Guidance on Applying FLSA Overtime Provisions to Law Enforcement Employees Receiving Administratively Uncontrollable Overtime Pay

Fact Sheet: Guidance on Applying FLSA Overtime Provisions to Law Enforcement Employees Receiving Administratively Uncontrollable Overtime Pay

Summary

  1. For Federal law enforcement employees who are receiving administratively uncontrollable overtime (AUO) pay under 5 U.S.C. 5545(c)(2) and who are covered by the Fair Labor Standards Act (FLSA) overtime pay provision (i.e., FLSA-nonexempt), special FLSA overtime rules apply. This guidance addresses the special FLSA overtime rules that apply to such employees. It necessarily also includes guidance that applies to Federal employees more generally-to provide context and a complete explanation of the rules that apply to FLSA-nonexempt AUO employees.

Application of Section 7(k) of the FLSA

  1. Under section 7(k) of the FLSA (29 U.S.C. 207(k)), an employer may cover employees performing law enforcement activities under special overtime provisions in lieu of the standard provisions in section 7(a) of the FLSA.
    1. Instead of determining overtime pay on a weekly basis, it may be determined over a longer period of up to 28 days. (Generally, FLSA overtime pay for Federal law enforcement employees under section 7(k) would be applied on a biweekly basis, if a weekly basis is not used.)
    2. Instead of a 40-hour weekly overtime threshold, the weekly overtime threshold is 42.75 hours (or 85.5 hours if a biweekly period is used).
    1. receive a special type of premium payment-namely, AUO pay under 5 U.S.C. 5545(c)(2) or standby duty pay under 5545(c)(1) (Note: Standby duty pay is generally not used for Federal law enforcement employees.); or
    2. are not an employee as defined in 5 U.S.C. 5541(2) for the purposes of 5 U.S.C. 5542, 5543, 5544.

    (See 5 CFR 551.216(a), 551.501(a)(5), and 551.541.)

    Hours of Work and Overtime Hours

    1. For FLSA-nonexempt Federal employees covered by the title 5 premium pay provisions, compensable hours of work used in determining the number of overtime hours under FLSA are derived using both title 5 and FLSA hours of work rules. In other words, any time that would qualify as hours of work under either title 5 overtime rules or standard FLSA overtime rules would be counted in determining FLSA overtime hours. (See 5 U.S.C. 5542(c) and 5 CFR 551.401(b), (f)-(h). Title 5 overtime hours of work rules are mainly found in 5 U.S.C. 5542 and 5 CFR 550.511-550.112 and 410.102, but also, for wage employees, in 5 U.S.C. 5544 and 5 CFR 532.501-532.503. Standard FLSA overtime hours of work rules are found in 5 CFR 551.411-551.432.) For example, hours in a paid nonwork status, which are hours of work under title 5 overtime rules but not under the standard FLSA overtime rules, would be counted as hours of work in applying FLSA overtime rules to Federal employees. Note: If an employee is covered by an alternative pay authority other than the title 5 provisions administered by OPM, a dual computation is required by 5 CFR 551.513. Thus, two overtime computations would be performed-one computation under the alternative pay authority and one computation under the FLSA rules-and the employee would be paid under whichever authority provides the greater overtime pay entitlement for the given workweek. In the case of such a dual computation, the applicable hours of work rules are separately applied in each computation. (This same dual computation method applied to employees covered by title 5 overtime rules until May 4, 1991, the effective date of OPM regulations implementing 5 U.S.C. 5542(c), as added by section 210 of the Federal Employees Pay Comparability Act of 1990. See 56 FR 20339 and 57 FR 59277.)
    2. For FLSA-nonexempt Federal employees on a flexible or compressed work schedule established under 5 U.S.C. chapter 61, FLSA overtime hours of work include only those hours that meet the applicable definition of "overtime work" in 5 U.S.C. 6121(6) or (7). (See 5 CFR 551.501(a)(6).) Thus, for employees on a flexible work schedule, overtime hours must be officially ordered in advance, notwithstanding the standard FLSA hours of work rules that would normally credit "suffered or permitted" hours.
    3. For FLSA-nonexempt Federal employees who earn compensatory time off under 5 CFR 551.531 by performing overtime hours of work, those hours would be excluded in determining FLSA overtime hours. (See 5 CFR 551.501(a)(7).)
    4. Under standard FLSA overtime rules, overtime hours are determined by applying a weekly threshold (or a biweekly threshold when established for section 7(k) employees). Under title 5 overtime rules, most employees can also receive overtime pay for hours in excess of 8 in a day, even if the hour does not cause the employee to exceed the 40-hour weekly threshold. For FLSA-nonexempt Federal employees covered by title 5 premium pay provisions, the hybrid approach to determining FLSA overtime hours for Federal employees allows for use of the 8-hour daily overtime threshold, but any hour of work that would be creditable only under the standard FLSA hours of work rules would not be used in applying the 8-hour daily threshold. In other words, only those hours that would qualify as hours of work under title 5 overtime rules would be considered in applying the 8-hour threshold. (See 5 CFR 551.401(f) and 551.501(a)(2).) For example, work that is not officially ordered or approved in writing but is "suffered or permitted" would not be used in applying the 8-hour daily threshold. Any overtime hour resulting from application of the 8-hour daily overtime threshold is disregarded in applying the applicable weekly threshold (or biweekly threshold when established for section 7(k) employees).
    5. Irregular or occasional overtime hours that are compensated by AUO pay may not be considered in applying the 8-hour daily overtime threshold. (See 5 CFR 551.501(a)(1). Under title 5 rules, the 8-hour daily overtime threshold applies only to overtime hours and pay derived under 5 U.S.C. 5542 and 5 CFR part 550, subpart A (or for wage employees, 5 U.S.C. 5544 and 5 CFR 532.503). As far as title 5 is concerned, irregular or occasional overtime hours compensated by AUO pay are used only in applying the AUO pay provision. See also 5 CFR 550.163(b).)

    Meal Periods

    1. For most employees, meal periods are scheduled in advance of the workweek as unpaid breaks in the workday. (See 5 CFR 610.121(a)(6).) Such a scheduled unpaid break in working hours is not part of an employee's regularly scheduled administrative workweek, since the employee was not scheduled in advance of the workweek "to work" during the meal period. (See 5 CFR 610.102 definitions.) The fact that the unpaid meal period was scheduled in advance of the workweek does not make any work performed during the meal period regularly scheduled, since it is the work itself that must be scheduled in advance of the workweek. (See OPM Fact Sheet "Lunch or Other Meal Periods" for general information about meal periods.) Note: An employee may have a "shift" of 8.5 hours, including an unpaid meal break of half an hour. Under official terminology in OPM regulations, the employee's "tour of duty" for the workday is 8 hours, since the tour of duty encompasses only those hours that are in the employee's "regularly scheduled administrative workweek."
    2. Under title 5 overtime rules, an employee is not credited with hours of work for a bona fide meal period during which the employee is completely relieved from duty. (See 5 CFR 550.112(m)(3).) If an employee's scheduled meal period is interrupted by a call to duty, the time spent on duty is hours of work. (See 5 CFR 550.112(m)(1).) Similar rules apply under FLSA. In general, bona fide meal periods, during which employees are completely relieved from duty by the agency, are not considered hours of work. (See 5 CFR 551.411(c). See paragraph 14 for exception dealing employees receiving AUO pay.)

    AUO Pay

    1. AUO pay is an alternative form of overtime pay authorized under 5 U.S.C. 5545(c)(2) and 5 CFR 550.151-550.163. For those receiving AUO pay (hereafter referred to as an "AUO employee"), that pay is the sole compensation under title 5 for all "irregular or occasional overtime work" hours. An AUO employee may receive other premium pay for "regularly scheduled work" hours, including overtime pay under 5 U.S.C. 5542, night pay under 5 U.S.C. 5545(a), Sunday pay under 5 U.S.C. 5546(a), and holiday premium pay under 5 U.S.C. 5546(b). (See 5 CFR 550.163(b).) Note: While an employee must have a substantial amount of irregular overtime with certain characteristics to qualify for AUO pay, once AUO pay becomes applicable it becomes the sole compensation under title 5 for ALL irregular overtime or occasional hours. (See 5 CFR 550.163(b). Note also that all irregular or occasional overtime hours are used in determining the AUO percentage under 5 CFR 550.154(a).) The type of hours needed to qualify for AUO pay (i.e., qualifying conditions in 5 CFR 550.153) are narrower than the type of hours compensated by AUO pay.
    2. The terms "irregular or occasional overtime work" (often referred to simply as "irregular overtime") and "regularly scheduled overtime work" (or simply "regular overtime work") are defined to be mutually exclusive. Under title 5, an overtime hour must be either irregular or regularly scheduled. The following definitions are provided in 5 CFR 550.103:
      1. The term "overtime work" is defined as work described in 5 CFR 550.111, which "includes irregular or occasional overtime work and regular overtime work."
      2. The term "irregular or occasional overtime work" is defined as "overtime work that is not part of an employee's regularly scheduled administrative workweek." (See also 5 CFR 551.501(c), which defines it as "overtime work that is not scheduled in advance of the workweek.")
      3. The term "regular overtime work" is defined as "overtime work that is part of an employee's regularly scheduled administrative workweek."
      4. The term "regularly scheduled administrative workweek" means the period established under 5 CFR 610.111 "within which the employee is regularly scheduled to work." (See also the definition in 5 CFR 610.102.)
      5. The term "regularly scheduled work" means "work that is scheduled in advance of an administrative workweek under an agency's procedures for establishing workweeks in accordance with § 610.111." (See also the definition in 5 CFR 610.102.)

      Thus, for employees with a regularly scheduled administrative workweek, an overtime hour is either irregular or regularly scheduled based on whether the work was scheduled in advance of the employee's administrative workweek.

      FLSA Overtime Pay Computation for AUO Employees

      1. Under OPM's FLSA regulations, an employee's entitlement to time and one-half overtime pay under FLSA is met by providing the following payments, as provided in 5 CFR 551.512(a):
        1. The straight time rate of pay times all overtime hours worked; plus
        2. One-half times the employee's hourly regular rate times all overtime hours worked.

        Example of an FLSA Overtime Pay Computation for a Law Enforcement Employee Receiving AUO Pay

        A GS-12, step 5, law enforcement officer in Washington, DC (2011 annual locality rate of $84,855 or $40.66 per hour) has a regular shift from 8 a.m. to 4:30 p.m. per day (including an 8-hour basic tour of duty and a scheduled unpaid, off-duty 30-minute meal period), Monday through Friday, receives administratively uncontrollable overtime (AUO) pay (25 percent of basic pay), works a total of 10 hours of irregular overtime compensated by AUO pay, and works 9 regularly scheduled overtime hours on Saturday (11:00 am - 8:00 pm, including a regularly scheduled on-duty meal period and 2 hours covered by night pay) in addition to the basic work schedule. In this example, FLSA overtime pay is computed on a weekly basis. (Note: Since the employee in this example is a law enforcement employee covered by section 7(k) of the FLSA, FLSA overtime pay could be computed on a biweekly pay period basis, if the agency so elects.)

        SuMTuWThFSaTotal HoursOver-time hours
        Basic work schedule
        (including paid time off)        		 -- 8 8 8 8 8 -- 40
        Irregular overtime work (1) 2 3.5 4 .5 10
        Regularly scheduled
        overtime work        		 9 9
        Total hours of work 0 10 11.5 12 8.5 8 9 (2) 59
        Hours of work in excess of
        8 per day (3)         		0 0 0 0 0 0 1 -1 1
        Hours of work counted
        toward the weekly
        overtime standard        		 0 10 11.5 12 8.5 8 8 58
        Weekly Overtime Standard -42.75
        Hours in excess of weekly overtime standard 15.25 15.25
        Total overtime hours 16.25

        1. Irregular overtime work could include irregular overtime work during a meal period, if that meal period was scheduled prior to the workweek as an off-duty break in working hours.

        2. The 9 hours include 2 regularly scheduled overtime hours after 6:00 pm for which night pay is payable.

        3. Irregular overtime hours compensated by AUO pay are not counted towards hours in excess of 8 in a day.

        A. Overtime Hours

        The employee is entitled to 16.25 hours of overtime pay under the FLSA, computed as follows:

        • 1 hour in excess of 8 hours per day, plus
        • 15.25 hours (58 minus the 42.75-hour overtime standard) in excess of the weekly overtime standard.

        There are 9 regularly scheduled overtime hours and 10 irregular overtime hours beyond the 40-hour basic workweek, but because the weekly overtime standard is 42.75, the overtime hours are 16.25 instead of 19.

        B. FLSA Overtime Pay

        DescriptionAmount
        Overtime hours (from part A of this example) 16.25 hours
        Total Renumeration
        DescriptionAmount
        Basic pay for 40 hours [$40.66 x 40 hours] $1,626.40
        AUO Pay [(25% x $40.66) x 40 hours = $10.17 x 40 hours] $406.80
        Straight time for the 9 regularly scheduled overtime hours [($1,626.40 + 406.80) / (40 + 10 irregular OT) = $40.66 * ] [$40.66 x 9 hours = $365.94] $365.94
        Night differential [(10% x $40.66) x 2 hours = $4.07 x 2 hours] $8.14
        Total $2,407.28

        * The straight time rate happens to equal the basic rate in this example. This is not generally the case. It occurred in this example because the employee had 10 irregular overtime hours which is exactly 25% of the 40-hour basic workweek and the AUO rate was also 25%.

        Hourly Regular Rate">Hourly Regular Rate:
        DescriptionAmount
        [$2,407.28 / 59 total hours] $40.80
        Additional Pay Due Employee Under the FLSA
        DescriptionAmount
        [1 x $40.66 (straight time rate)] x 9 regularly scheduled overtime hours = $365.94 $365.94
        [1/2 x $40.80 (hourly regular rate)] x 16.25 total overtime hours = ($20.40 x 16.25) = $331.50 $331.50
        Total $697.44
        Pay the Employee
        DescriptionAmount
        Basic pay $1,626.40
        AUO pay $406.80
        Night differential $8.14
        FLSA overtime pay $697.44
        Total $2,738.78