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Resources for Federal Employees

The attorneys at McGillivary Steele Elkin LLP recognize that many federal workers work in their jobs for their entire career, so a wrongful termination or a miscalculated cut in pay can be devastating. With decades of experience representing federal employees, we can assure you that if something can be done to set things right, we are the ones who can make it happen.

Federal employees have strong rights when it comes to their pay and benefits because, unlike private sector employees, most federal employees’ pay and benefits are determined by statute. This means that the pay and benefits entitled to a federal worker are not up for debate and are enforceable by law. Unfortunately, federal agencies often misinterpret or misapply the statutes defining these benefits. As a result, federal employees must pursue court actions or file grievances to obtain the pay and benefits to which they are entitled.

McGillivary Steele Elkin LLP has a thorough and indisputable track record successfully representing many federal sector unions as well as tens of thousands of individual federal employees across the nation in lawsuits to recover pay and benefits. We have resolved federal sector disputes through effective litigation, persistent mediation and expert-level arbitration to obtain the pay and benefits that these employees are entitled to receive.

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Our lawyers have substantial experience representing federal workers across a wide variety of industries and professions including air traffic controllers, border patrol agents, Navy shipyard technicians, the Army Corps of Engineers employees, Forest Service employees, Library of Congress employees, NASA and NOAA technicians, Immigration Judges, federal fire fighters, federal law enforcement officers, and correctional officers. These cases have involved a variety of claims including but not limited to

  • Misclassifying workers as being exempt from receiving overtime pay
  • Not providing additional pay for work that is considered ‘hazardous’- i.e., hazardous duty pay
  • Not paying workers for pre-shift/post-shift activities and/or work performed during unpaid meal periods that are integral and necessary to the successful completion of their job
  • Not paying workers for time spent communicating necessary information between shift changes and exchanging equipment, both when on-the-clock and off-the-clock
  • Using government grade cut-offs such as GS-11 and GS-12 classes to determine a worker’s overtime pay eligibility

Below we have provided resources for more information about the pay and benefits laws applicable to federal employees. This explanation is intended as an introduction and overview of some of the rights to which federal employees are entitled. It is not intended to replace the detailed, case-specific analysis of a lawyer nor does it constitute legal advice.

If you have a question that is not answered in the resources below, or if you think you may be experiencing workplace pay, benefit or treatment violations, please email us at info@mselaborlaw.com

Fair Labor Standards Act – Overtime

The majority of federal employees are entitled to receive Fair Labor Standards Act (FLSA) overtime compensation. FLSA overtime is overtime paid at one and one-half times an employee’s “regular rate” of pay for hours worked in excess of 40 hours a week or, for some employees, 8 hours a day. In the federal sector, paid leave hours count as hours of work. The definition of what constitutes “the regular rate of pay” is discussed in more detail below, but generally it means your hourly rate of pay plus any premium types of pay or non-discretionary or regular bonuses that the employee has received. There are some differences between how the FLSA is applied in the federal sector and private sector. For the most part, however, the law is the same.

This is one of the least used forms of premium payments agencies make to their employees. We are unsure of the reason why, but speculate that it may be because both agencies and employees remain unsure of the circumstances under which this type of premium pay is required.

Federal employees are entitled to receive additional pay if they are exposed to certain types of hazards or unusual physical hardship. Hazardous duty is defined by the Office of Personnel Management (OPM) as hazards in which an accident could result in serious injury or death.

OPM is authorized by Congress to establish the types of hazards to which an employee’s exposure mandates the payment of hazardous duty pay. These range from exposure to toxic chemicals, virulent biologicals, or incendiary materials to underwater duty or exposure to extreme heat.

OPM has established a list of hazards to which a federal employee’s exposure mandates the payment of hazardous duty pay. This list is called “Appendix A” to OPM’s hazardous duty pay regulations. To view OPM Hazardous Duty Pay, please click here. Agencies may petition OPM to add to the list of hazards that appears on Appendix A.

Exposure to one of these hazards results in the employee being entitled to receive an additional payment between 10% and 25% of his or her basic pay for that day. The amounts are determined by OPM.

Until 1990, exposure to the hazard had to be intermittent or occasional to qualify for hazardous duty pay. Since 1990, that has no longer been true. All that is required is that the employee be exposed to the hazard, regardless of how often this occurs.

It is a defense to payment of hazardous duty pay if the employer has taken the hazard into account in classifying the employee’s position. OPM has defined the phrase “taken into account in classifying the position” as meaning that an employee can use his knowledge, skill, and abilities in that position to reduce the risk of the hazard and the hazard has been considered in classifying the pay for the position. For example, fire fighters would not be entitled to receive hazardous duty pay for fighting a fire.

FLSA overtime compensation is overtime paid to “FLSA non-exempt” employees at the time and one-half overtime rate. Many agencies permit local facilities and offices to treat all employees at the GS-11 and GS-12 pay grades and above as exempt from the FLSA, regardless of the employee’s job duties. This is legally wrong and has huge financial consequences for the wronged employees. Employees treated as exempt from the FLSA do not receive time and one-half overtime pay. Instead, most of these employees are paid lesser overtime under a different statute — Title 5 — at the GS-10, step one rate or their straight time rate, whichever is higher.

There are six primary differences between FLSA overtime and Title 5 overtime:

Employees covered by the FLSA are entitled to be paid for travel on weekends if the travel cuts across the same hours as their administrative work hours, regardless of whether they are performing work while traveling. In contrast, except in very limited circumstances, FLSA-exempt employees receive no pay for weekend travel. Thus, the damages for travel time are quite large if an employee is wrongly classified as “FLSA Exempt.”

There is no maximum earnings limitation under the FLSA. Under Title 5, employees cannot earn more money than the maximum level of GS-15 overtime in a particular pay period. As a result, employees who frequently work overtime can end up working for free. This can never happen under the FLSA.

FLSA-exempt employees receive overtime at the rate of time and one-half of the GS-10, Step One pay rate, or their straight time hourly rate, whichever is higher if their time and one-half rate exceeds the GS-10, Step One rate. FLSA non-exempt employees receive overtime pay at one and one-half times their true hourly rate. Moreover, under the FLSA, the overtime rate includes other types of premiums, such as Sunday or night shift premium pay, that the employee has received that pay period. Under Title 5, the overtime rate does not include these premiums.

Under the FLSA, employees cannot be forced to receive compensatory time off or credit hours in lieu of cash overtime pay. FLSA-exempt employees, however, can be required to accept compensatory time (also called “credit hours”) at the straight time rate (one hour of “comp time” for each overtime hour worked). FLSA non-exempt employees can choose between being paid in cash at the time and one-half rate or receiving comp. time. In cases we have won and settled, we have successfully argued that employees who received credit hours or comp. time in the past should receive damages at least equal to additional half time compensation for each hour of overtime worked for the time period that they were wrongly treated as exempt from the FLSA. In other words, credit hours and comp. time hours count as overtime.

Employees can recover double damages (called liquidated damages), back pay and attorney’s fees and costs in a FLSA case. In a Title 5 pay case, employees can only obtain backpay, interest, and attorneys fees and costs.

The statute of limitations in FLSA cases is two years which is extended to three years in cases where the employer willfully violated the law. The statute of limitations in Title 5 cases is six years.

The Office of Personnel Management’s (OPM) administration of the FLSA is required to be consistent with the rulings, regulations, interpretations, and opinions of the Secretary of Labor that are applicable to other sectors of the economy. OPM has issued regulations set forth at Part 551 of Title 5 of the Code of Federal Regulations. If OPM’s regulations deviate from the Department of Labor’s application of the FLSA, OPM’s interpretation is incorrect and should be overturned.

OPM has a homepage on the internet that addresses the FLSA as well as other pay issues at www.opm.gov/flsa.

Many agencies improperly deny FLSA overtime compensation to federal employees. Employees are misclassified as being “exempt” from the FLSA, and the agency employers improperly save on millions of dollars of overtime compensation that is owed to the employees. McGillivary Steele Elkin LLP has successfully represented tens of thousands of employees and obtained millions of dollars of backpay, liquidated damages, and interest for wronged federal employees.

GRADE CUTOFFS ARE NOT PERMITTED

The most common error agencies use is to automatically consider all employees at a particular pay grade to be exempt from the FLSA. Many agencies and their facilities will automatically exempt all employees at the GS-11, and GS-12 and above from receiving FLSA overtime compensation. In our experience, when looking at the actual job duties of the employees, it is extremely rare for GS-11 and GS-12 employees to be exempt from the FLSA.

A determination as to whether an employee is exempt from the FLSA must be based on the actual job duties of the employee. The Agency bears the burden of proving that an employee meets the test for the claimed exemption. OPM’s regulations are, for the most part, similar to the Department of Labor’s rules. One exception is that OPM does not apply the salary-basis test to determine employees’ entitlement to overtime compensation. The only thing that matters for the determination of whether a federal employee should be exempt from the FLSA is his or her actual job duties. For the most part, OPM appears to intend that the same job duty tests to determine employee’s coverage under the FLSA that are applied in the private sector also apply to federal employees. For a discussion on the private-sector exemptions, see the section on Overtime Rights.

In 1985, OPM attempted to permit federal agencies to use automatic grade cut-offs to determine whether employees are entitled to FLSA overtime compensation. A court struck this down and invalidated OPM’s regulations. Nonetheless, many agencies and their activities appear to continue to use automatic grade level cutoffs so that all employees at or above the GS-11 level are improperly and automatically denied overtime compensation.

OPM’S APPLICATION OF THE EXEMPTIONS TO TEMPORARY ASSIGNMENTS

Employees who receive temporary assignments in which they work at a job that is different than their regular job may have their status under the FLSA changed. As with the application of any exemption to the FLSA’s overtime requirements, an employee’s entitlement to FLSA overtime pay during a temporary assignment is based on the employee’s primary job duties, not the employee’s job title or pay grade.

The period of time that the Department of Labor uses to determine an employee’s primary job duty has historically been a week. OPM, however, has determined that the period of time federal agencies should use to determine an employee’s FLSA status if the employee is working on a temporary detail is thirty (30) days. This works to the advantage of an FLSA-covered employee who is temporarily working in a position that is at a higher grade and is in a position treated by the agency as exempt from the FLSA. It works to the disadvantage of employees in FLSA-exempt positions who are detailed to work lots of overtime performing work that would normally be covered by the FLSA, but whose detail performing this type of work is shorter than thirty days.

FOREIGN WORKPLACE RULE

Work outside the United States and its territories may be excluded from the FLSA overtime rules. OPM has enacted a bright line rule to determine whether the protections of the FLSA apply to work by federal employees that occurs in a foreign country. OPM has determined that an employee who performs any work in the United States during the workweek is entitled to coverage regardless of how much work he or she has performed that week. Thus, if an employee has performed one minute of work in the United States, all other work performed that week must be compensated under the FLSA and the employee is covered by the FLSA for that work week. According to OPM, the FLSA does not apply to employees who have performed all their work hours in a workweek in a foreign country if they are on temporary duty or permanent assignment to that country.

LAW ENFORCEMENT AVAILABILITY PAY

In 1994, Congress enacted a special exemption to the FLSA for federal criminal investigators who receive Law Enforcement Availability Pay (LEAP). To qualify for LEAP pay, an employee must be properly classified as a criminal investigator in the GS-1811, GS-1812 or FP-2501 series. Employees who receive LEAP pay must be available to perform unscheduled overtime work or perform unscheduled overtime work an average of two hours a day.

Employees who receive LEAP pay are entitled to Title 5 overtime compensation in addition to LEAP pay if they work outside their regular workdays or if they work regularly scheduled overtime. The LEAP pay statute, however, does not provide for regularly scheduled overtime unless the investigator works more than 10 hours on one of the investigator’s regularly scheduled workdays or the investigator works on a day outside of the investigator’s basic 40 hour work week.

With one exception – compensatory time – the principles used to compute the rate at which FLSA overtime is paid are the same for federal employees as private-sector employees: Federal employees who are covered by the FLSA are entitled to receive one and one-half times their regular rate of pay. The “regular rate” is different than an employee’s hourly rate in that it includes most types of premium pay. For the majority of federal employees, overtime is calculated for hours worked in excess of 8 hours per day, instead of the typical hours worked in excess of 40 hours per week.

In the federal sector, to compute an employee’s regular rate of pay, the employee’s annual GS salary is first divided by 2087, the number of regular work hours in a year. This figure is then multiplied by 40 to yield a weekly amount. Then, any Title 5 premium pay earned that week, such as Sunday premium pay, night shift differential, and hazardous duty pay, is added to the weekly amount. This figure is then divided by 40 hours to obtain the regular rate of pay. Federal employees are entitled to receive 1.5 times the regular rate of pay for each overtime hour worked that week.

The rules are different for employees who receive administratively uncontrollable overtime. There are also different hourly standards for law enforcement and fire protection employees. For a detailed discussion on the rules and regulations that apply to law enforcement and fire protection employees, please see the “Law Enforcement Employees” and “Fire Fighter/Paramedics” sections of this Web site.

In the federal sector, unlike the private sector, employees may receive compensatory time off under the FLSA as payment for working overtime. However, compensatory time can only be paid in lieu of cash if it is at the request of the employee, and it must be for irregular or occasional overtime work. Comp time for federal employees is awarded at a straight-time rate, one hour of comp time for each hour of overtime worked.

OPM’s regulation, 5 C.F.R. Section 551.531(c), specifically prohibits agencies from requiring that employees be compensated with compensatory time for working overtime. In addition, compensatory time paid under the FLSA does not evaporate or disappear if it is not used within a particular time period. If the compensatory time is not used within the time limits established by an agency, FLSA compensatory time must be cashed out.

Federal employees who are found to have been wrongly denied FLSA overtime compensation are entitled to recover their back pay in an amount equal to the difference between what they were paid for overtime work and what they would have been paid if they had been properly paid FLSA overtime compensation. In addition, employees are entitled to recover liquidated (double) damages or interest. Finally, employees can recover attorneys’ fees and costs associated with pursuing the case.

There is a two-year statute of limitations applicable to FLSA cases, which is extended to three years if the government is found to have willfully violated the FLSA. The statute of limitations begins to run on the day in which the employee would normally have been paid his overtime pay. Significantly, filing a claim with OPM does not toll the statute of limitations. This means that the statute of limitations continues to run while an employee’s claim is pending at OPM. In contrast, filing a grievance or court case does stop the statute of limitations from running.

Employees who are represented by unions whose grievance procedures do not exclude FLSA overtime pay claims have two options for pursuing a claim against their agency-employer to recover FLSA overtime backpay. They can either file a grievance and/or they can pursue the issue in court. Employees who are represented by a union whose grievance procedure includes FLSA claims cannot file claims with the OPM.

Employees who are not represented by a union or employees who are represented by a union whose grievance procedure excludes FLSA claims, have two options as well. They can either pursue a claim in court or with OPM. However, as noted above, filing the claim does not toll the statute of limitations on the claim, and subjects the employee to the whims of OPM’s administrative processing.

Claims for more than $10,000 in damages must be pursued in the U.S. Court of Federal Claims, if they are pursued in court. In other words, local U.S. District courts do not have jurisdiction to hear employee claims seeking damages in excess of $10,000. The United States District Court for the District of Columbia has held that this $10,000 figure includes attorney’s fees.

As discussed above, employees should be aware that if they file a claim with OPM, the statute of limitations will continue to run while their claim is pending with OPM. In other words, filing a claim with OPM does not toll or stop the statute of limitations.

Generally, hours that count as work hours under Title 5 for purposes of computing overtime compensation also count as work hours under the FLSA. The general rules for counting work hours described for the private sector apply to federal employees’ in computing their Title 5 and FLSA overtime compensation. The differences in rules for computing federal employees’ work time compared to other employees are explained below.

One rule unique to the federal sector is the de minimis rule found in 5 C.F.R. Section 551.412(a) (1) which states that an activity is presumptively not compensable if it takes 10 minutes or less to perform. This rule, however, appears to be in conflict with another OPM rule which states that an agency must pay for every minute of regular overtime work. 5 C.F.R. Section 551.501(b). This conflict can be reconciled by recognizing that the de minimis rule only applies to irregular overtime work. For regular, recurring overtime work, the agency should be compelled, consistent with OPM regulations, to pay for every minute of overtime work.

In addition to being required to pay employees for all travel time in which an employee is working under the FLSA, time spent traveling on weekends in which the travel cuts across the employee’s regular work hours count as hours of work regardless of whether the employee is performing productive work while traveling or not. For example, an employee whose work schedule is 7 a.m. to 4 p.m., Monday through Friday, and who travels between the hours of 7 a.m. and 4 p.m. on a weekend is entitled to FLSA overtime compensation.

General Schedule federal employees who are exempt from the FLSA are entitled to Title 5 overtime compensation. Weekend travel under Title 5 overtime, however, does not count as hours of work for purposes of overtime pay unless the employee is actually performing work.

All federal employees are entitled to compensatory time at the rate of hour for hour of travel for time spent traveling. This compensatory time, however, has no cash value if it is unused and this type of used comp time is extinguished at the end of the year.

OPM has determined that paid leave hours (e.g., annual leave, sick leave, comp time, etc.) are counted as hours of work for purposes of computing federal employees’ overtime under both the FLSA and Title 5. Additionally, OPM’s regulations specify that any rest periods 20 minutes or less are compensable work time. Meanwhile, time spent adjusting grievances, receiving medical attention, or performing charity work, at the agency’s direction are compensable time if performed during working hours.

Generally, the rules regarding on-call time and waiting time that apply to federal employees are the same as those that apply to private sector and non-federal public sector employees. To view those rules please see the overtime rights overview section of this website. In some respects, however, OPM’s rules concerning on-call time and waiting time are more specific to circumstances that apply to federal employees.

In our experience, the majority of federal sector work situations in which on-call or waiting time issues arise involve employees who are required to work through a meal period by remaining on-call or compelled to eat at their work site, such as a desk, guard station, etc. In addition, technicians in the Navy are compelled to remain onboard naval vessels at sea for days at a time. The Navy has inconsistently applied its policies on compensating these technicians. Many technicians are paid a minimum of 16 hours per day for time spent at sea.For reasons unknown, other technicians doing the same thing are paid fewer than 16 hours per day.

We have successfully represented technicians, police officers, and other employees in on-call cases in the federal sector recovering backpay and changes in employer practices in these areas.

DEFINITIONS OF ON-CALL AND WAITING TIME UNDER THE FLSA AND TITLE 5 OVERTIME

The law concerning the compensability of Title 5 overtime tracks the FLSA closely with regards to on-call time. Thus, for purposes of the FLSA, OPM defines “work time” under 5 C.F.R. Section 551.401 as:

(a) All time spent by an employee performing an activity for the benefit of an agency and under the control or direction of the agency is “hours of work.” Such time includes:

(1) Time during which an employee is required to be on-duty;

(2) Time during which an employee is suffered or permitted to work; and

(3) Waiting time or idle time which is under the control of an agency and which is for the benefit of an agency.

OPM has set forth a separate regulation for time spent on standby duty or in an on-call status. Under 5 C.F.R. Section 551.431

(a) OPM defines time as being spent on standby duty as:

(1) An employee is on duty, and time spent on standby duty is hours of work if, for work-related reasons, the employee is restricted by official order to a designated post of duty and is assigned to be in a state of readiness to perform work with limitations on the employee’s activities so substantial that the employee cannot use the time effectively for his or her own purposes.

Interestingly, OPM has defined under Section 551.431

(b) when an employee will be considered to be “off-duty” although the employee is “on-call:”

(1) The employee is allowed to leave a telephone number or to carry an electronic device for purpose of being contacted even though the employee is required to remain within a reasonable call-back radius; or

(2) The employee is allowed to make arrangements such that any work that may arise during the on-call period will be performed by another person.

The case law under the FLSA primarily concerns factual situations in which employees are permitted to go home or to leave word where they may be contacted while on-call.Nonetheless, in these cases, some of the factors that the courts assess to determine whether the standby time is compensable are:

  • Whether the time is spent on the employer’s premises
  • Any geographic restrictions on the employees
  • The frequency of the calls received during the standby time
  • How quickly the employees must respond to the calls
  • Whether the employee may use a pager
  • The degree to which the employees’ personal activities are restricted during the on-call shift
  • Any discipline to which the employee is subject if he misses or ignores a call
  • The nature of the employment involved

No one of these factors is dispositive and this list of factors is illustrative, but not exhaustive. As the courts have repeatedly stressed, all of the facts and circumstances must be examined in each case to determine whether on-call time is compensable.

Our firm won a case in the Tenth Circuit on behalf of fire fighters entitled Renfro v. City of Emporia, 948 F.2d 1529 (10th Cir. 1991). In Renfro, the fire fighters received an average of 3-to-5 calls per on-call shift and were required to respond to the fire station within 20 minutes of being called or they would be disciplined. The employees were otherwise free to do as they pleased. The court held that the restrictions placed on the fire fighters’ personal activities were too great and they were awarded FLSA overtime pay plus liquidated (double) damages for their entire 24-hour shifts.

The case law regarding employees who are restricted to their employer’s premises is strong.  In 1994 and 1995 decisions issued by the U.S. Court of Appeals for the Ninth Circuit, the court held that on-call/standby time spent by assistant probation officers and by nurses was compensable under the FLSA. The employees were rarely called out. SEIU, Local 102 v. County of San Diego, 35 F.3d 483 (9th Cir. 1994); SEIU, Local 102 v. County of San Diego, 60 F.3d 1346 (9th Cir.), cert.denied, 3 WH Cases2d 64 (1995). However, during their standby time, they had to remain on the employer’s premises, notify their supervisors of their whereabouts at all times, not drink alcohol and respond immediately if they were called. The employees were permitted to exchange shifts. They also had access to weightlifting facilities, a pool table, a satellite TV, and a staff lounge. Interestingly, the court ruled against the employees who permanently resided at the employer’s work sites and ruled in favor of the employees who resided elsewhere, but who were required to remain at the employer’s premises during the on-call shift.

Lastly, OPM’s regulations expressly provide that sleep time on the agency’s premises is not compensable if the employee’s shift is 24 hours or longer. 5 C.F.R. Section 551.432. Sleep time may be excluded, however, only if the employee receives a total of 5 hours or more of sleep. In addition, only a maximum of 8 hours may be excluded as work hours. The facilities provided for sleeping must also be “adequate facilities” and the sleep period must usually be uninterrupted.

TITLE 5 OVERTIME

As noted above, for the most part, the rules defining work time with regard to on-call or waiting time are the same under Title 5 and FLSA.

THE OVERTIME RATE OF PAY

Nearly all General Schedule employees who are exempt from the FLSA are entitled to receive Title 5 overtime pay. To compute Title 5 overtime pay, an employee’s annual general schedule salary is divided by 2087 — the number of hours the annual salary is intended to compensate employees for in a year. The employee is entitled to receive one and one-half times that rate of pay or for employees who are paid at a rate higher than the rate of a GS-10, step one, exempt employees are paid at that rate or the employee’s straight time rate, whichever rate is higher. In other words, the maximum rate at which Title 5 overtime is paid for most FLSA exempt employees is the GS-10, step one rate or their straight time rate.

ADMINISTRATIVELY UNCONTROLLABLE OVERTIME

Employees who work large amounts of irregular overtime that can not be scheduled in advance are eligible to receive a certain percentage of their salaries as administratively uncontrollable overtime (AUO). The percentages vary between 10% and 25% depending on the number of irregular hours worked. AUO is received each pay period regardless of the number of hours that the employee works in a particular pay period. However, over a three-month period, the employee must work a certain number of hours to qualify for AUO.

Agencies are not obligated to pay employees AUO. They can pay Title 5 overtime pay instead at the employee’s overtime rate of pay or the rate for a GS-10, step one, whichever is lower. However, OPM’s regulations can be construed to mean that the decision to pay AUO must be made on an annual basis, meaning that it cannot be arbitrarily revoked.

STANDBY PAY

However, during their standby time, they had to remain on the employer’s premises, notify their supervisors of their whereabouts at all times, not drink alcohol and respond immediately if they were called. Standby pay, like AUO, is a certain percentage of the employee’s basic pay up to a maximum of 25%. Standby pay is paid in lieu of other forms of premium pay available under Title 5, except for irregular overtime in excess of the employee’s regular tour of duty.

For fire fighters to whom the 1998 federal fire fighter pay law, at 5 U.S.C. Section 5545b, applies, standby pay no longer is paid.

MAXIMUM EARNINGS LIMITATION

Under Title 5, the maximum amount of basic pay and premium pay that an employee can earn in a biweekly pay period is the maximum rate of a GS-15. This includes locality pay.

This maximum earnings limitation does not apply to law enforcement employees. For law enforcement employees, the maximum earnings limitation is the lesser of 15% of the rate of a GS-15, step one including locality pay or the rate payable for Level V of the Executive Schedule. The maximum earning limitation also does not apply to certain employees at the FAA who are paid premium pay; and employees who are performing certain types of emergency work.

Of course, the maximum earnings limitation does not apply to employees who are covered by the FLSA.

SUNDAY PREMIUM PAY

Sunday premium pay is pay that an agency is obligated to pay to employees whose regular hours of work include time on a Sunday. Significantly, if any part of the employee’s 8-hour shift falls on a Sunday, the employee is entitled to additional pay equal to 25% of the employee’s pay for that shift. In 1998, the law was amended to require that the employee work part of the shift to be eligible for Sunday premium pay. Previously, employees who were scheduled to work on a Sunday, but did not do so because they used paid leave were entitled to Sunday premium pay.

If an employee has two shifts that fall on a Sunday – such as an employee who works 11:00 p.m. on Saturday to 7:00 a.m. on Sunday and then from 11:00 p.m. on Sunday to 7:00 a.m. on Monday – the employee is entitled to receive an additional 25% pay for two shifts. In our experience, some employers have erred in applying this rule by only paying the additional 25% Sunday premium pay for one shift.

NIGHT SHIFT DIFFERENTIAL

Night shift differential is paid to employees whose regularly scheduled hours fall within the hours of 6 p.m. and 6 a.m. It equals ten percent of an employee’s basic pay for the shift. It is paid to employees if they work any part of their 8-hour shift between 6 p.m. and 6 a.m. In addition, it is paid if due to absences of leave due to holidays, an employee works only part of his scheduled 8-hour shift. It is not paid to employees if they miss their entire 8-hour shift due to using paid leave.

HOLIDAY PAY

Employees who work on a recognized holiday — i.e., a holiday that is established by statute or Executive Order — are entitled to receive their basic pay plus pay at a rate equal to their basic pay for the first 8 hours worked on the holiday. In other words, employees who work on a recognized holiday are entitled to receive double pay for the first 8 hours they work on the holiday. Thereafter, the same rules for Title 5 overtime pay that apply to overtime work on a regular workday apply to overtime work on a holiday.

An employee who is required to perform any work on a holiday is entitled to pay for at least 2 hours of holiday work.

Holiday pay is in addition to Sunday premium pay and night-shift differential.

In Title 5 premium pay cases, employees are entitled to gain the difference between the amount of Title 5 premium pay they should have received from the amount that they were initially paid In addition, the employees can recover interest on their backpay damages and attorneys’ fees and costs.

The statute of limitations in Title 5 premium pay cases is 6 years. This means that employees who are seeking back pay for premium pay that they were improperly denied can recover backpay going back 6 years from the date that their claim is filed in court.

Employees can pursue Title 5 premium pay claims in court or, if they are represented by a union, through their negotiated grievance procedure. Claims for more than $10,000 in damages must be pursued in the U.S. Court of Federal Claims if they are pursued in court. In other words, local U.S. District courts do not have jurisdiction to hear an employee’s claim seeking damages in excess of $10,000.

IT IS ILLEGAL FOR THE FEDERAL GOVERNMENT TO DISCRIMINATE

AGAINST ITS EMPLOYEES

As a federal employee, you are entitled to work in an environment free from discrimination. The same laws that apply in the private sector apply, for the most part, in the federal sector. Part 1614 of the Federal Sector Equal Employment Opportunity complaint processing regulations sets forth the process federal employees must follow to pursue a discrimination claim against the government.

Federal Laws Prohibiting Discrimination

Title VII of the Civil Rights Act of 1964 (Title VII): prohibits discrimination in employment based on race, color, religion, sex, or national origin.

Section 501 of the Rehabilitation Act of 1973: prohibits discrimination against federal employees and applicants for employment based on disability. Federal agencies are required to make reasonable accommodations to the known physical and mental limitations of qualified employees or applicants with disabilities. Section 501 also requires affirmative action for hiring, placement, and promotion of qualified individuals with disabilities.

The Equal Pay Act: prohibits employers from discriminating on the basis of sex in the payment of wages where substantially equal work is performed under similar working conditions.

The Age Discrimination in Employment Act (ADEA): protects people 40 years of age and older by prohibiting age discrimination in hiring, discharge, pay, promotions, and other terms and conditions of employment.

Prohibition Against Reprisal and Retaliation

A person who files a complaint or charge, or participates in an investigation or charge, pursuant to any of the above statutes is protected from retaliation.

Pursuing A Claim

If you are covered by a collective bargaining agreement, you can pursue a claim of discrimination through the agreement’s grievance procedure as long as such matters are not specifically excluded from the grievance process and as long as you meet the contract’s time requirements for grievance filing. Alternatively, you can pursue a claim through the Equal Employment Opportunity (EEO) process.

In a recent Supreme Court case, the Court held that a clause requiring binding arbitration of Age Discrimination in Employment Act (ADEA) claims by employees pre-empted an employee’s age discrimination lawsuit in federal court. The court did not specifically address whether other discrimination claims under any of the other statutes discussed above could also be subject to mandatory arbitration if bargained for in a contract, though, based on that case, it seems likely that a similar clause would pre-empt taking such discrimination claims to court.

The first step for an employee or applicant who feels he or she has been discriminated against by a federal agency must contact an Equal Employment Opportunity counselor at the agency where the alleged discrimination took place within 45 days of the discriminatory action. Ordinarily, counseling must be completed within 30 days. The aggrieved individual may then file a complaint with that agency.

The agency must acknowledge or reject the complaint and if it does not dismiss it, the agency must, within 180 days, conduct a complete and fair investigation.

If the complaint is one that does not contain issues that are appealable to the Merit Systems Protection Board (MSPB), at the conclusion of the investigation, the complainant may request either a hearing by an Equal Employment Opportunity Commission (EEOC) administrative judge (AJ) or an immediate final decision by the employing agency.

The AJ must process the request for a hearing, issue findings of fact and conclusions of law, and order an appropriate remedy within 180 days.

After the final decision of the agency, the complainant may appeal to the Equal Employment Opportunity Commission within 30 days or may file suit in a U.S. District Court within 90 days. Of course, you should contact an attorney to assist you in the complaint filing process.

Remedies

Successful claimants have a number of remedies available to them. These remedies may include:

  • compensatory damages;
  • back pay (with interest where applicable) and lost benefits;
  • posting a notice to all employees advising them of their rights under the laws EEOC enforces and their right to be free from retaliation;
  • corrective or preventive actions taken to cure or correct the source of the identified discrimination;
  • nondiscriminatory placement in the position the victim would have occupied if the discrimination had not occurred;
  • stopping the specific discriminatory practices involved; and
  • recovery of reasonable attorney’s fees and costs.

Wage Grade Employees

FAIR LABOR STANDARDS ACT

Supervisory wage grade employees are covered under the FLSA unless they meet the test for the executive exemption to the FLSA. To review that test, please see the overtime rights overview section of this website. Otherwise, the rules for computing FLSA overtime are the same for wage grade employees as all other employees. All non-supervisory wage grade employees are considered to be covered by the FLSA. 5 C.F.R. Section 551.204.

SUNDAY PREMIUM PAY

The rules for Sunday Pay Premium are the same for wage grade employees as GS employees.

NIGHT SHIFT DIFFERENTIAL

Night shift differential is paid to employees whose regularly scheduled hours fall within the hours of 3 p.m. and 8 a.m. If a majority of an employee’s regularly scheduled non-overtime hours occur between 3 p.m. and midnight, an employee is entitled to receive an additional seven and a half percent (7.5%) of his basic pay for the shift. If a majority of the employee’s regularly scheduled, non-overtime hours occur between 11 p.m. and 8 a.m., an employee is entitled to receive ten percent (10%) of his basic pay.

An employee regularly assigned to a night shift is entitled to receive the night shift differential during paid leave. Night shift differential is part of an employee’s basic pay and is used to compute premium pay (i.e. pay for overtime, holiday or Sunday work).

HOLIDAY PAY

The rules for GS employees holiday pay are the same for wage grade employees.

ENVIRONMENTAL DIFFERENTIAL PAY

An employee is entitled to environmental differential pay when exposed to a working condition or hazard that falls within one of the categories established by the Office of Personnel Management (OPM). The list of hazards approved by the Office of Personnel Management is listed in “Appendix A” to OPM’s environmental differential pay regulations. To view a list of these hazards click here.

Exposure to one of the hazards listed in “Appendix A” entitles an employee to receive an amount equal to the percentage rate authorized by OPM for the hazard, multiplied by the rate for the second step.

Legal Representation for All Workers

When McGillivary Steele Elkin LLP decides to take your case, it is because we believe there is an unacceptable workplace violation that has negatively impacted you or resulted in your employer paying less than what the law requires and which we have a reasonable chance of remedying. We recognize that meritorious claims should not go unremedied because of the level of a person’s resources.

To ensure accessible and available legal representation for all our clients, MSE handles cases through different forms of fee arrangements, including contingency fees, hourly fees and fixed fees.