An Introduction to Overtime Compensation Brought to you by: NTEU Chapter 128

What Laws Govern Overtime Pay for Federal Sector Employees? Fair Labor Standards Act (FLSA) 29 U.S.C. § § ; 5 C.F.R. Part 551 Federal Employees Pay Act (FEPA) 5 U.S.C. § § (a); 5 C.F.R. Part 550 Customs Officers Pay Reform Act (COPRA) 19 U.S.C. § 267

CBP/NTEU CBA Details Article 35, Overtime Section 1. COPRA Covered Employees Section 2. Employees Not Covered by COPRA Other articles contain references and specific implementing details Exempt or Non-Exempt? SF50, Field 35

What Is the FLSA? The Fair Labor Standards Act (FLSA) sets minimum standards for wage and overtime entitlements. Federal employees covered by FLSA since 1974.

Who Is Covered by the FLSA? Employees are covered by the FLSA unless they fall under one of the three “white collar” exemptions: Professional Administrative Executive

Professional Exemption Primary duty involves advanced knowledge in field of science or learning, acquired through specialized education Primary duty involves artistic or creative endeavor Primary duty involves skilled work in computer field (systems design, etc.)

Administrative Exemption Primary duty involves work related to agency management or business operations AND Work involves use of discretion and independent judgment in matters of significance

Executive Exemption Primary duty is management and Employee customarily and regularly directs two or more employees, and Employee has authority to hire or fire (or makes recommendations given particular weight)

Temporary Exemption Status FLSA-covered employee temporarily assigned to perform exempt duties for more than 30 days is treated as exempt. FLSA-exempt employee who temporarily performs FLSA-covered duties for more than 30 days is treated as nonexempt.

FLSA Covered Employees Under the FLSA, covered employees are entitled to overtime compensation for all “hours of work.” Calculated at time and a half. Required for each hour worked in a workweek in excess of 40 hours in a week or 80 hours in a pay period, if on a compressed schedule.

FLSA Covered – Determining Compensable Hours What are “hours of work?” All time spent performing an activity for the benefit of the agency and under agency direction and control. Includes both ordered overtime and “suffered or permitted” overtime. (except for employees on a flexible schedule)

FLSA Covered - Determining Compensable Hours (cont.) What does “suffered or permitted” mean? Work performed for the benefit of the agency, whether requested or not, performed with the knowledge and acquiescence of management. Test: If a supervisor who has one of the following fails to stop the employee from performing such work: Direct knowledge of work being performed, or Indirect evidence of work being performed.

FLSA Covered – Determining Compensable Hours (cont.) When is work not “suffered or permitted”? The supervisor did not know or have reason to believe that work was being performed; The work occurred so rarely that it was impossible to prevent; The supervisor tried to prevent the work from being performed; The employee is on a flexible schedule.

FLSA Covered – Compensatory Time Compensatory time off may be requested by the employee in lieu of overtime payment. Agency cannot require employee to take comp time instead of overtime payment. Earned on an hour for hour basis. Should not be confused with credit hours. Agency may fix time limits for use of compensatory time. Employees are entitled to payment for unused compensatory time.

FLSA Covered – Compensable Travel Hours Time spent traveling is compensable when: Travel occurs during regular working hours; Travel occurs on a non-work day during hours that correspond to regular working hours, e.g., 9 am to 5 pm; Travel as a passenger on a one-day assignment outside your official duty station; or Employee is required to work or drive during travel.

Compensable travel (cont.) Travel by FLSA-covered employees is also compensable under FEPA rules if it is: officially assigned AND involves work while traveling OR is under arduous or unusual circumstances OR results from administratively uncontrolled event

FLSA Covered – Compensable Travel Hours (cont.) When is travel time not compensable? Travel outside of regular working hours; Home to work travel (commute time). Within your official duty station, or Normal commute time subtracted from calculation of travel time outside official duty station.

FLSA Covered – Compensable Training & Homework Hours Time spent training is compensable when: Training or homework occurs during regular working hours; or Training or homework occurs outside regular working hours and Management has directed you to participate Amount of homework falls within amount of time allotted by agency The purpose of the training is to improve performance in your current position.

What About Employees Not Covered by the FLSA? Remember: The above protections only apply to employees covered by the FLSA. The Federal Employees Pay Act (FEPA) provides limited protections to FLSA- exempt employees.

CBA: Employees Not Covered by COPRA In accordance with applicable laws and regulation Employee can request exemption Assigned and rotated in a fair and impartial manner Exchange overtime assignments Advance notice Not while on leave

FEPA Employees Employees are entitled to overtime compensation for hours of work only when that time is ordered and approved in writing. Overtime pay may be less than time- and-a-half. Overtime is “capped” at one and a half times the rate of basic pay for a GS-10, step 1 employee or the employee’s hourly rate of basic pay, whichever is greater!

FEPA Employees – Compensatory Time Compensatory time may be given in lieu of overtime payment at the discretion of management. Earned on an hour for hour basis. Agency may fix time limits for use of compensatory time. Credit hours cannot be earned for overtime.

FEPA Employees – Compensable Travel Hours Time spent traveling is generally not compensable unless: Travel occurs during regular workweek; or Travel results from event that could not be scheduled or controlled administratively by the agency; or Travel is carried out under extremely arduous or unusual conditions, e.g., severe weather; or Employee is required to work during travel.

FEPA Employees – Compensable Training & Homework Hours Overtime spent at training is generally not compensable.

COMP TIME FOR TRAVEL Under a 2004 statute, employees whose travel is not compensable under either the FLSA or FEPA may obtain compensatory time for the travel time. --covers actual travel time and usual waiting time --must be used by 26 th pay period after earned or is forfeited --travel from home to terminal/airport must be subtracted from travel time.

Lessons Learned Know your exemption status. Record “hours worked.” Keep your Chapter Stewards informed.

Relevant Success by Chapter 128 Overtime and FLSA Status $4,800,000 for IT professionals $900,000 for auditors Other positions covered included: Telecommunication Specialist International Trade Specialist Don’t be a stranger… us at: