U.S. Department of Transportation
Federal Highway Administration
1200 New Jersey Avenue, SE
Washington, DC 20590
|FHWA Personnel Management Manual; Part 1: Personnel Systems & Procedures, Chapter 6: Pay, Allowances, and Other Payments, Section 2: Overtime, Compensatory Time and Premium Pay|
|M3000.1C||February 7, 2006|
What is the purpose of this section? The purpose of this section is to set forth the rules and procedures governing the use and reporting of overtime, compensatory time, and other premium pay provisions for employees of the Federal Highway Administration (FHWA).
Does this directive cancel an existing Federal Highway Administration (FHWA) directive? Yes. This directive cancels FHWA Personnel Management Manual (PMM) Part 1, Chapter 6, Section 2, Overtime, Compensatory Time and Premium Pay , dated June 28, 1996.
What references were used when writing this section?
Title 5, United States Code (U.S.C.), Chapters 53, 55, and 61.
Fair Labor Standards Act of 1974 (Public Law (P.L.) 93-59).
Title 5, Code of Federal Regulations (CFR), Parts 550, 551, and 610.
(Interim) Title 5, CFR, Part 550, Subpart N, Compensatory Time Off for Travel.
Workforce Flexibility Act of 2004 (P.L. 108-411, Section 203).
Federal Employees Pay Comparability Act of 1990, Section 210, as amended January 14, 1993.
Departmental Personnel Manual (DPM) Chapter 550, Pay Administration (General), DPM 550-7, dated April 12, 1985.
DPM Letter 550-1, Agency Responsibility of Work Scheduling and Premium Pay Entitlement, dated September 22, 1983.
DPM Letter 550-2, Payment of Overtime for Travel, dated May 17, 1985.
DPM Bulletin 550-32, Sunday Premium Pay for Periods of Paid Leave and Excused Absence, dated September 27, 1993.
DPM Letter 551-1, Changes in Overtime Pay under the Fair Labor Standards Act, dated May 20, 1988.
DPM Bulletin 551-3, Pay Administration Under the Fair Labor Standards Act (FLSA); Overtime Pay Provisions, dated June 5, 1991
What are the key definitions used in this section?
Administrative workweek. A period of 7 consecutive days designated in advance by the head of a Federal agency. Within this period, Federal agencies must establish a basic 40-hour workweek.
Basic workweek. The established 40-hour workweek for full-time employees. Although employees are generally paid the straight-time pay rate, in cases where the basic 40-hour workweek includes Sunday, or where employees work four 10-hour days, they are entitled to appropriate premium pay. In the specific case where employees have a compressed work schedule, the extra hours worked on a given day are credited for the basic 40-hour work week and do not result in entitlement to premium pay.
Call-back overtime work. Irregular or occasional overtime work performed by an employee on a day when work was not scheduled for him/her, or for which the employee is required to return to his/her place of employment. If an employee is called back to work, any unscheduled overtime work he/she performs will be considered overtime. The employee must be compensated for at least 2 hours of work for overtime pay purposes.
Compensatory time. A form of payment for irregular or occasional overtime performed by an employee. This grants an employee time off from his/her scheduled tour of duty instead of payment for an equal amount of time spent in irregular or occasional overtime work. (This option is not available to prevailing rate employees who must be paid for any overtime that is earned, except for compensatory time off accumulated for religious observances.)
Compensatory time off for travel. A form of compensatory time off that may be earned by an employee for time spent in a travel status away from the employee's official duty station when such time is not otherwise compensable.
Exempt employee. An employee not covered by the provisions of the Fair Labor Standards Act (FLSA), i.e., an executive, administrative, or professional employee. The FLSA designation is indicated on the employee's position description. Employees in the "exempt" category have entitlement to overtime compensation under provisions of Title 5, U.S.C.
Fair Labor Standards Act. A law applying to certain employees of both private enterprise and the Federal government that governs compensation for overtime work. The FLSA establishes a minimum standard to which nonexempt employees are entitled. Under FLSA, management cannot accept the benefits of a nonexempt employee's work without compensating the employee for that work.
First 40-tour of duty. The basic workweek without the requirement for specific days and hours within the administrative workweek. When it is impracticable to prescribe a regular schedule of definite hours of duty for each workday of a regularly scheduled administrative workweek, the head of a Federal agency may establish the first 40 hours of duty performed within a period of not more than 6 days of the administrative workweek as the basic workweek. All work performed by an employee within the first 40 hours is considered regularly scheduled work for premium pay and hours of duty purposes. Any additional hours of officially ordered or approved work within the administrative workweek are overtime work.
Holiday work. Non-overtime work performed by an employee during a regularly scheduled daily tour of duty on a designated Federal holiday.
Hours worked. Includes all the time an employee is required to be on duty or on the Agency's premises or at a prescribed workplace and all of the time he/she is "suffered or permitted" to work for the Agency.
Irregular or occasional overtime work. Overtime work that is not part of an employee's regularly scheduled administrative workweek.
Night work. Work performed by an employee between the hours of 6:00 p.m. and 6:00 a.m. that must be scheduled as part of the employee's regularly scheduled administrative workweek to be compensable at night premium rates. An employee who performs night work in accordance with the above is entitled to pay for that work at his/her rate of basic pay in addition to a night pay differential amounting to 10 percent of his/her rate of basic pay.
Nonexempt employee. An employee covered by the FLSA pay provisions as well as Title 5, U.S.C., regulations. A nonexempt employee becomes entitled to overtime compensation (for hours worked in excess of 40 hours a week) for all work management "suffers or permits" to be performed.
Official duty station. The geographic area surrounding an employee's regular work site and the area the employing Agency designates when determining whether travel time is compensable for overtime pay.
Postshift activity. A concluding activity that an employee performs after the completion of his/her principal activities.
Premium pay. Additional pay for overtime, night, holiday, or Sunday work and for standby duty or administratively uncontrollable work.
Preshift activity. A preparatory activity that an employee performs prior to the commencement of his/her principal activities.
Principal activities. Activities that an employee performs during his/her regularly scheduled administrative workweek (including regular overtime work) and activities performed by an employee during periods of irregular or occasional overtime work.
Rate of basic pay. The rate of pay fixed by law or administrative action for the position held by an employee before any deductions and exclusive of additional pay of any kind.
Regular overtime work. Overtime work that is scheduled prior to the start of an employee's regularly scheduled administrative workweek.
Regular rate of pay. The computed rate of pay to which the FLSA overtime rate is added.
Regularly scheduled administrative workweek. The officially prescribed days and hours within an administrative workweek during which the employee is regularly scheduled to work.
Regularly scheduled work. Work that is scheduled in advance of the administrative workweek in accordance with 5 U.S.C. 6101.
Regular working hours. The days and hours of an employee's regularly scheduled administrative workweek.
Sunday work. Non-overtime work performed by an employee during a regularly scheduled daily tour of duty when any part of that daily tour of duty is on a Sunday.
Tour of duty. The hours of a day (a daily tour of duty) and the days of an administrative workweek (a weekly tour of duty) that constitute an employee's regularly scheduled administrative workweek.
aa. Travel status. The time actually spent traveling between the official duty station and a temporary duty station, or between two temporary duty stations, and the usual waiting time that precedes or interrupts such travel.
bb. Workday. The period from the commencement of the principal activities that an employee is engaged to perform on a given day, to the cessation of the principal activities for that day.
What are the delegations of authority that apply to overtime pay, compensatory time, and premium pay? Unit managers are delegated, and may redelegate, the authority to authorize overtime work in accordance with the FHWA Delegations and Organization Manual, Part I, Chapter 4, Section 1, Personnel Administration. For the purposes of this section, a unit manager is the senior management official in each of the significant organizational components of the FHWA to and through whom human resources authorities are delegated. Unit managers include the Administrator, Deputy Administrator, Executive Director, Associate Administrators, Chief Counsel, Chief Financial Officer, Directors of Field Services, Resource Center Director and Operations Manager, Division Administrators, and Federal Lands Division Engineers.
What is the FHWA policy on overtime pay?
Overtime pay (general). Both non-exempt and exempt employees are eligible for and/or entitled to overtime pay under certain conditions. The entitlement is determined under the FLSA for non-exempt employees, and under Title 5, U.S.C., Part 55 for exempt employees. Specific requirements may differ for non-exempt and exempt employees in certain circumstances, but the following general overtime pay provisions apply for the most part to both non-exempt and exempt employees:
Overtime pay generally is paid to full-time, part-time, and intermittent employees for work in excess of 8 hours in a day or 40 hours in a week that are officially ordered or approved. (However, certain employees who work on an approved alternative work schedule, or for whom the first 40 hours of duty in an administrative workweek is the basic workweek, may not be eligible for overtime if they work in excess of 8 hours in a day.) Overtime work may be regularly scheduled overtime which is scheduled prior to the start of the regularly scheduled workweek, or it may be irregularly scheduled overtime which is approved when needed. All other overtime is considered irregularly scheduled.
Overtime should be kept to a minimum using prudent management practices, and it should be restricted to cases where paid overtime is the only feasible way of accomplishing the objective. Authorizing officials should develop a program for the approval and monitoring of overtime. Special attention should be given to employees who are working overtime hours at a rate that will cause them to exceed 300 hours of overtime in a given year. Consideration should also be given to the use of details from other parts of the organization and/or the use of compensatory time arrangements.
Overtime should be requested and approved in advance. Unless it is scheduled prior to the start of the regularly scheduled workweek, overtime pay should not be paid unless the work is directed or consented to, and it has been approved and documented by an authorizing official. In case of operational emergencies precluding prior written authorization, overtime may be orally authorized provided it is subsequently confirmed in writing before submission of the time and attendance report authorizing the payment.
Work schedules must correspond to the actual work requirements. Assignments to tours of duty, including overtime, should be outlined in specific days and hours and made in advance of the administrative workweek. When is it known prior to the onset of the workweek that a change in a work schedule is necessary, the employee must be informed as soon as possible and the tour of duty change must be adequately documented on the employee's time and attendance card.
Absence on annual or sick leave, absence on legal holidays, non-workdays established by executive or administrative order, or absence on compensatory time during the basic workweek does not reduce the amount of overtime pay to which an employee may be entitled during an administrative workweek.
The performance of irregular or occasional overtime work at night that was not scheduled in advance of the administrative workweek does not entitle the employee to night pay in addition to overtime pay for the same hours.
Crediting overtime. All regularly scheduled overtime must be compensated by paid overtime. Both regular and irregular overtime are credited and paid according to the following procedures.
An employee shall be compensated for every minute of overtime work.
Pre-shift (preparatory) or post-shift (concluding) activities not closely related to the performance of the principal activities are not computed in "hours of work", unless it is determined that a pre-shift or post-shift activity is indispensable to the performance of the principal activities. In this case, the time spent in the qualifying pre-shift or post-shift activity must exceed 10 minutes per daily tour of duty to receive credit for the total time spent in the activity as hours of work.
Under Title 5, U.S.C., for all employees (regardless of pay plan) whose basic rate is greater than the minimum rate for grade General Schedule (GS)-10, the overtime hourly rate is the greater of (1) one and one-half times the hourly rate of basic pay at the minimum rate for grade GS-10, or (2) the employee's own hourly rate of basic pay.
Under the FLSA, overtime pay for nonexempt employees whose basic pay does not exceed the minimum rate for grade GS-10, is one and one-half times his/her basic rate.
In instances where the FLSA and other non-Title 5 statutes are not consistent in regard to overtime provisions, calculations under both laws will be made and employees will receive overtime pay under whichever authority provides the greater benefit within a given workweek.
Under the FLSA, employees are entitled to overtime on the basis of actual hours worked, including work within the workweek which may not be ordered or approved but is "suffered or permitted" to be performed; a workday begins with the commencement of the employee's principal activities and ends with the conclusion of the employee's principal activities for that day.
Supervisors are responsible for assuring that nonexempt employees do not perform work during non-work periods unless overtime payment is intended.
Under the provisions of the FLSA, overtime is payable for all hours of work performed in excess of 8 hours daily (or in excess of the specified hours of the day for employees on compressed work schedules). Overtime work "suffered or permitted" will be payable in excess of 40 hours in a workweek. Employees engaged in professional or technical engineering activities must follow a 40 hours of duty standard as a basis for overtime.
The nature of the overtime (e.g., "regularly scheduled" or irregular or occasional) must be documented. When computing entitlement for overtime, paid leave and other non-work hours in pay status are treated as hours worked in making the calculation, but hours covered by other types of premium pay, except night pay, are not.
The FLSA considers meal periods as hours worked if the meal periods are frequently interrupted by calls to duty and the employee would not be considered relieved of all duties. Under those circumstances, the meal periods must be considered as "hours worked." However, if an employee's meal periods are uninterrupted, except for rare and infrequent calls, the meal periods can be excluded from "hours worked."
Overtime pay during travel status. Both under Title 5, U.S.C., and the FLSA, time spent traveling away from the official duty station during regular hours of work is considered "hours of work."
The FLSA requires the payment of compensation to non-exempt employees under certain conditions for authorized travel time spent traveling on non-workdays or outside of official duty hours.
Each request for overtime while in a travel status should be considered on a case-by-case basis for payment of overtime. 5 CFR 551.422 or subsequently issued interpretations and guidance should be consulted prior to final determination on overtime eligibility.
Any time and for any reason an employee drives a Federal government vehicle or his/her personally-owned vehicle during a regularly scheduled workday or on a non-workday to a temporary duty location outside the official duty station limits (i.e., if the employee were directed or permitted to drive from home to a motel at a temporary duty location on Sunday to begin work on Monday), the entire time spent driving would be countable as hours of work;
Any time an employee is a passenger in a vehicle driven by another employee or travels on a commercial carrier, then the time spent riding and waiting for rides which correspond to the employee's regular work hours would be counted as hours of work (i.e., if the trip were on a Sunday from 12:00 p.m. to 8:00 p.m. and the employee's regular hours were 8:30 a.m. to 5:00 p.m. on weekdays, the employee would have 5 hours, 12:00 p.m. to 5:00 p.m., counted as hours of work);
Any time an employee is directed to fly to a temporary duty site on Sunday, but chooses to drive, he/she would be entitled to count as work hours only the lesser of the actual time traveled (the driving time) or the flying time;
Any time an employee performs work while driving, even if commuting (i.e., by being required to pick up passengers or make business stops), would be counted as hours of work, and;
Whenever an employee attends an event that could not be scheduled or controlled administratively, travel time to the event and the return from such event to his or her official duty station would be counted as hours of work.
Travel – compensable hours of work under Title 5, U.S.C. and CFR. Under 5 U.S.C. 5542(b)(2) and 5 CFR 550.112(g), official travel away from an employee's official duty station is hours of work if the travel is:
within the days and hours of the employee's regularly scheduled administrative workweek, including regularly scheduled overtime hours, or
outside the hours of the employee's regularly scheduled administrative workweek, is ordered or approved, and meets one of the following four conditions:
involves the performance of work while traveling (such as driving a loaded truck);
is incident to travel that involves the performance of work while traveling (such as driving an empty truck back to the point of origin);
is carried out under arduous and unusual conditions (e.g., travel on rough terrain or under extremely severe weather conditions); or
results from an event that could not be scheduled or controlled administratively by any individual or agency in the executive branch of Federal government (such as training scheduled solely by a private firm or a job-related court appearance required by a court subpoena).
What is the FHWA policy on compensatory time?
Compensatory time under Title 5, U.S.C. All GS/GM employees may be granted compensatory time off.
Employees whose rate of basic pay exceeds the maximum rate for GS-10 may be required to take compensatory time off in lieu of overtime for irregular or occasional overtime work.
There is no authority to grant compensatory time off for regularly scheduled overtime; employees must be paid for such overtime.
Compensatory time under the FLSA. The FLSA does not amend or rescind a non-exempt employee's entitlement to compensatory time nor does it grant any additional right to compensatory time. Under the FLSA, the employee must be paid overtime unless the employee requests compensatory time prior to the end of the scheduled weekly tour of duty.
Non-exempt employees, with rates of pay up to and including the maximum rate for GS-10, may request compensatory time in lieu of overtime pay only for irregular or occasional overtime work.
Compensatory time may be granted only if it is selected by the employee in advance by signing a statement to be submitted with the time and attendance card.
Maximum accumulation of compensatory time earned as a compensation for overtime. Maximum accumulation of compensatory time is limited to 160 hours. Compensatory time should be used as soon as possible after it is earned to avoid large accumulations and the need to convert to paid overtime. Accumulations beyond 160 hours will be converted automatically and compensated as paid overtime.
Compensatory time for religious observance
An employee may elect to accrue compensatory time for the purpose of taking time off without charge to leave when personal religious beliefs require that the employee abstain from work during certain periods of the workday or workweek.
Any employee who elects to accrue compensatory time for this purpose shall be granted (in lieu of overtime pay) an equal amount of compensatory time off (hour for hour) from his or her scheduled tour of duty. (There are recordkeeping requirements for such compensatory time for religious observances as specified in 5 CFR 550.1001.)
Use of compensatory time. Compensatory time will be used before annual leave except when annual leave would thereby be forfeited.
Conversion to paid overtime. All unused accumulated compensatory time not earned as a result of being credited for time in a travel status as described in paragraph 7g will be converted to paid overtime when an employee is separated for one of the following reasons: death, involuntary retirement, disability separation, or entry into military service.
Compensatory time off for travel. Compensatory time off for travel is a form of compensatory time, that was established by the Workforce Flexibility Act of 2004. The Act allows an employee to earn compensatory time off for time spent in a travel status away from the employee's official duty station when such time is not otherwise compensable under Title 5, U.S.C., or FLSA provisions. Separate records for accumulation and use of compensatory time off for travel must be maintained. This compensatory time must be used by the end of the 26th pay period after the pay period in which it was approved. Members of the Senior Executive Service are not eligible to earn compensatory time for time spent in a travel status. The Office of Personnel Management (OPM) interim regulations must be consulted for guidance when using this new provision. The FHWA will follow OPM's interim regulations and update this Chapter when the regulations are finalized.
What is the FHWA policy on other premium pay provisions, such as for night work, Sunday work and holiday work?
The law authorizes a night differential of 10 percent of the employee's basic pay in addition to his/her basic pay, to be paid for any regularly scheduled work between 6:00 p.m. and 6:00 a.m.
Any night work, including overtime during night hours, that has been scheduled in advance of the administrative workweek (regularly scheduled work) is compensable at night rates.
The only exception to the requirement that night work be regularly scheduled is when night pay is authorized because the employee, as a result of the temporary change in the daily tour of duty, actually performs night work as part of his/her regularly scheduled administrative workweek. For example, an employee whose daily tour of duty is 8:30 a.m. to 5:00 p.m., Monday through Friday, reports to work on Monday and is informed that his/her work schedule for Tuesday through Friday will be from 3:30 p.m. until 12:00 a.m. The employee only works 40 hours during the week and is not entitled to overtime pay, but is entitled to night differential for 24 hours.
Under Title 5, U.S.C., night pay differential is in addition to overtime, Sunday, or holiday pay and is not included in the rate of basic pay used to compute the overtime, Sunday, or holiday pay.
Payment of night differential continues for regularly scheduled night hours when an employee is in a paid leave status, providing the total amount of leave in a pay period is less than 8 hours or the employee is absent due to a holiday or other non-workday or is in an official travel status.
If an employee performs work on Sunday as part of his/her regularly scheduled workweek, he/she is entitled to Sunday pay for the Sunday hours worked; if hours are in excess of a basic 40-hour workweek, he/she is entitled to overtime pay for such work.
Sunday pay entitlement includes basic pay plus premium pay at a rate equal to 25 percent of the rate of basic pay for each hour of regularly scheduled Sunday work.
An employee who performs work on a Federal holiday as part of his/her regularly scheduled workweek is entitled to premium pay at a rate equal to the regular rate of basic pay in addition to regular pay for the holiday. In no case will an employee required to perform any work be entitled to less than 2 hours of holiday pay.
An employee who is assigned overtime work on a Federal holiday is paid in the same manner as for overtime work performed on other days.
Under Title 5, U.S.C., premium pay for holiday work is in addition to overtime pay or night pay differential or premium pay for Sunday work, and it is not included in the rate of basic pay used to compute the overtime pay, night pay differential, or premium pay for Sunday work.
What are the reporting requirements regarding overtime pay and compensatory time?
Documentation. It is important for supervisors to determine and document, especially for nonexempt employees, whether overtime work is regularly or irregularly scheduled.
Approval. Overtime should be authorized in advance on Form FHWA-21, Authorization for Paid Overtime and/or Holiday Work, and for Compensatory Overtime. Authorized officials may elect to project overtime needs, by grade levels and hours, and prepare this form on a pay period basis. The original signed and dated Form FHWA-21 should be retained by each office to verify the overtime paid as reported in the Federal Personnel and Payroll System's (FPPS) DataMart Overtime Reports. Each office may access these reports in DataMart. Retention requirements for time and attendance records are in the General Records Schedule 2.
Monitoring. Overtime reports, available in either the DataMart reporting system housed in the FPPS or the Consolidated Automated System for Time and Labor Entry (CASTLE), will be used to provide supervisors with information on cumulative overtime hours for each employee.