Q: I am currently a GS-11 with some supervisory responsibilities. Until recently, GS-09 and GS-11 positions with similar responsibilities have been compensated with pay when overtime was worked. Our new supervisor has deemed that these GS-09 and GS-11 positions are not eligible for overtime pay and has been providing only comp time for overtime worked. We believe this is incorrect. Do you have any information that will tell us when it’s proper to receive comp time and when overtime pay should be paid?
A: First, there are two overtime laws that apply to Federal employees. They are the Fair Labor Standards Act (FLSA) and the Federal Employees Pay Act (FEPA or Title 5). Each Federal employee is covered by one of these laws. Your last Notice of Personnel Action, which in many agencies is an form SF-50, has a block on it that says something like FLSA STATUS. There are two statuses – N is for those who are covered by the FLSA, and E is for those who are covered by the FEPA.
Many Federal employees are designated E and, therefore, are covered by FEPA. Under that law a supervisor may direct an employee to work overtime and authorize only comp time if the employee is earning more than the amount paid to a GS-10 step 10 rate and has worked irregular or occasional overtime. See the regulations at 5 CFR 550.114(c).
Many other Federal employees are designated N and, therefore, are covered by FLSA. Under the FLSA a supervisor may approve comp time for irregular or occasional overtime if the employee requests the comp time. However, for those covered by the FLSA the only form of compensation that is authorized for regularly scheduled overtime is overtime pay. See the regs at 5 CFR 551.531(a) and (c).
Regularly scheduled means that the overtime was scheduled before the beginning of the workweek during which the OT is worked. For example, for employees whose work week is Sunday through Saturday, when the overtime is scheduled before Sunday, then the OT is regularly scheduled. Irregular or occasional OT is overtime that is scheduled and worked during the same workweek. For example, when a supervisor on Monday directs an employee to work overtime on Thursday, then the OT is irregular or occasional.
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.