Collapse to view only § 5545a. Availability pay for criminal investigators
- § 5541. Definitions
- § 5542. Overtime rates; computation
- § 5543. Compensatory time off
- § 5544. Wage-board overtime and Sunday rates; computation
- § 5545. Night, standby, irregular, and hazardous duty differential
- § 5545a. Availability pay for criminal investigators
- § 5545b. Pay for firefighters
- § 5546. Pay for Sunday and holiday work
- § 5546a. Differential pay for certain employees of the Federal Aviation Administration and the Department of Defense
- § 5547. Limitation on premium pay
- § 5548. Regulations
- § 5549. Effect on other statutes
- § 5550. Border patrol rate of pay
- § 5550a. Compensatory time off for religious observances
- § 5550b. Compensatory time off for travel
§ 5541. DefinitionsFor the purpose of this subchapter—
(1) “agency” means—
(A) an Executive agency;
(B) a military department;
(C) an agency in the judicial branch;
(D) the Library of Congress;
(E) the Botanic Garden;
(F) the Office of the Architect of the Capitol; and
(G) the government of the District of Columbia;
(2) “employee” means—
(A) an employee in or under an Executive agency;
(B) an individual employed by the government of the District of Columbia; and
(C) an employee in or under the judicial branch, the Library of Congress, the Botanic Garden, and the Office of the Architect of the Capitol, who occupies a position subject to chapter 51 and subchapter III of chapter 53 of this title;
but does not include—
(i) a justice or judge of the United States;
(ii) the head of an agency other than the government of the District of Columbia;
(iii) a teacher, school official, or employee of the Board of Education of the District of Columbia, whose pay is fixed under chapter 15 of title 31, District of Columbia Code;
(iv) a member of—(I) the Metropolitan Police or the Fire Department of the District of Columbia; or(II) a member of the United States Park Police, other than for purposes of section 1
1 So in original. Probably should be “sections”.
5545(a) and 5546;(v) a student-employee as defined by section 5351 of this title;
[(vi) Repealed. Pub. L. 91–375, § 6(c)(16), Aug. 12, 1970, 84 Stat. 776;]
(vii) an employee outside the continental United States or in Alaska who is paid in accordance with local native prevailing wage rates for the area in which employed;
(viii) an employee of the Tennessee Valley Authority;
(ix) an individual to whom section 1291(a) 2
2 See References in Text note below.
of title 50, appendix, applies;(x) an employee of a Federal land bank, a Federal intermediate credit bank, or a bank for cooperatives;
(xi) an employee whose pay is fixed and adjusted from time to time in accordance with prevailing rates under subchapter IV of chapter 53 of this title, or by a wage board or similar administrative authority serving the same purpose, except as provided by section 5544 or 5550b of this title;
(xii) an employee of the Transportation Corps of the Army on a vessel operated by the United States, a vessel employee of the Environmental Science Services Administration, or a vessel employee of the Department of the Interior;
(xiii) a “teacher” or an individual holding a “teaching position” as defined by section 901 of title 20;
(xiv) a Foreign Service officer;
(xv) a member of the Senior Foreign Service;
(xvi) member of the Senior Executive Service; or
(xvii) a member of the Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service; and
(3) “law enforcement officer” means an employee who—
(A) is a law enforcement officer within the meaning of section 8331(20) or 8401(17);
(B) in the case of an employee who holds a supervisory or administrative position and is subject to subchapter III of chapter 83, but who does not qualify to be considered a law enforcement officer within the meaning of section 8331(20), would so qualify if such employee had transferred directly to such position after serving as a law enforcement officer within the meaning of such section;
(C) in the case of an employee who holds a supervisory or administrative position and is subject to chapter 84, but who does not qualify to be considered a law enforcement officer within the meaning of section 8401(17), would so qualify if such employee had transferred directly to such position after performing duties described in section 8401(17)(A) and (B) for at least 3 years; and
(D) in the case of an employee who is not subject to subchapter III of chapter 83 or chapter 84—
(i) holds a position that the Office of Personnel Management determines would satisfy subparagraph (A), (B), or (C) if the employee were subject to subchapter III of chapter 83 or chapter 84; or
(ii) is a special agent in the Diplomatic Security Service.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 485; Pub. L. 90–83, § 1(4), Sept. 11, 1967, 81 Stat. 196; Pub. L. 91–375, § 6(c)(16), Aug. 12, 1970, 84 Stat. 776; Pub. L. 92–392, § 4, Aug. 14, 1972, 86 Stat. 573; Pub. L. 94–183, § 2(22), Dec. 31, 1975, 89 Stat. 1058; Pub. L. 95–105, title IV, § 412(a)(1), Aug. 17, 1977, 91 Stat. 855; Pub. L. 95–426, title II, § 204(b)(5)(B), Oct. 7, 1978, 92 Stat. 974; Pub. L. 95–454, title IV, § 408(a)(2), Oct. 13, 1978, 92 Stat. 1173; Pub. L. 96–70, title III, § 3302(e)(1), Sept. 27, 1979, 93 Stat. 498; Pub. L. 96–465, title II, § 2304, Oct. 17, 1980, 94 Stat. 2165; Pub. L. 100–325, § 2(i)(1), May 30, 1988, 102 Stat. 582; Pub. L. 101–509, title V, § 529 [title IV, § 411(a)], Nov. 5, 1990, 104 Stat. 1427, 1469; Pub. L. 102–378, § 2(40)(A)–(C), Oct. 2, 1992, 106 Stat. 1351; Pub. L. 104–201, div. C, title XXXV, § 3548(a)(6), Sept. 23, 1996, 110 Stat. 2869; Pub. L. 110–181, div. A, title XI, § 1111(b), Jan. 28, 2008, 122 Stat. 360; Pub. L. 111–282, § 4(c)(2), Oct. 15, 2010, 124 Stat. 3043.)
§ 5542. Overtime rates; computation
(a) For full-time, part-time and intermittent tours of duty, hours of work officially ordered or approved in excess of 40 hours in an administrative workweek, or (with the exception of an employee engaged in professional or technical engineering or scientific activities for whom the first 40 hours of duty in an administrative workweek is the basic workweek and an employee whose basic pay exceeds the minimum rate for GS–10 (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law) for whom the first 40 hours of duty in an administrative workweek is the basic workweek) in excess of 8 hours in a day, performed by an employee are overtime work and shall be paid for, except as otherwise provided by this subchapter, at the following rates:
(1) For an employee whose basic pay is at a rate which does not exceed the minimum rate of basic pay for GS–10 (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law), the overtime hourly rate of pay is an amount equal to one and one-half times the hourly rate of basic pay of the employee, and all that amount is premium pay.
(2) For an employee whose basic pay is at a rate which exceeds the minimum rate of basic pay for GS–10 (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law), the overtime hourly rate of pay is an amount equal to the greater of one and one-half times the hourly rate of the minimum rate of basic pay for GS–10 (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law) or the hourly rate of basic pay of the employee, and all that amount is premium pay.
(3) Notwithstanding paragraphs (1) and (2) of this subsection for an employee of the Department of Transportation who occupies a nonmanagerial position in GS–14 or under and, as determined by the Secretary of Transportation,
(A) the duties of which are critical to the immediate daily operation of the air traffic control system, directly affect aviation safety, and involve physical or mental strain or hardship;
(B) in which overtime work is therefore unusually taxing; and
(C) in which operating requirements cannot be met without substantial overtime work;
the overtime hourly rate of pay is an amount equal to one and one-half times the hourly rate of basic pay of the employee, and all that amount is premium pay.
(4) Notwithstanding paragraph (2) of this subsection, for an employee who is a law enforcement officer, and whose basic pay is at a rate which exceeds the minimum rate of basic pay for GS–10 (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law), the overtime hourly rate of pay is an amount equal to the greater of—
(A) one and one-half times the minimum hourly rate of basic pay for GS–10 (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law); or
(B) the hourly rate of basic pay of the employee,
and all that amount is premium pay.
(5) Notwithstanding paragraphs (1) and (2), for an employee of the Department of the Interior or the United States Forest Service in the Department of Agriculture engaged in emergency wildland fire suppression activities, the overtime hourly rate of pay is an amount equal to one and one-half times the hourly rate of basic pay of the employee, and all that amount is premium pay.
(6)
(A) Notwithstanding paragraphs (1) and (2), for an employee of the Department of the Navy who is assigned to temporary duty outside the United States to perform work aboard, or dockside in direct support of, naval vessels and who would be nonexempt under the Fair Labor Standards Act of 1938 but for the application of the foreign area exemption in section 13(f) of that Act (29 U.S.C. 213(f)), the employee shall be coded and paid overtime as if the employee’s exemption status under that Act is the same as it is at the employee’s permanent duty station.
(B) Subparagraph (A) shall expire on September 30, 2026.
(b) For the purpose of this subchapter—
(1) unscheduled overtime work performed by an employee on a day when work was not scheduled for him, or for which he is required to return to his place of employment, is deemed at least 2 hours in duration; and
(2) time spent in a travel status away from the official-duty station of an employee is not hours of employment unless—
(A) the time spent is within the days and hours of the regularly scheduled administrative workweek of the employee, including regularly scheduled overtime hours; or
(B) the travel (i) involves the performance of work while traveling, (ii) is incident to travel that involves the performance of work while traveling, (iii) is carried out under arduous conditions, or (iv) results from an event which could not be scheduled or controlled administratively, including travel by an employee to such an event and the return of such employee from such event to his or her official-duty station.
(c) Subsection (a) shall not apply to an employee who is subject to the overtime pay provisions of section 7 of the Fair labor 1
1 So in original. Probably should be capitalized.
Standards Act of 1938. In the case of an employee who would, were it not for the preceding sentence, be subject to this section, the Office of Personnel Management shall by regulation prescribe what hours shall be deemed to be hours of work and what hours of work shall be deemed to be overtime hours for the purpose of such section 7 so as to ensure that no employee receives less pay by reason of the preceding sentence.(d) In applying subsection (a) of this section with respect to any criminal investigator who is paid availability pay under section 5545a—
(1) such investigator shall be compensated under such subsection (a), at the rates there provided, for overtime work which is scheduled in advance of the administrative workweek—
(A) in excess of 10 hours on a day during such investigator’s basic 40 hour workweek; or
(B) on a day outside such investigator’s basic 40 hour workweek; and
(2) such investigator shall be compensated for all other overtime work under section 5545a.
(e) Notwithstanding subsection (d)(1) of this section, all hours of overtime work scheduled in advance of the administrative workweek shall be compensated under subsection (a) if that work involves duties as authorized by section 3056(a) of title 18 or section 37(a)(3) of the State Department Basic Authorities Act of 1956, and if the investigator performs, on that same day, at least 2 hours of overtime work not scheduled in advance of the administrative workweek.
(f) In applying subsection (a) of this section with respect to a firefighter who is subject to section 5545b—
(1) such subsection shall be deemed to apply to hours of work officially ordered or approved in excess of 106 hours in a biweekly pay period, or, if the agency establishes a weekly basis for overtime pay computation, in excess of 53 hours in an administrative workweek; and
(2) the overtime hourly rate of pay is an amount equal to one and one-half times the hourly rate of basic pay under section 5545b(b)(1)(A) or (c)(1)(B), as applicable, and such overtime hourly rate of pay may not be less than such hourly rate of basic pay in applying the limitation on the overtime rate provided in paragraph (2) of such subsection (a).
(g) In applying subsection (a) with respect to a border patrol agent covered by section 5550, the following rules apply:
(1) Notwithstanding the matter preceding paragraph (1) in subsection (a), for a border patrol agent who is assigned to the level 1 border patrol rate of pay under section 5550—
(A) hours of work in excess of 100 hours during a 14-day biweekly pay period shall be overtime work; and
(B) the border patrol agent—
(i) shall receive pay at the overtime hourly rate of pay (as determined in accordance with paragraphs (1) and (2) of subsection (a)) for hours of overtime work that are officially ordered or approved in advance of the workweek; and
(ii) except as provided in paragraphs (4) and (5), shall receive compensatory time off for an equal amount of time spent performing overtime work that is not overtime work described in clause (i).
(2) Notwithstanding the matter preceding paragraph (1) in subsection (a), for a border patrol agent who is assigned to the level 2 border patrol rate of pay under section 5550—
(A) hours of work in excess of 90 hours during a 14-day biweekly pay period shall be overtime work; and
(B) the border patrol agent—
(i) shall receive pay at the overtime hourly rate of pay (as determined in accordance with paragraphs (1) and (2) of subsection (a)) for hours of overtime work that are officially ordered or approved in advance of the workweek; and
(ii) except as provided in paragraphs (4) and (5), shall receive compensatory time off for an equal amount of time spent performing overtime work that is not overtime work described in clause (i).
(3) Notwithstanding the matter preceding paragraph (1) in subsection (a), for a border patrol agent who is assigned to the basic border patrol rate of pay under section 5550—
(A) hours of work in excess of 80 hours during a 14-day biweekly pay period shall be overtime work; and
(B) the border patrol agent—
(i) shall receive pay at the overtime hourly rate of pay (as determined in accordance with paragraphs (1) and (2) of subsection (a)) for hours of overtime work that are officially ordered or approved in advance of the workweek; and
(ii) except as provided in paragraphs (4) and (5), shall receive compensatory time off for an equal amount of time spent performing overtime work that is not overtime work described in clause (i).
(4)
(A) Except as provided in subparagraph (B), during a 14-day biweekly pay period, a border patrol agent may not earn compensatory time off for more than 10 hours of overtime work.
(B) U.S. Customs and Border Protection may, as it determines appropriate, waive the limitation under subparagraph (A) for an individual border patrol agent for hours of irregular or occasional overtime work, but such waiver must be approved in writing in advance of the performance of any such work for which compensatory time off is earned under paragraph (1)(B)(ii), (2)(B)(ii), or (3)(B)(ii). If a waiver request by a border patrol agent is denied, the border patrol agent may not be ordered to perform the associated overtime work.
(5) A border patrol agent—
(A) may not earn more than 240 hours of compensatory time off during a leave year;
(B) shall use any hours of compensatory time off not later than the end of the 26th pay period after the pay period during which the compensatory time off was earned;
(C) shall be required to use 1 hour of compensatory time off for each hour of regular time not worked for which the border patrol agent is not on paid leave or other paid time off or does not substitute time in accordance with section 5550(f);
(D) shall forfeit any compensatory time off not used in accordance with this paragraph and, regardless of circumstances, shall not be entitled to any cash value for compensatory time earned under section 5550;
(E) shall not receive credit towards the computation of the annuity of the border patrol agent for compensatory time, whether used or not; and
(F) shall not be credited with compensatory time off if the value of such time off would cause the aggregate premium pay of the border patrol agent to exceed the limitation established under section 5547 in the period in which it was earned.
(h)
(1)
(A) Notwithstanding any other provision of this section or section 5545b, any hours worked by a firefighter under a qualified trade-of-time arrangement shall be disregarded for purposes of any determination relating to eligibility for, or the amount of, any overtime pay under this section, including overtime pay under the Fair Labor Standards Act in accordance with subsection (c).
(B) The Director of the Office of Personnel Management—
(i) shall identify the situations in which a firefighter shall be deemed to have worked hours actually worked by a substituting firefighter under a qualified trade-of-time arrangement; and
(ii) may adopt necessary policies governing the treatment of both a substituting and substituted firefighter under a qualified trade-of-time arrangement, without regard to how those firefighters would otherwise be treated under other provisions of law or regulation.
(2) In this subsection—
(A) the term “firefighter” means an employee—
(i) the work schedule of whom includes 24-hour duty shifts; and
(ii) who—(I) is a firefighter, as defined in section 8331(21) or 8401(14);(II) in the case of an employee who holds a supervisory or administrative position and is subject to subchapter III of chapter 83, but who does not qualify to be considered a firefighter within the meaning of section 8331(21), would so qualify if such employee had transferred directly to such position after serving as a firefighter within the meaning of such section;(III) in the case of an employee who holds a supervisory or administrative position and is subject to chapter 84, but who does not qualify to be considered a firefighter within the meaning of section 8401(14), would so qualify if such employee had transferred directly to such position after performing duties described in section 8401(14)(A) and (B) for at least 3 years; and(IV) in the case of an employee who is not subject to subchapter III of chapter 83 or chapter 84, holds a position that the Office of Personnel Management determines would satisfy subclause (I), (II), or (III) if the employee were subject to subchapter III of chapter 83 or chapter 84; and
(B) the term “qualified trade-of-time arrangement” means an arrangement under which 2 firefighters who are subject to the supervision of the same fire chief agree, solely at their option and with the approval of the employing agency, to substitute for one another during scheduled work hours in the performance of work in the same capacity.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 485; Pub. L. 90–83, § 1(24), Sept. 11, 1967, 81 Stat. 200; Pub. L. 90–206, title II, § 222(a), Dec. 16, 1967, 81 Stat. 641; Pub. L. 90–556, § 1, Oct. 10, 1968, 82 Stat. 969; Pub. L. 92–194, Dec. 15, 1971, 85 Stat. 648; Pub. L. 98–473, title I, § 101(c) [title III, § 322], Oct. 12, 1984, 98 Stat. 1837, 1874; Pub. L. 101–509, title V, § 529 [title I, § 101(b)(3)(E), title II, § 210(1), title IV, § 410(a)], Nov. 5, 1990, 104 Stat. 1427, 1439, 1460, 1468; Pub. L. 102–378, § 2(41), Oct. 2, 1992, 106 Stat. 1352; Pub. L. 103–329, title VI, § 633(c), Sept. 30, 1994, 108 Stat. 2427; Pub. L. 104–52, title V, § 531, Nov. 19, 1995, 109 Stat. 496; Pub. L. 105–277, div. A, § 101(b) [title IV, § 407(c)(2)], (h) [title VI, § 628(a)(1)], div. G, subdiv. B, title XXIII, § 2316(c)(2), Oct. 21, 1998, 112 Stat. 2681–50, 2681–102, 2681–480, 2681–519, 2681–829; Pub. L. 106–558, § 2(a), Dec. 21, 2000, 114 Stat. 2776; Pub. L. 108–136, div. A, title XI, § 1121, Nov. 24, 2003, 117 Stat. 1636; Pub. L. 111–383, div. A, title XI, § 1105(a), Jan. 7, 2011, 124 Stat. 4383; Pub. L. 113–277, § 2(c)(1), Dec. 18, 2014, 128 Stat. 3002; Pub. L. 113–291, div. A, title XI, § 1106(a), Dec. 19, 2014, 128 Stat. 3526; Pub. L. 114–92, div. A, title XI, § 1103, Nov. 25, 2015, 129 Stat. 1022; Pub. L. 114–328, div. A, title XI, § 1108, Dec. 23, 2016, 130 Stat. 2449; Pub. L. 115–91, div. A, title XI, § 1109, Dec. 12, 2017, 131 Stat. 1631; Pub. L. 115–232, div. A, title XI, § 1103, Aug. 13, 2018, 132 Stat. 2001; Pub. L. 116–283, div. A, title XI, § 1113, Jan. 1, 2021, 134 Stat. 3894; Pub. L. 117–81, div. A, title XI, §§ 1108, 1110, Dec. 27, 2021, 135 Stat. 1951, 1952.)
§ 5543. Compensatory time off
(a) The head of an agency may—
(1) on request of an employee, grant the employee compensatory time off from his scheduled tour of duty instead of payment under section 5542 or section 7 of the Fair Labor Standards Act of 1938 for an equal amount of time spent in irregular or occasional overtime work; and
(2) provide that an employee whose rate of basic pay is in excess of the maximum rate of basic pay for GS–10 (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law) shall be granted compensatory time off from his scheduled tour of duty equal to the amount of time spent in irregular or occasional overtime work instead of being paid for that work under section 5542 of this title.
(b) The head of an agency may, on request of an employee, grant the employee compensatory time off from the employee’s scheduled tour of duty instead of payment under section 5544 or section 7 of the Fair Labor Standards Act of 1938 for an equal amount of time spent in irregular or occasional overtime work. An agency head may not require an employee to be compensated for overtime work with an equivalent amount of compensatory time-off from the employee’s tour of duty.
(c) The Architect of the Capitol may grant an employee paid on an annual basis compensatory time off from duty instead of overtime pay for overtime work.
(d)
(1) The appropriate Secretary may, on request of an employee of a nonappropriated fund instrumentality of the Department of Defense or the Coast Guard described in section 2105(c), grant such employee compensatory time off from duty instead of overtime pay for overtime work.
(2) For purposes of this subsection, the term “appropriate Secretary” means—
(A) with respect to an employee of a nonappropriated fund instrumentality of the Department of Defense, the Secretary of Defense; and
(B) with respect to an employee of a nonappropriated fund instrumentality of the Coast Guard, the Secretary of the Executive department in which it is operating.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 486; Pub. L. 90–83, § 1(25), Sept. 11, 1967, 81 Stat. 200; Pub. L. 101–509, title V, § 529 [title I, § 101(b)(3)(E), title II, § 210(2)], Nov. 5, 1990, 104 Stat. 1427, 1439, 1460; Pub. L. 104–201, div. A, title XVI, § 1610(a), Sept. 23, 1996, 110 Stat. 2738; Pub. L. 109–163, div. A, title VI, § 674, Jan. 6, 2006, 119 Stat. 3319.)
§ 5544. Wage-board overtime and Sunday rates; computation
(a) An employee whose pay is fixed and adjusted from time to time in accordance with prevailing rates under section 5343 or 5349 of this title, or by a wage board or similar administrative authority serving the same purpose, is entitled to overtime pay for overtime work in excess of 8 hours a day or 40 hours a week. However, an employee subject to this subsection who regularly is required to remain at or within the confines of his post of duty in excess of 8 hours a day in a standby or on-call status is entitled to overtime pay only for hours of duty, exclusive of eating and sleeping time, in excess of 40 a week. The overtime hourly rate of pay is computed as follows:
(1) If the basic rate of pay of the employee is fixed on a basis other than an annual or monthly basis, multiply the basic hourly rate of pay by not less than one and one-half.
(2) If the basic rate of pay of the employee is fixed on an annual basis, divide the basic annual rate of pay by 2,087, and multiply the quotient by one and one-half.
(3) If the basic rate of pay of the employee is fixed on a monthly basis, multiply the basic monthly rate of pay by 12 to derive a basic annual rate of pay, divide the basic annual rate of pay by 2,087, and multiply the quotient by one and one-half.
An employee subject to this subsection whose regular work schedule includes an 8-hour period of service a part of which is on Sunday is entitled to additional pay at the rate of 25 percent of his hourly rate of basic pay for each hour of work performed during that 8-hour period of service. For employees serving outside the United States in areas where Sunday is a routine workday and another day of the week is officially recognized as the day of rest and worship, the Secretary of State may designate the officially recognized day of rest and worship as the day with respect to which the preceding sentence shall apply instead of Sunday. Time spent in a travel status away from the official duty station of an employee subject to this subsection is not hours of work unless the travel (i) involves the performance of work while traveling, (ii) is incident to travel that involves the performance of work while traveling, (iii) is carried out under arduous conditions, or (iv) results from an event which could not be scheduled or controlled administratively (including travel by the employee to such event and the return of the employee from such event to the employee’s official duty station). The first and third sentences of this subsection shall not be applicable to an employee who is subject to the overtime pay provisions of section 7 of the Fair Labor Standards Act of 1938. In the case of an employee who would, were it not for the preceding sentence, be subject to the first and third sentences of this subsection, the Office of Personnel Management shall by regulation prescribe what hours shall be deemed to be hours of work and what hours of work shall be deemed to be overtime hours for the purpose of such section 7 so as to ensure that no employee receives less pay by reason of the preceding sentence.
(b) An employee under the Office of the Architect of the Capitol who is paid on a daily or hourly basis and who is not subject to chapter 51 and subchapter III of chapter 53 of this title is entitled to overtime pay for overtime work in accordance with subsection (a) of this section. The overtime hourly rate of pay is computed in accordance with subsection (a)(1) of this section.
(c) The provisions of this section, including the last two sentences of subsection (a) and the provisions of section 5543(b), shall apply to a prevailing rate employee described in section 5342(a)(2)(B).
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 486; Pub. L. 90–83, § 1(26)(A), Sept. 11, 1967, 81 Stat. 200; Pub. L. 90–206, title II, § 222(d), Dec. 16, 1967, 81 Stat. 641; Pub. L. 92–392, § 5, Aug. 19, 1972, 86 Stat. 573; Pub. L. 101–509, title V, § 529 [title II, § 210(3)], Nov. 5, 1990, 104 Stat. 1427, 1460; Pub. L. 102–378, § 2(42), Oct. 2, 1992, 106 Stat. 1352; Pub. L. 104–201, div. A, title XVI, § 1610(b), Sept. 23, 1996, 110 Stat. 2738; Pub. L. 105–277, div. G, subdiv. B, title XXIII, § 2317(1), Oct. 21, 1998, 112 Stat. 2681–829; Pub. L. 110–181, div. A, title XI, § 1110, Jan. 28, 2008, 122 Stat. 360.)
§ 5545. Night, standby, irregular, and hazardous duty differential
(a) Except as provided by subsection (b) of this section, nightwork is regularly scheduled work between the hours of 6:00 p.m. and 6:00 a.m., and includes—
(1) periods of absence with pay during these hours due to holidays; and
(2) periods of leave with pay during these hours if the periods of leave with pay during a pay period total less than 8 hours.
Except as otherwise provided by subsection (c) of this section, an employee is entitled to pay for nightwork at his rate of basic pay plus premium pay amounting to 10 percent of that basic rate. This subsection and subsection (b) of this section do not modify section 5141 of title 31, or other statute authorizing additional pay for nightwork.
(b) The head of an agency may designate a time after 6:00 p.m. and a time before 6:00 a.m. as the beginning and end, respectively, of nightwork for the purpose of subsection (a) of this section, at a post outside the United States where the customary hours of business extend into the hours of nightwork provided by subsection (a) of this section.
(c) The head of an agency, with the approval of the Office of Personnel Management, may provide that—
(1) an employee in a position requiring him regularly to remain at, or within the confines of, his station during longer than ordinary periods of duty, a substantial part of which consists of remaining in a standby status rather than performing work, shall receive premium pay for this duty on an annual basis instead of premium pay provided by other provisions of this subchapter, except for irregular, unscheduled overtime duty in excess of his regularly scheduled weekly tour. Premium pay under this paragraph is determined as an appropriate percentage, not in excess of 25 percent, of such part of the rate of basic pay for the position as does not exceed the minimum rate of basic pay for GS–10 (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law) (or, for a position described in section 5542(a)(3) of this title, of the basic pay of the position), by taking into consideration the number of hours of actual work required in the position, the number of hours required in a standby status at or within the confines of the station, the extent to which the duties of the position are made more onerous by night, Sunday, or holiday work, or by being extended over periods of more than 40 hours a week, and other relevant factors; or
(2) an employee in a position in which the hours of duty cannot be controlled administratively, and which requires substantial amounts of irregular, unscheduled overtime duty with the employee generally being responsible for recognizing, without supervision, circumstances which require the employee to remain on duty, shall receive premium pay for this duty on an annual basis instead of premium pay provided by other provisions of this subchapter, except for regularly scheduled overtime, night, and Sunday duty, and for holiday duty. Premium pay under this paragraph is an appropriate percentage, not less than 10 percent nor more than 25 percent, of the rate of basic pay for the position, as determined by taking into consideration the frequency and duration of irregular, unscheduled overtime duty required in the position.
(d) The Office shall establish a schedule or schedules of pay differentials for duty involving unusual physical hardship or hazard, and for any hardship or hazard related to asbestos, such differentials shall be determined by applying occupational safety and health standards consistent with the permissible exposure limit promulgated by the Secretary of Labor under the Occupational Safety and Health Act of 1970. Under such regulations as the Office may prescribe, and for such minimum periods as it determines appropriate, an employee to whom chapter 51 and subchapter III of chapter 53 of this title
(1) does not apply to an employee in a position the classification of which takes into account the degree of physical hardship or hazard involved in the performance of the duties thereof, except—
(A) an employee in an occupational series covering positions for which the primary duties involve the prevention, control, suppression, or management of wildland fires, as determined by the Office; and
(B) in such other circumstances as the Office may by regulation prescribe; and
(2) may not exceed an amount equal to 25 percent of the rate of basic pay applicable to the employee.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 487; Pub. L. 90–83, § 1(27), Sept. 11, 1967, 81 Stat. 200; Pub. L. 90–206, title II, § 217, Dec. 16, 1967, 81 Stat. 638; Pub. L. 90–556, § 2, Oct. 10, 1968, 82 Stat. 969; Pub. L. 91–231, § 8, Apr. 15, 1970, 84 Stat. 198; Pub. L. 94–183, § 2(23), Dec. 31, 1975, 89 Stat. 1058; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–54, § 2(a)(32), Aug. 14, 1979, 93 Stat. 383; Pub. L. 97–258, § 3(a)(13), Sept. 13, 1982, 96 Stat. 1063; Pub. L. 101–173, § 1(a), Nov. 27, 1989, 103 Stat. 1292; Pub. L. 101–509, title V, § 529 [title I, § 101(b)(3)(E), title II, § 203], Nov. 5, 1990, 104 Stat. 1427, 1439, 1456; Pub. L. 102–378, § 3(2), Oct. 2, 1992, 106 Stat. 1355; Pub. L. 108–136, div. A, title XI, § 1122(b), Nov. 24, 2003, 117 Stat. 1637; Pub. L. 117–58, div. D, title VIII, § 40803(d)(2), Nov. 15, 2021, 135 Stat. 1100.)
§ 5545a. Availability pay for criminal investigators
(a) For purposes of this section—
(1) the term “available” refers to the availability of a criminal investigator and means that an investigator shall be considered generally and reasonably accessible by the agency employing such investigator to perform unscheduled duty based on the needs of an agency;
(2) the term “criminal investigator” means a law enforcement officer as defined under section 5541(3) (other than an officer occupying a position under title II of Public Law 99–399, subject to subsection (k)) who is required to—
(A) possess a knowledge of investigative techniques, laws of evidence, rules of criminal procedure, and precedent court decisions concerning admissibility of evidence, constitutional rights, search and seizure, and related issues;
(B) recognize, develop, and present evidence that reconstructs events, sequences and time elements for presentation in various legal hearings and court proceedings;
(C) demonstrate skills in applying surveillance techniques, undercover work, and advising and assisting the United States Attorney in and out of court;
(D) demonstrate the ability to apply the full range of knowledge, skills, and abilities necessary for cases which are complex and unfold over a long period of time (as distinguished from certain other occupations that require the use of some investigative techniques in short-term situations that may end in arrest or detention);
(E) possess knowledge of criminal laws and Federal rules of procedure which apply to cases involving crimes against the United States, including—
(i) knowledge of the elements of a crime;
(ii) evidence required to prove the crime;
(iii) decisions involving arrest authority;
(iv) methods of criminal operations; and
(v) availability of detection devices; and
(F) possess the ability to follow leads that indicate a crime will be committed rather than initiate an investigation after a crime is committed;
(3) the term “unscheduled duty” means hours of duty a criminal investigator works, or is determined to be available for work, that are not—
(A) part of the 40 hours in the basic work week of the investigator; or
(B) overtime hours paid under section 5542; and
(4) the term “regular work day” means each day in the investigator’s basic work week during which the investigator works at least 4 hours that are not overtime hours paid under section 5542 or hours considered part of section 5545a.
(b) The purpose of this section is to provide premium pay to criminal investigators to ensure the availability of criminal investigators for unscheduled duty in excess of a 40 hour work week based on the needs of the employing agency.
(c) Each criminal investigator shall be paid availability pay as provided under this section. Availability pay shall be paid to ensure the availability of the investigator for unscheduled duty. The investigator is generally responsible for recognizing, without supervision, circumstances which require the investigator to be on duty or be available for unscheduled duty based on the needs of the agency. Availability pay provided to a criminal investigator for such unscheduled duty shall be paid instead of premium pay provided by other provisions of this subchapter, except premium pay for regularly scheduled overtime work as provided under section 5542, night duty, Sunday duty, and holiday duty.
(d)
(1) A criminal investigator shall be paid availability pay, if the average of hours described under paragraph (2)(A) and (B) is equal to or greater than 2 hours.
(2) The hours referred to under paragraph (1) are—
(A) the annual average of unscheduled duty hours worked by the investigator in excess of each regular work day; and
(B) the annual average of unscheduled duty hours such investigator is available to work on each regular work day upon request of the employing agency.
(3) Unscheduled duty hours which are worked by an investigator on days that are not regular work days shall be considered in the calculation of the annual average of unscheduled duty hours worked or available for purposes of certification.
(4) An investigator shall be considered to be available when the investigator cannot reasonably and generally be accessible due to a status or assignment which is the result of an agency direction, order, or approval as provided under subsection (f)(1).
(e)
(1) Each criminal investigator receiving availability pay under this section and the appropriate supervisory officer, to be designated by the head of the agency, shall make an annual certification to the head of the agency that the investigator has met, and is expected to meet, the requirements of subsection (d). The head of a law enforcement agency may prescribe regulations necessary to administer this subsection.
(2) Involuntary reduction in pay resulting from a denial of certification under paragraph (1) shall be a reduction in pay for purposes of section 7512(4) of this title.
(f)
(1) A criminal investigator who is eligible for availability pay shall receive such pay during any period such investigator is—
(A) attending agency sanctioned training;
(B) on agency approved sick leave or annual leave;
(C) on agency ordered travel status; or
(D) on excused absence with pay for relocation purposes.
(2) Notwithstanding paragraph (1)(A), agencies or departments may provide availability pay to investigators during training which is considered initial, basic training usually provided in the first year of service.
(3) Agencies or departments may provide availability pay to investigators when on excused absence with pay, except as provided in paragraph (1)(D).
(g) Section 5545(c) shall not apply to any criminal investigator who is paid availability pay under this section.
(h) Availability pay under this section shall be—
(1) 25 percent of the rate of basic pay for the position; and
(2) treated as part of the basic pay for purposes of—
(A) sections 5595(c), 8114(e), 8331(3), and 8704(c); and
(B) such other purposes as may be expressly provided for by law or as the Office of Personnel Management may by regulation prescribe.
(i) The provisions of subsections (a)–(h) providing for availability pay shall apply to any employee of the U.S. Customs and Border Protection’s Air and Marine Operations, or any successor organization, who is a law enforcement officer as defined under section 5541(3). For the purpose of this section, section 5542(d) of this title, and section 13(a)(16) and (b)(30) of the Fair Labor Standards Act of 1938 (29 U.S.C. 213(a)(16) and (b)(30)), such employee shall be deemed to be a criminal investigator as defined in this section. The Office of Personnel Management may prescribe regulations to carry out this subsection.
(j) Notwithstanding any other provision of this section, any Office of Inspector General which employs fewer than 5 criminal investigators may elect not to cover such criminal investigators under this section.
(k)
(1) For purposes of this section, the term “criminal investigator” includes a special agent occupying a position under title II of Public Law 99–399 if such special agent—
(A) meets the definition of such term under paragraph (2) of subsection (a) (applied disregarding the parenthetical matter before subparagraph (A) thereof); and
(B) such special agent satisfies the requirements of subsection (d) without taking into account any hours described in paragraph (2)(B) thereof.
(2) In applying subsection (h) with respect to a special agent under this subsection—
(A) any reference in such subsection to “basic pay” shall be considered to include amounts designated as “salary”;
(B) paragraph (2)(A) of such subsection shall be considered to include (in addition to the provisions of law specified therein) sections 609(b)(1), 805, 806, and 856 of the Foreign Service Act of 1980; and
(C) paragraph (2)(B) of such subsection shall be applied by substituting for “Office of Personnel Management” the following: “Office of Personnel Management or the Secretary of State (to the extent that matters exclusively within the jurisdiction of the Secretary are concerned)”.
(Added Pub. L. 103–329, title VI, § 633(b)(1), Sept. 30, 1994, 108 Stat. 2425; amended Pub. L. 104–19, title I, §§ 901, 902(a), July 27, 1995, 109 Stat. 230; Pub. L. 104–208, div. A, title I, § 101(f) [title VI, § 659 [title II, § 206(b)(2)]], Sept. 30, 1996, 110 Stat. 3009–314, 3009–372, 3009–378; Pub. L. 105–277, div. A, § 101(b) [title IV, § 407(a), (c)(1)], div. G, subdiv. B, title XXIII, § 2316(a), (c)(1), Oct. 21, 1998, 112 Stat. 2681–50, 2681–101, 2681–102, 2681–828; Pub. L. 114–250, § 1(a), Dec. 8, 2016, 130 Stat. 1001.)
§ 5545b. Pay for firefighters
(a) This section applies to an employee whose position is classified in the firefighter occupation in conformance with the GS–081 standard published by the Office of Personnel Management, and whose normal work schedule, as in effect throughout the year, consists of regular tours of duty which average at least 106 hours per biweekly pay period.
(b)
(1) If the regular tour of duty of a firefighter subject to this section generally consists of 24-hour shifts, rather than a basic 40-hour workweek (as determined under regulations prescribed by the Office of Personnel Management), section 5504(b) shall be applied as follows in computing pay—
(A) paragraph (1) of such section shall be deemed to require that the annual rate be divided by 2756 to derive the hourly rate; and
(B) the computation of such firefighter’s daily, weekly, or biweekly rate shall be based on the hourly rate under subparagraph (A);
(2) For the purpose of sections 5595(c), 5941, 8331(3), and 8704(c), and for such other purposes as may be expressly provided for by law or as the Office of Personnel Management may by regulation prescribe, the basic pay of a firefighter subject to this subsection shall include an amount equal to the firefighter’s basic hourly rate (as computed under paragraph (1)(A)) for all hours in such firefighter’s regular tour of duty (including overtime hours).
(c)
(1) If the regular tour of duty of a firefighter subject to this section includes a basic 40-hour workweek (as determined under regulations prescribed by the Office of Personnel Management), section 5504(b) shall be applied as follows in computing pay—
(A) the provisions of such section shall apply to the hours within the basic 40-hour workweek;
(B) for hours outside the basic 40-hour workweek, such section shall be deemed to require that the hourly rate be derived by dividing the annual rate by 2756; and
(C) the computation of such firefighter’s daily, weekly, or biweekly rate shall be based on subparagraphs (A) and (B), as each applies to the hours involved.
(2) For purposes of sections 5595(c), 5941, 8331(3), and 8704(c), and for such other purposes as may be expressly provided for by law or as the Office of Personnel Management may by regulation prescribe, the basic pay of a firefighter subject to this subsection shall include—
(A) an amount computed under paragraph (1)(A) for the hours within the basic 40-hour workweek; and
(B) an amount equal to the firefighter’s basic hourly rate (as computed under paragraph (1)(B)) for all hours outside the basic 40-hour workweek that are within such firefighter’s regular tour of duty (including overtime hours).
(d)
(1) A firefighter who is subject to this section shall receive overtime pay in accordance with section 5542, but shall not receive premium pay provided by other provisions of this subchapter.
(2) For the purpose of applying section 7(k) of the Fair Labor Standards Act of 1938 to a firefighter who is subject to this section, no violation referred to in such section 7(k) shall be deemed to have occurred if the requirements of section 5542(a) are met, applying section 5542(a) as provided in subsection (f) of that section: Provided, That the overtime hourly rate of pay for such firefighter shall in all cases be an amount equal to one and one-half times the firefighter’s hourly rate of basic pay under subsection (b)(1)(A) or (c)(1)(B) of this section, as applicable.
(3) The Office of Personnel Management may prescribe regulations, with respect to firefighters subject to this section, that would permit an agency to reduce or eliminate the variation in the amount of firefighters’ biweekly pay caused by work scheduling cycles that result in varying hours in the regular tours of duty from pay period to pay period. Under such regulations, the pay that a firefighter would otherwise receive for regular tours of duty over the work scheduling cycle shall, to the extent practicable, remain unaffected.
(4)
(Added Pub. L. 105–277, div. A, § 101(h) [title VI, § 628(a)(2)], Oct. 21, 1998, 112 Stat. 2681–480, 2681–519; amended Pub. L. 106–554, § 1(a)(3) [title VI, § 641(a)], Dec. 21, 2000, 114 Stat. 2763, 2763A–169.)
§ 5546. Pay for Sunday and holiday work
(a) An employee who performs work during a regularly scheduled 8-hour period of service which is not overtime work as defined by section 5542(a) of this title a part of which is performed on Sunday is entitled to pay for the entire period of service at the rate of his basic pay, plus premium pay at a rate equal to 25 percent of his rate of basic pay. For employees serving outside the United States in areas where Sunday is a routine workday and another day of the week is officially recognized as the day of rest and worship, the Secretary of State may designate the officially recognized day of rest and worship as the day with respect to which the preceding sentence shall apply instead of Sunday.
(b) An employee who performs work on a holiday designated by Federal statute, Executive order, or with respect to an employee of the government of the District of Columbia, by order of the District of Columbia Council, is entitled to pay at the rate of his basic pay, plus premium pay at a rate equal to the rate of his basic pay, for that holiday work which is not—
(1) in excess of 8 hours; or
(2) overtime work as defined by section 5542(a) of this title.
(c) An employee who is required to perform any work on a designated holiday is entitled to pay for at least 2 hours of holiday work.
(d) An employee who performs overtime work as defined by section 5542(a) of this title on a Sunday or a designated holiday is entitled to pay for that overtime work in accordance with section 5542(a) of this title.
(e) Premium pay under this section is in addition to premium pay which may be due for the same work under section 5545(a) and (b) of this title, providing premium pay for nightwork.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 488; Pub. L. 90–83, § 1(29), Sept. 11, 1967, 81 Stat. 201; Pub. L. 90–623, § 1(13), Oct. 22, 1968, 82 Stat. 1312; Pub. L. 105–277, div. G, subdiv. B, title XXIII, § 2317(2), Oct. 21, 1998, 112 Stat. 2681–829.)
§ 5546a. Differential pay for certain employees of the Federal Aviation Administration and the Department of Defense
(a) The Administrator of the Federal Aviation Administration (hereafter in this section referred to as the “Administrator”) and the Secretary of Defense (hereafter in this section referred to as the “Secretary”) may pay premium pay at the rate of 5 per centum of the applicable rate of basic pay to—
(1) any employee of the Federal Aviation Administration or the Department of Defense who is—
(A) occupying a position in the air traffic controller series classified not lower than GS–9 and located in an air traffic control center or terminal or in a flight service station;
(B) assigned to a position classified not lower than GS–09 or WG–10 located in an airway facilities sector; or
(C) assigned to a flight inspection crew-member position classified not lower than GS–11 located in a flight inspection field office,
the duties of whose position are determined by the Administrator or the Secretary to be directly involved in or responsible for the operation and maintenance of the air traffic control system; and
(2) any employee of the Federal Aviation Administration or the Department of Defense who is assigned to a flight test pilot position classified not lower than GS-12 located in a region or center, the duties of whose position are determined by the Administrator or the Secretary to be unusually taxing, physically or mentally, and to be critical to the advancement of aviation safety; and
(3) any employee of the Federal Aviation Administration who occupies a position at the Federal Aviation Administration Academy, Oklahoma City, Oklahoma, the duties of which are determined by the Administrator to require the individual to be actively engaged in or directly responsible for training employees to perform the duties of a position described in subparagraph (a); (b); or (c) or paragraph (1) of this subsection, and who, immediately prior to assuming such position at such Academy, occupied a position referred to in subparagraph (a), (b), or (c) of paragraph (1) of this subsection.
(b) The premium pay payable under any subsection of this section is in addition to basic pay and to premium pay payable under any other subsection of this section and any other provision of this subchapter.
(c)
(1) The Administrator or the Secretary may pay premium pay to any employee of the Federal Aviation Administration or the Department of Defense who—
(A) is an air traffic controller located in an air traffic control center or terminal;
(B) is not required as a condition of employment to be certified by the Administrator or the Secretary as proficient and medically qualified to perform duties including the separation and control of air traffic; and
(C) is so certified.
(2) Premium pay paid under paragraph (1) of this subsection shall be paid at the rate of 1.6 per centum of the applicable rate of basic pay for so long as such employee is so certified.
(d)
(1) The Administrator or the Secretary may pay premium pay to any air traffic controller of the Federal Aviation Administration or the Department of Defense who is assigned by the Administrator or the Secretary to provide on-the-job training to another air traffic controller while such other air traffic controller is directly involved in the separation and control of live air traffic.
(2) Premium pay paid under paragraph (1) of this subsection shall be paid at the rate of 10 per centum of the applicable hourly rate of basic pay times the number of hours and portion of an hour during which the air traffic controller of the Federal Aviation Administration or the Department of Defense provides on-the-job training.
(e)
(1) The Administrator or the Secretary may pay premium pay to any air traffic controller or flight service station specialist of the Federal Aviation Administration or the Department of Defense who, while working a regularly scheduled eight-hour period of service, is required by his supervisor to work during the fourth through sixth hour of such period without a break of thirty minutes for a meal.
(2) Premium pay paid under paragraph (1) of this subsection shall be paid at the rate of 50 per centum of one-half of the applicable hourly rate of basic pay.
(f)
(1) The Administrator or the Secretary shall prescribe standards for determining which air traffic controllers and other employees of the Federal Aviation Administration or the Department of Defense are to be paid premium pay under this section.
(2) The Administrator and the Secretary may prescribe such rules as he determines are necessary to carry out the provisions of this section.
(Added Pub. L. 97–276, § 151(c)(1), (d), Oct. 2, 1982, 96 Stat. 1200, 1201; amended Pub. L. 97–377, title I, § 145(a), formerly § 145, Dec. 21, 1982, 96 Stat. 1917, renumbered Pub. L. 98–78, title III, § 320(1), Aug. 15, 1983, 97 Stat. 473; Pub. L. 98–525, title XV, § 1537(c)(1)–(6)(A), Oct. 19, 1984, 98 Stat. 2635, 2636.)
§ 5547. Limitation on premium pay
(a) An employee may be paid premium pay under sections 5542, 5545(a), (b), and (c), 5545a, 5546(a) and (b), and 5550 only to the extent that the payment does not cause the aggregate of basic pay and such premium pay for any pay period for such employee to exceed the greater of—
(1) the maximum rate of basic pay payable for GS–15 (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law); or
(2) the rate payable for level V of the Executive Schedule.
(b)
(1) Subject to regulations prescribed by the Office of Personnel Management, subsection (a) shall not apply to an employee who is paid premium pay by reason of work in connection with an emergency (including a wildfire emergency) that involves a direct threat to life or property, including work performed in the aftermath of such an emergency.
(2) Notwithstanding paragraph (1), no employee referred to in such paragraph may be paid premium pay under the provisions of law cited in subsection (a) if, or to the extent that, the aggregate of the basic pay and premium pay under those provisions for such employee would, in any calendar year, exceed the greater of—
(A) the maximum rate of basic pay payable for GS–15 in effect at the end of such calendar year (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law); or
(B) the rate payable for level V of the Executive Schedule in effect at the end of such calendar year.
(3) Subject to regulations prescribed by the Office of Personnel Management, the head of an agency may determine that subsection (a) shall not apply to an employee who is paid premium pay to perform work that is critical to the mission of the agency. Such employees may be paid premium pay under the provisions of law cited in subsection (a) if, or to the extent that, the aggregate of the basic pay and premium pay under those provisions for such employee would not, in any calendar year, exceed the greater of—
(A) the maximum rate of basic pay payable for GS–15 in effect at the end of such calendar year (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law); or
(B) the rate payable for level V of the Executive Schedule in effect at the end of such calendar year.
(c) The Office of Personnel Management shall prescribe regulations governing the methods of applying subsection (b)(2) and (b)(3) to employees who receive premium pay under section 5545(c) or 5545a, or to firefighters covered by section 5545b who receive overtime pay for hours in their regular tour of duty, and the method of payment to such employees. Such regulations may limit the payment of such premium pay on a biweekly basis.
(d) This section shall not apply to any employee of the Federal Aviation Administration or the Department of Defense who is paid premium pay under section 5546a.
(e) Any supplemental pay resulting from receipt of the level 1 border patrol rate of pay or the level 2 border patrol rate of pay under section 5550 shall be considered premium pay in applying this section.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 488; Pub. L. 90–83, § 1(31), Sept. 11, 1967, 81 Stat. 201; Pub. L. 97–276, § 151(e), Oct. 2, 1982, 96 Stat. 1201; Pub. L. 98–525, title XV, § 1537(d), Oct. 19, 1984, 98 Stat. 2636; Pub. L. 100–523, § 2, Oct. 24, 1988, 102 Stat. 2605; Pub. L. 101–509, title V, § 529 [title II, § 204, title IV, § 410(b)], Nov. 5, 1990, 104 Stat. 1427, 1456, 1469; Pub. L. 102–378, § 2(43), Oct. 2, 1992, 106 Stat. 1352; Pub. L. 103–329, title VI, § 633(b)(2), Sept. 30, 1994, 108 Stat. 2427; Pub. L. 107–107, div. A, title XI, § 1114(a), Dec. 28, 2001, 115 Stat. 1239; Pub. L. 113–277, § 2(g)(1), Dec. 18, 2014, 128 Stat. 3005.)
§ 5548. Regulations
(a) The Office of Personnel Management may prescribe regulations, subject to the approval of the President, necessary for the administration of this subchapter, except section 5545(d), insofar as this subchapter affects employees in or under an Executive agency.
(b) The Office shall prescribe regulations necessary for the administration of section 5545(d).
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 488; Pub. L. 90–83, § 1(32), Sept. 11, 1967, 81 Stat. 201; Pub. L. 92–392, § 12, Aug. 19, 1972, 86 Stat. 575; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 102–378, § 2(44)(C), Oct. 2, 1992, 106 Stat. 1352.)
§ 5549. Effect on other statutes
This subchapter does not prevent payment for overtime services or for Sunday or holiday work under any of the following statutes—
(1) section 10703 of the Farm Security and Rural Investment Act of 2002;
(2) sections 1353a and 1353b of title 8;
(3) sections 261,1
1 See References in Text note below.
267, 1450, 1451, 1451a,1 and 1452 of title 19;(4) sections 2111 and 2112 of title 46; and
(5)section 154(f)(3) of title 47.
However, an employee may not receive premium pay under this subchapter for the same services for which he is paid under one of these statutes.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 488; Pub. L. 98–89, § 3(a), Aug. 26, 1983, 97 Stat. 599; Pub. L. 107–171, title X, § 10703(c)(4), May 13, 2002, 116 Stat. 518.)
§ 5550. Border patrol rate of pay
(a)Definitions.—In this section—
(1) the term “basic border patrol rate of pay” means the hourly rate of basic pay of the applicable border patrol, as determined without regard to this section;
(2) the term “border patrol agent” means an individual who is appointed to a position assigned to the Border Patrol Enforcement classification series 1896 or any successor series, consistent with classification standards established by the Office of Personnel Management;
(3) the term “level 1 border patrol rate of pay” means the hourly rate of pay equal to 1.25 times the otherwise applicable hourly rate of basic pay of the applicable border patrol agent;
(4) the term “level 2 border patrol rate of pay” means the hourly rate of pay equal to 1.125 times the otherwise applicable hourly rate of basic pay of the applicable border patrol agent; and
(5) the term “work period” means a 14-day biweekly pay period.
(b)Receipt of Border Patrol Rate of Pay.—
(1)Voluntary election.—
(A)In general.—Not later than 30 days before the first day of each year beginning after the date of enactment of this section, a border patrol agent shall make an election whether the border patrol agent shall, for that year, be assigned to—
(i) the level 1 border patrol rate of pay;
(ii) the level 2 border patrol rate of pay; or
(iii) the basic border patrol rate of pay, with additional overtime assigned as needed by U.S. Customs and Border Protection.
(B)Regulations.—The Director of the Office of Personnel Management shall promulgate regulations establishing procedures for elections under subparagraph (A).
(C)Information regarding election.—Not later than 60 days before the first day of each year beginning after the date of enactment of this section, U.S. Customs and Border Protection shall provide each border patrol agent with information regarding each type of election available under subparagraph (A) and how to make such an election.
(D)Assignment in lieu of election.—Notwithstanding subparagraph (A)—
(i) a border patrol agent who fails to make a timely election under subparagraph (A) shall be assigned to the level 1 border patrol rate of pay;
(ii) a border patrol agent who is assigned a canine shall be assigned to the level 1 border patrol rate of pay;
(iii) if at any time U.S. Customs and Border Protection concludes that a border patrol agent is unable to perform overtime on a daily basis in accordance with this section, U.S. Customs and Border Protection shall assign the border patrol agent to the basic border patrol rate of pay until such time as U.S. Customs and Border Protection determines that the border patrol agent is able to perform scheduled overtime on a daily basis;
(iv) unless the analysis conducted under section 2(e) of the Border Patrol Agent Pay Reform Act of 2014 indicates that, in order to more adequately fulfill the operational requirements of U.S. Customs and Border Protection, such border patrol agents should be allowed to elect or be assigned to the level 1 border patrol rate of pay or the level 2 border patrol rate of pay, a border patrol agent shall be assigned to the basic border patrol rate of pay if the agent works—(I) at U.S. Customs and Border Protection headquarters;(II) as a training instructor at a U.S. Customs and Border Protection training facility;(III) in an administrative position; or(IV) as a fitness instructor; and
(v) a border patrol agent may be assigned to the level 1 border patrol rate of pay or the level 2 border patrol rate of pay in accordance with subparagraph (E).
(E)Flexibility.—
(i)In general.—Except as provided in clauses (ii) and (iii), and notwithstanding any other provision of law, U.S. Customs and Border Protection shall take such action as is necessary, including the unilateral assignment of border patrol agents to the level 1 border patrol rate of pay or the level 2 border patrol rate of pay, to ensure that not more than 10 percent of the border patrol agents stationed at a location are assigned to the level 2 border patrol rate of pay or the basic border patrol rate of pay.
(ii)Waiver.—U.S. Customs and Border Protection may waive the limitation under clause (i) on the percent of border patrol agents stationed at a location who are assigned to the level 2 border patrol rate of pay or the basic border patrol rate of pay if, based on the analysis conducted under section 2(e) of the Border Patrol Agent Pay Reform Act of 2014, U.S. Customs and Border Protection determines it may do so and adequately fulfill its operational requirements.
(iii)Certain locations.—Clause (i) shall not apply to border patrol agents working at the headquarters of U.S. Customs and Border Protection or a training location of U.S. Customs and Border Protection.
(F)Canine care.—For a border patrol agent assigned to provide care for a canine and assigned to the level 1 border patrol rate of pay in accordance with subparagraph (D)(ii)—
(i) that rate of pay covers all such care;
(ii)
(iii) no other pay shall be paid to the border patrol agent for such care.
(G)Pay assignment continuity.—
(i)In general.—Not later than 1 year after the date of enactment of the Border Patrol Agent Pay Reform Act of 2014, and in consultation with the Office of Personnel Management, U.S. Customs and Border Protection shall develop and implement a plan to ensure, to the greatest extent practicable, that the assignment of a border patrol agent under this section during the 3 years of service before the border patrol agent becomes eligible for immediate retirement are consistent with the average border patrol rate of pay level to which the border patrol agent has been assigned during the course of the career of the border patrol agent.
(ii)Implementation.—Notwithstanding any other provision of law, U.S. Customs and Border Protection may take such action as is necessary, including the unilateral assignment of border patrol agents to the level 1 border patrol rate of pay, the level 2 border patrol rate of pay, or the basic border patrol rate of pay, to implement the plan developed under this subparagraph.
(iii)Reporting.—U.S. Customs and Border Protection shall submit the plan developed under clause (i) to the appropriate committees of Congress.
(iv)GAO review.—Not later than 6 months after U.S. Customs and Border Protection issues the plan required under clause (i), the Comptroller General of the United States shall submit to the appropriate committees of Congress a report on the effectiveness of the plan in ensuring that border patrol agents are not able to artificially enhance their retirement annuities.
(v)Definition.—In this subparagraph, the term “appropriate committees of Congress” means—(I) the Committee on Homeland Security and Governmental Affairs and the Committee on Appropriations of the Senate; and(II) the Committee on Homeland Security, the Committee on Oversight and Government Reform, and the Committee on Appropriations of the House of Representatives.
(vi)Rule of construction.—Nothing in this subparagraph shall be construed to limit the ability of U.S. Customs and Border Protection to assign border patrol agents to border patrol rates of pay as necessary to meet operational requirements.
(2)Level 1 border patrol rate of pay.—For a border patrol agent who is assigned to the level 1 border patrol rate of pay—
(A) the border patrol agent shall have a regular tour of duty consisting of 5 workdays per week with—
(i) 8 hours of regular time per workday, which may be interrupted by an unpaid off-duty meal break; and
(ii) 2 additional hours of scheduled overtime during each day the agent performs work under clause (i);
(B) for paid hours of regular time described in subparagraph (A)(i), the border patrol agent shall receive pay at the level 1 border patrol rate of pay;
(C) compensation for the hours of regularly scheduled overtime work described in subparagraph (A)(ii) is provided indirectly through the 25 percent supplement within the level 1 border patrol rate of pay, and the border patrol agent may not receive for such hours—
(i) any compensation in addition to the compensation under subparagraph (B) under this section or any other provision of law; or
(ii) any compensatory time off;
(D) the border patrol agent shall receive compensatory time off or pay at the overtime hourly rate of pay for hours of work in excess of 100 hours during a work period, as determined in accordance with section 5542(g);
(E) the border patrol agent shall be charged corresponding amounts of paid leave, compensatory time off, or other paid time off for each hour (or part thereof) the agent is absent from work during regular time (except that full days off for military leave shall be charged when required);
(F) if the border patrol agent is absent during scheduled overtime described in subparagraph (A)(ii)—
(i) the border patrol agent shall accrue an obligation to perform other overtime work for each hour (or part thereof) the border patrol agent is absent; and
(ii) any overtime work applied toward the obligation under clause (i) shall not be credited as overtime work under any other provision of law; and
(G) for the purposes of advanced training, the border patrol agent—
(i) shall be paid at the level 1 border patrol rate of pay for the first 60 days of advanced training in a calendar year; and
(ii) for any advanced training in addition to the advanced training described in clause (i), shall be paid at the basic border patrol rate of pay.
(3)Level 2 border patrol rate of pay.—For a border patrol agent who is assigned to the level 2 border patrol rate of pay—
(A) the border patrol agent shall have a regular tour of duty consisting of 5 workdays per week with—
(i) 8 hours of regular time per workday, which may be interrupted by an unpaid off-duty meal break; and
(ii) 1 additional hour of scheduled overtime during each day the agent performs work under clause (i);
(B) for paid hours of regular time described in subparagraph (A)(i), the border patrol agent shall receive pay at the level 2 border patrol rate of pay;
(C) compensation for the hours of regularly scheduled overtime work described in subparagraph (A)(ii) is provided indirectly through the 12.5 percent supplement within the level 2 border patrol rate of pay, and the border patrol agent may not receive for such hours—
(i) any compensation in addition to the compensation under subparagraph (B) under this section or any other provision of law; or
(ii) any compensatory time off;
(D) the border patrol agent shall receive compensatory time off or pay at the overtime hourly rate of pay for hours of work in excess of 90 hours during a work period, as determined in accordance with section 5542(g);
(E) the border patrol agent shall be charged corresponding amounts of paid leave, compensatory time off, or other paid time off for each hour (or part thereof) the agent is excused from work during regular time (except that full days off for military leave shall be charged when required);
(F) if the border patrol agent is absent during scheduled overtime described in subparagraph (A)(ii)—
(i) the border patrol agent shall accrue an obligation to perform other overtime work for each hour (or part thereof) the border patrol agent is absent; and
(ii) any overtime work applied toward the obligation under clause (i) shall not be credited as overtime work under any other provision of law; and
(G) for the purposes of advanced training, the border patrol agent—
(i) shall be paid at the level 2 border patrol rate of pay for the first 60 days of advanced training in a calendar year; and
(ii) for any advanced training in addition to the advanced training described in clause (i), shall be paid at the basic border patrol rate of pay.
(4)Basic border patrol rate of pay.—For a border patrol agent who is assigned to the basic border patrol rate of pay—
(A) the border patrol agent shall have a regular tour of duty consisting of 5 workdays per week with 8 hours of regular time per workday; and
(B) the border patrol agent shall receive compensatory time off or pay at the overtime hourly rate of pay for hours of work in excess of 80 hours during a work period, as determined in accordance with section 5542(g).
(c)Eligibility for Other Premium Pay.—A border patrol agent—
(1) shall receive premium pay for nightwork in accordance with subsections (a) and (b) of section 5545 and Sunday and holiday pay in accordance with section 5546, without regard to the rate of pay to which the border patrol agent is assigned under this section, except that—
(A) no premium pay for night, Sunday, or holiday work shall be provided for hours of regularly scheduled overtime work described in paragraph (2)(A)(ii) or (3)(A)(ii) of subsection (b), consistent with the requirements of paragraph (2)(C) or (3)(C) of subsection (b); and
(B) section 5546(d) shall not apply and instead eligibility for pay for, and the rate of pay for, any overtime work on a Sunday or a designated holiday shall be determined in accordance with this section and section 5542(g);
(2) except as provided in paragraph (3) or section 5542(g), shall not be eligible for any other form of premium pay under this title; and
(3) shall be eligible for hazardous duty pay in accordance with section 5545(d).
(d)Treatment as Basic Pay.—Any pay in addition to the basic border patrol rate of pay for a border patrol agent resulting from application of the level 1 border patrol rate of pay or the level 2 border patrol rate of pay—
(1) subject to paragraph (2), shall be treated as part of basic pay solely for—
(A) purposes of sections 5595(c), 8114(e), 8331(3)(I), and 8704(c);
(B) any other purpose that the Director of the Office of Personnel Management may by regulation prescribe; and
(C) any other purpose expressly provided for by law; and
(2) shall not be treated as part of basic pay for the purposes of calculating overtime pay, night pay, Sunday pay, or holiday pay under section 5542, 5545, or 5546.
(e)Travel Time.—Travel time to and from home and duty station by a border patrol agent shall not be considered hours of work under any provision of law.
(f)Leave Without Pay and Substitution of Hours.—
(1)Regular time.—
(A)In general.—For a period of leave without pay during the regular time of a border patrol agent (as described in paragraph (2)(A)(i), (3)(A)(i), or (4)(A) of subsection (b)) within a work period, an equal period of work outside the regular time of the border patrol agent, but in the same work period—
(i) shall be substituted and paid for at the rate applicable for the regular time; and
(ii) shall not be credited as overtime hours for any purpose.
(B)Priority for same day work.—In substituting hours of work under subparagraph (A), work performed on the same day as the period of leave without pay shall be substituted first.
(C)Priority for regular time substitution.—Hours of work shall be substituted for regular time work under this paragraph before being substituted for scheduled overtime under paragraphs (2), (3), and (4).
(2)Overtime work.—
(A)In general.—For a period of absence during scheduled overtime (as described in paragraph (2)(F) or (3)(F) of subsection (b)) within a work period, an equal period of additional work in the same work period—
(i) shall be substituted and credited as scheduled overtime; and
(ii) shall not be credited as overtime hours under any other provision of law.
(B)Priority for same day work.—In substituting hours of work under subparagraph (A), work performed on the same day as the period of absence shall be substituted first.
(3)Application of compensatory time.—If a border patrol agent does not have sufficient additional work in a work period to substitute for all periods of absence during scheduled overtime (as described in paragraph (2)(F) or (3)(F) of subsection (b)) within that work period, any accrued compensatory time off under section 5542(g) shall be applied to satisfy the hours obligation.
(4)Insufficient hours.—If a border patrol agent has a remaining hours obligation of scheduled overtime after applying paragraphs (2) and (3), any additional work in subsequent work periods that would otherwise be credited under section 5542(g) shall be applied towards the hours obligation until that obligation is satisfied.
(g)Authority To Require Overtime Work.—Nothing in this section shall be construed to limit the authority of U.S. Customs and Border Protection to require a border patrol agent to perform hours of overtime work in accordance with the needs of U.S. Customs and Border Protection, including if needed in the event of a local or national emergency.
(h)Special Overtime Pay for GS–12 Border Patrol Agents.—
(1)In general.—Notwithstanding paragraphs (1)(F), (2)(C), and (3)(C) of subsection (b), a border patrol agent encumbering a position at grade GS–12 shall receive a special overtime payment under this subsection for hours of regularly scheduled work described in paragraph (2)(A)(ii) or (3)(A)(ii) of subsection (b), as applicable, that are credited to the agent through actual performance of work, crediting under rules for canine agents under subsection (b)(1)(F), or substitution of overtime hours in the same work period under subsection (f)(2)(A), except that no such payment may be made for periods of absence resulting in an hours obligation under paragraph (3) or (4) of subsection (f).
(2)Computation.—The special overtime payment authorized under paragraph (1) shall be computed by multiplying the credited hours by 50 percent of the border patrol agent’s hourly rate of basic pay, rounded to the nearest cent.
(3)Limitations.—The special overtime payment authorized under paragraph (1)—
(A) is not considered basic pay for retirement under section 8331(3) or 8401(4) or for any other purpose;
(B) is not payable during periods of paid leave or other paid time off; and
(C) is not considered in computing an agent’s lump-sum annual leave payment under sections 5551 and 5552.
(Pub. L. 113–277, § 2(b), Dec. 18, 2014, 128 Stat. 2995; Pub. L. 118–31, div. E, title LII, § 5201, Dec. 22, 2023, 137 Stat. 939.)
§ 5550a. Compensatory time off for religious observances
(a) Not later than 30 days after the date of the enactment of this section, the Office of Personnel Management shall prescribe regulations providing for work schedules under which an employee whose personal religious beliefs require the abstention from work during certain periods of time, may elect to engage in overtime work for time lost for meeting those religious requirements. Any employee who so elects such overtime work shall be granted equal compensatory time off from his scheduled tour of duty (in lieu of overtime pay) for such religious reasons, notwithstanding any other provision of law.
(b) In the case of any agency described in subparagraphs (C) through (G) of section 5541(1) of this title, the head of such agency (in lieu of the Office) shall prescribe the regulations referred to in subsection (a) of this section.
(c) Regulations under this section may provide for such exceptions as may be necessary to efficiently carry out the mission of the agency or agencies involved.
(Added Pub. L. 95–390, title IV, § 401(a), Sept. 29, 1978, 92 Stat. 762; amended Pub. L. 96–54, § 2(a)(14), (15), Aug. 14, 1979, 93 Stat. 382.)
§ 5550b. Compensatory time off for travel
(a) Notwithstanding any provision of section 5542(b)(2) or 5544(a), each hour spent by an employee in travel status away from the official duty station of the employee, that is not otherwise compensable, shall be treated as an hour of work or employment for purposes of calculating compensatory time off.
(b) An employee who has any hours treated as hours of work or employment for purposes of calculating compensatory time under subsection (a), shall not be entitled to payment for any such hours that are unused as compensatory time.
(Added Pub. L. 108–411, title II, § 203(a), Oct. 30, 2004, 118 Stat. 2313; amended Pub. L. 110–181, div. A, title XI, § 1111(a), Jan. 28, 2008, 122 Stat. 360.)