Do FLSA Exempt Employees Get Overtime?

By on August 10, 2015 in Pay & Benefits, Q&A with 3 Comments

Q: Your response to an employee who asked about their ability to receive comp time instead of credit hours when they are on TDY raised a question for me. The employee said they are FLSA exempt. You indicated that they can’t receive comp time for the additional hours worked when on TDY unless it is scheduled 30 days in advance in which case the only compensation they can receive is overtime pay. If the employee is exempt, why can they receive overtime pay at all? Thank you for clarifying.

A:  Thanks for your question.  Let me start by saying there are two overtime laws for Federal employees – the Fair Labor Standards Act (FLSA) that covers Nonexempt employees, and the Federal Employees Pay Act (FEPA) that covers Exempt employees. This means that both kinds of employees may be eligible for overtime. The difference is which set of rules establishes when they can be paid and how much they can be paid for the overtime work.  So Exempt employees are eligible for overtime under the FEPA provisions (see 5 CFR 550.111-550.114), while the Nonexempt employees are eligible for overtime under the FLSA provisions (see 5 CFR 551.501-551.531).  In short, the answer is yes, FLSA Exempt employees can be paid for overtime work when it complies with the FEPA rules.

Also let me clarify the blog entry by saying that comp time can only authorized if an employee has worked irregular overtime. Irregular overtime is overtime that is scheduled and worked in the same workweek. For example, your supervisor tells you this morning that this afternoon you must work 3 extra hours. It is irregular overtime and you may be authorized comp time instead of overtime pay for this irregular overtime work.  Comp time can be authorized under both the FEPA and FLSA rules.

Next let me mention that regularly scheduled overtime for which pay is the only option must be scheduled in advance of the workweek in which it is performed. For example, if your supervisor is setting up your work schedule for next week and includes 4 extra hours of work on Wednesday after your regular shift that is regularly scheduled overtime. The question I responded to in the blog entry indicated the questioner had his schedule set 30 days in advance, which meant the work qualified as regularly scheduled overtime for which pay was the only option. And comp time cannot be granted for regularly scheduled overtime unless the employee is working a flexible work schedule.

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.

© 2016 Wayne Coleman. All rights reserved. This article may not be reproduced without express written consent from Wayne Coleman.

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About the Author

Wayne Coleman’s career at various Federal agencies spanned about 32 years.  Since his retirement he has consulted on, written about, and provided training on overtime and premium pay, on the principles of FLSA coverage and exemption, and on related federal compensation issues.  He can be reached at wayneslyhouse@comcast.net.

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