime work. FLSA Exempt employees may be directed to take comp time for the irregular overtime if their salaries are more than the rate paid to a GS-10 step 10, while FLSA Exempt employees whose salary is less than that paid to a GS-10 step 10, you may request comp time instead of being paid for the irregular overtime you worked.
After the publication of my article on night pay I was reminded by a specialist at APHIS/USDA that employees on flexible work schedules who work between the hours of 6 p.m. and 6 a.m. can receive night differential if those are the only hours that they can work. For example, an Animal Health Technician may have to work at a horse show in the evening. Since the hours cannot be altered, the employee would qualify for night differential.
- For those on flexible work schedules (FWS), overtime is all time officially ordered by management in advance of being performed. Time voluntarily worked by those on FWS typically is not overtime. For those on compressed work schedules (CWS), overtime is all time officially ordered and approved that exceeds the employee’s compressed work schedule. For example, an employee who works 4 ten hour days is working overtime when ordered or approved to work an 11th and 12th hour after completing his or her regular 10 hour shift.
- The list of the activities that meet the requirements as hours of work for which you can receive compensation is long and involved. Since we want to focus on comp time and overtime pay, I will leave the discussion of those activities for another time.
- You may ask: how do I know if I’m FLSA Exempt or FLSA Nonexempt? You will find the answer on your latest notification of personnel action. In some agencies that’s an SF-50, a paper form, but in many agencies it will be an electronic document. On the notification there is a block that is coded FLSA-N or FLSA-E. The N is for Nonexempt or covered by the FLSA while the E is Exempt or not covered by the FLSA.
- A Federal Wage System employee also may request comp time in lieu of overtime pay for irregular overtime worked under 5 C.F.R. § 532.504(a) whether covered by the FLSA or not.
Wayne Coleman is a federal pay expert available to help your agency avoid premium pay claims through on-site training. Contact him for more information.