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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).
  2. Office of Personnel Management (OPM) regulations provide information on which activities qualify as "law enforcement activities" and which employees qualify as "law enforcement employees" for FLSA purposes. (See 5 CFR 551.216.)
  3. OPM regulations provide that FLSA section 7(k) applies only to law enforcement employees who-
    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).)

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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.)

    Notes:

    • Prior to May 2, 2002, OPM's FLSA regulations provided that all meal periods would be included as on-duty time and as hours of work for FLSA purposes for section 7(k) employees engaged in law enforcement activities. (See former 5 CFR 551.541(b). Federal Personnel Manual Letters 551-5 and 551-24 reflected the former rule.) The pre-2002 FLSA regulation did not make meal time creditable as hours of work under title 5 rules. It solely addressed hours of work for FLSA purposes.
    • Prior to May 4, 1991, OPM regulations provided a dual computation method for FLSA-nonexempt employees also covered by title 5 overtime rules: one computation under title 5 overtime hours of work and pay computation rules and one computation under the FLSA overtime hours of work and pay computation rules. The employee was paid under whichever authority provided the greater overtime pay entitlement for the given workweek. (See former 5 CFR 551.513.) Thus, the FLSA rules on meal periods applied only to the FLSA overtime pay computation.
    • Effective May 4, 1991, OPM issued regulations providing for a single computation method for FLSA-nonexempt employees for employees who had been covered by title 5 overtime rules. (These regulations implemented 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.) Under this method, FLSA rules on hours of work and overtime thresholds were modified so that (1) any time qualifying as an hour of work under title 5 would be considered to also be an hour of work under FLSA and (2) the 8-hour daily overtime threshold could be applied to FLSA-nonexempt employees in applying the FLSA overtime pay rules. The FLSA overtime pay computation method itself was not otherwise affected. Also, title 5 overtime rules (including AUO rules) were not affected, except to provide that, for FLSA-nonexempt employees, agencies would not compute overtime pay under the standard title 5 overtime rules in 5 U.S.C. 5542 (or 5544 for wage employees) but would instead only use FLSA overtime rules. The FLSA overtime pay computation method became the sole method of computing overtime pay for FLSA-nonexempt employees. Thus, between May 4, 1991, and May 2, 2002, an FLSA-nonexempt employee could continue to have a meal period that was hours of work under FLSA, but not under title 5.
    • FPM Letter 551-24, January 14, 1992, contained an Example 8 dealing with the FLSA overtime pay computation for an AUO employee with meal periods that were not hours of work under title 5, but were hours of work under FLSA. Thus, the meal periods in Example 8 were not shown as hours of "AUO work" but were included as FLSA hours of work and used in all FLSA computations.
    • Effective May 2, 2002, OPM revised its FLSA regulations to provide that only "on-duty" meal time would be considered to be an hour of work for FLSA section 7(k) employees. (See 5 CFR 551.411(c) with 551.541(b). See also 67 FR 15467, April 2, 2002.) In other words, bona fide meal periods during which an agency completely relieves an AUO employee from duty are not hours of work under FLSA, except as described in paragraph 14 below. This policy is consistent with Department of Labor FLSA regulations at 29 CFR 553.223(b), which allow for the exclusion of meal time from hours of work for a law enforcement employee provided that the employee is completely relieved from duty.
  3. An agency may officially order or approve an employee to work during a scheduled unpaid meal period. If work during the meal period results in hours beyond the overtime threshold, the agency should order or approve the overtime hours in writing, as required by 5 CFR 550.111(c). In the case of an FLSA-nonexempt employee who is not on an alternative work schedule, an agency may be required to count "suffered or permitted" work during a meal period as hours of work.
  4. Some employees, including law enforcement employees, may be scheduled in advance of the workweek to have no unpaid, off-duty meal period. This is appropriate when management decides to keep the employee in duty status during any meal period and not completely relieve the employee from duty. In this case, any meal time is part of the employee's regularly scheduled administrative workweek.
  5. Subject to any established agency policies, an employee receiving AUO pay may have the flexibility to choose to work during a period scheduled as a bona fide unpaid meal period without supervisory approval. (See 5 CFR 550.151 and 550.153.) In other words, even though the employee may have been completely relieved from duty during the meal period and no supervisor has assigned work to the employee, the employee may, in appropriate circumstances, place himself/herself in duty status during a meal period. By definition, such work would be irregular or occasional overtime work, since it was not scheduled by the agency in advance of the employee's administrative workweek. All irregular or occasional overtime work is covered by AUO pay. (See paragraphs 15-17 below.)

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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.

  3. Subject to any agency policies, an AUO employee may choose to perform work without supervisory approval, notwithstanding the normal title 5 requirement that overtime work be ordered or approved in writing. (See 5 CFR 550.151 and 550.153.) By definition, such work is irregular or occasional overtime work, since it was not scheduled in advance of the workweek by the agency. (See application of this principle to work during meal periods in paragraph 14.)

    Note: The fact that an AUO employee does not need supervisory approval to perform irregular overtime work does not mean that the employee has a right to perform work when an authorized supervisor has given a direct order to cease working.

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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.

  2. For most employees, the "straight time rate of pay" is the employee's hourly rate of pay for his or her position (exclusive of any premium, differentials or cash award or bonuses). However, for AUO employees, the straight time rate of pay is equal to basic pay plus AUO pay divided by the hours for which the basic pay plus AUO pay are intended. (See 5 CFR 551.512(b).) Thus, an AUO employee has received the straight time rate of pay for the hours for which basic pay and AUO pay are intended. In other words, the AUO employee has been paid once for hours covered by basic pay and AUO pay, leaving an agency with the obligation of straight time pay for any regularly scheduled overtime hours (not covered by AUO pay) plus a half-rate obligation for all overtime hours to meet the FLSA time-and-one-half overtime requirement. Thus, after taking into account the fact that an AUO employee has already received straight time pay for AUO hours, the employee's entitlement to FLSA overtime pay can be stated as follows:

    Additional overtime pay due an AUO employee under FLSA  =
    (Straight time rate x regularly scheduled overtime hours) + [(½ x hourly regular rate) x all overtime hours]

  3. The "hourly regular rate" is computed by dividing the employee's "total remuneration" (as defined in 5 CFR 551.511(b)) by the total number of hours of work in the workweek (or biweekly pay period if used for FLSA section 7(k) employees) for which such remuneration was paid. (See 5 CFR 551.511(a).) For an AUO employee, total remuneration would include any basic pay (including any locality pay or special rate supplement), AUO pay, straight time pay for regularly scheduled overtime hours, night pay for regularly scheduled night work (non-overtime or overtime), and Sunday pay for regularly scheduled non-overtime work.
  4. As described in paragraph 17, if an employee performs valid irregular or occasional overtime work during a meal period, that meal time would be included in applying the AUO pay provision and would be included in total hours of work used to determine "all overtime hours" in the FLSA overtime pay computation.
  5. The amount of "all overtime hours" is derived by summing (1) the number of regularly scheduled overtime hours in excess of the 8-hourly daily overtime threshold plus (2) the number of total hours in excess of the applicable weekly (or biweekly) overtime threshold (applied while ignoring any overtime hours resulting from application of the 8-hour daily threshold). AUO hours are not counted toward hours in excess of the 8-hour daily threshold, as explained in paragraph 9, but are counted in determining the number of hours in excess of the weekly (or biweekly) threshold. For AUO employees who are law enforcement employees covered by FLSA section 7(k), the weekly overtime threshold is 42.75 hours and the biweekly overtime threshold is 85.5 hours.
  6. Any regularly scheduled hours beyond the 40-hour basic workweek are entitled to straight time pay, even if the employee's total hours of work do not exceed the applicable overtime threshold. (See 5 CFR 551.512(c).) For example, if an AUO employee covered by FLSA section 7(k) and subject to a 42.75-hour weekly overtime threshold worked 42 total hours, including 40 basic hours plus 2 regularly scheduled hours beyond the 40-hour basic workweek, with no irregular overtime hours, the employee would receive the straight time rate for the 2 regularly scheduled hours.
  7. See attachment providing an example FLSA computation for an AUO employee who is FLSA-nonexempt and covered by FLSA section 7(k) as a law enforcement employee.

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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.

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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:
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

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