Overtime and Comp Time for FS Specialists and FS Untenured Generalists Serving Overseas | AFSA Guidance – April 2019 (reflecting new 2019 pay scale)
With some exceptions, FS Specialists and FS Untenured Generalists serving overseas are entitled to premium compensation (overtime pay, compensatory time off, holiday pay, Sunday premium pay, night differential, etc.) under Title 5 of the U.S. Code if they work more than eight hours per day or 40 hours per week. The following provides information on entitlements, exceptions, and procedures. This document does not cover DS Agents receiving LEAP, for whom different rules apply.
The Fair Labor Standards Act (FLSA) does not apply to federal employees working overseas.
Because entitlement to premium compensation may depend on a variety of factors, we are only able to offer general guidance. In addition, this document only highlights the basic principles of premium compensation. It does not cover all aspects of the overtime laws. Thus, if you have a particular issue that you have been unable to resolve at post, we suggest you contact AFSA with the specifics, or have post management speak with HR/RMA.
Note: Generalists who have been recommended for tenure remain eligible for OT/Comp Time until the Senate confirms and the President attests.
2. WHEN AM I ENTITLED TO PREMIUM COMPENSATION OVERSEAS?
Under Title 5 you are entitled to premium compensation (overtime pay or compensatory time off) only when the overtime is ordered or approved in writing by an authorizing official. Form DS 3060 - “Authorization of Premium Compensation” should be used to document approved overtime.
- If the overtime has been ordered or approved, premium compensation must be granted for work performed by an eligible employee in excess of eight hours in a day or 40 hours in an administrative workweek.
If possible, get your overtime approved in advance. This is sometimes not feasible, and it is not required by the Title 5 regulations, but the Department’s regulations do require this.
3. TYPES OF OVERTIME WORK
Under Title 5, a distinction is made between overtime work that is “regularly scheduled” and “irregular or occasional” overtime.
- “REGULARLY SCHEDULED” overtime work means overtime work that is scheduled in advance of the administrative workweek (i.e., before 12:01 a.m. Sunday). For example, if a supervisor schedules a specialist or untenured officer in advance of the administrative workweek to work five hours of overtime to cover a visit by the Secretary of State, the overtime is considered “regularly scheduled” and you must receive overtime pay. As a specialist or untenured officer, if a supervisor schedules you, in advance of the administrative workweek, for work ten hours a day in order to catch up with a steady backlog of work; that, too, would be considered “regularly scheduled.”
- “IRREGULAR OR OCCASIONAL” overtime work means overtime work that is NOT scheduled in advance of the administrative workweek. For example, if a specialist or untenured officer is scheduled during a workweek (e.g. Sunday, onward) to stay after hours one night to finish a cable, the overtime would be considered “irregular or occasional” and you would have a choice as to whether you want overtime pay or compensatory time off, as long as your basic rate of pay is at or below the maximum rate of a GS-10, Step 10 (see section on Overtime Pay or Comp time below). If your hourly rate of basic pay is over a GS-10, Step 10, then compensatory time off would be mandatory.
- Omitting regular overtime from the scheduled tour of duty does not automatically make such overtime occasional or irregular. If an authorizing official had knowledge of the specific days and hours of the work requirement in advance of the administrative workweek and had the opportunity to determine which employee had to be scheduled or rescheduled to meet the specific days and hours of that work requirement, the overtime may be converted to “regularly scheduled” work. For example, if you have been required to work four hours of overtime every Friday for the past two months to cover for a foreseeable recurring event, you have a good argument for having the overtime converted to “regularly scheduled overtime”.
4. BI-WEEKLY CAP
BI-WEEKLY PAY CAP: Under Title 5, an eligible employee may receive premium compensation only if the premium pay does not cause your total pay (BASIC rate of pay plus premium pay) for any biweekly pay period to exceed the maximum payable bi-weekly basic rate of pay for GS-15/10 (see below for calculations) or an EX-V (see below), whichever is greater. For pay cap purposes, compensatory time off is assigned the same monetary value as overtime pay.
The BIWEEKLY PAY CAP for 2019
There is no GS pay scale overseas, so a notional overseas rate that applies the 19.54% OCP comparability must be calculated. To find what a GS-15/10 would be paid overseas, take the base salary and multiply it by the FS overseas comparability pay percentage, see the example below:
- GS-15, Step 10: $138,572 + 19.54% = $165,649 ÷ 2087 = $79.37 per hour x 80 hours = $6349.96
- EX-V: 156,000 ÷ 2087 = 74.75 per hour x 80 hours = $5,979.87
Thus, the overseas notional pay for a GS15/10 is the greater, so the Bi-weekly Premium Pay Cap overseas in 2019 is $6,349.96.
In DC the biweekly pay of a GS-15/10 is also the greater, so the DC Bi-weekly Cap in 2019 is $6,382.37.
5. TITLE 5 HOURLY RATE
Your overtime rate is the greater of either one and a half times the hourly rate of a GS-10/1, or your own hourly rate. To find your hourly rate, divide your annual rate by 2087.
a. This means that if your hourly rate is less than $30.77 in DC, or $28.87 overseas, your overtime pay will be one and a half times your basic hourly rate.
b. In DC: If your hourly rate is more than $30.77 and less than $45.53, your overtime hourly rate will be $45.53 in DC. If your hourly rate is more than $45.53 in DC, your overtime hourly rate will be the same as your basic hourly rate.
c. Overseas: If your hourly rate is more than $28.87 and less than $42.09, your overtime hourly rate will be $42.09 overseas. If your hourly rate is more than $42.09 overseas, your overtime hourly rate will be the same as your basic hourly rate.
6. OVERTIME PAY OR COMP TIME?
The distinction between "regularly scheduled" overtime work and "occasional or irregular" overtime is vitally important, since it affects the type of compensation you can receive:
- For specialists and untenured officers, if the overtime is REGULARLY SCHEDULED, you must receive overtime pay (subject to the rates and pay caps applicable under paragraph 4 above).
- For specialists and untenured officers, if the overtime work is IRREGULAR OR OCCASIONAL, and your basic rate of pay is at or below the maximum rate for GS-10/10, you may choose either overtime pay or regular compensatory time off. (GS10/10 BASIC rate in 2019 - $63,661; DC rate - $82,326; notional overseas rate $76,100.)
- For specialists and untenured officers, if the overtime is IRREGULAR OR OCCASIONAL and your basic rate of pay is greater than the maximum for a GS-10/10, then you are only entitled to receive compensatory time off (assigned the same monetary value as overtime pay and subject to the EX-V or GS-15/10 (whichever is higher) biweekly pay cap).
7. REPRESENTATIONAL EVENTS
See State cable 6374 of January 2011 but note that the HR/RMA contact is now Jacqueline Ridley
8. LIQUIDATING REGULAR COMPENSATORY TIME OFF
Compensatory time off must be used within 26 pay periods of the pay period in which it was earned or it is forfeited. If you are a specialist or an untenured generalist who has earned regular comp time under Title 5, but you have been denied use of the leave because of the demands of the post, you may request to have the comp time converted to money if you follow the correct procedure (even if your basic rate of pay is greater than that of a GS-10/10).
- The award of comp time must have been approved by your supervisor and recorded on form DS 3060, “Authorization of Premium Compensation”.
- You must request to take the compensatory time off by submitting Form SF-71, “Application for Leave”.
If you have earned compensatory time off, you must fill out the Application for Leave form and request to use the comp time within the 26 pay periods. If your supervisor denies the request and if there is no opportunity to reschedule the leave within the 26 pay periods, make sure that a copy of the SF-71 showing the disapproval, along with your written request for liquidation, is provided to the timekeeper to support the payment of the overtime for those denied compensatory time hours.
9. DUTY OFFICERS AND CALL-INS
If an eligible employee who is on call actually performs work, via telephone or by reporting to the office, then the employee is entitled to compensation. For example, if (as an eligible employee) you are serving as duty officer and must respond to a U.S. citizen who has lost his/her passport or has some other emergency situation, the time you spend on the telephone dealing with the situation is time spent working, and you are entitled to compensation for that time. You would track such time in quarter-hour increments and report that time as overtime. If you must actually report to the office after regular hours or on Saturday or Sunday, you are entitled to “call-back” overtime, which means you receive a minimum of two hours of overtime, even if you spend less than two hours working. If you can handle the situation via telephone from home, you are not entitled to the two-hour minimum but only compensation for actual time spent working on the telephone.
NOTE: An employee will not be compensated for the time in on-call status when no work is performed.
10. IPC HOURS AND CALL–INS
There are always many questions about IPC operating hours and call-in time. Once again, this brief summary cannot cover all eventualities, but essentially the following guidelines apply:
- IPC operating hours can be decided at post management discretion, but any hours requiring an employee to work over and above eight hours per day or 40 hours per week will attract premium compensation subject to the conditions described above, unless a "compressed work schedule has been instituted" (see below).
- The "regularly scheduled," and "irregular or occasional" rules apply as described above.
- If the regular schedule is an eight-hour day but an IPC employee regularly works nine hours, the extra hour would be "regularly scheduled" overtime and must be compensated with overtime pay. (Again, unless a compressed work schedule has been instituted [see below]).
- Some posts have instituted a "compressed work schedule" for IPC employees. This is defined as a work schedule that allows a full-time employee to complete a basic 80-hour biweekly work requirement in fewer than 10 eight-hour days.
- If your IPC permits employees a compressed work schedule, hours in excess of the established compressed schedule are considered overtime hours. So, if your regular work schedule includes 9 and 3/4 hours per day, only hours in excess of 9 and 3/4 hours in a day or a total of 80 hours in a pay period would be considered overtime hours.
- Staying late at the front-office's behest would normally be "irregular or occasional;" though, as described above, if it happens on a regular basis, the overtime work is "regularly scheduled."
- Call-ins, however, are by definition, "irregular or occasional," and may be compensated either with overtime pay or compensatory time, subject to the rules and pay caps described above.
- Under Title 5, unscheduled overtime work performed by an employee on a day when work was not scheduled, or for which he/she is required to return to his/her place of employment, is deemed at least two hours in duration. This means that any call-in is clocked as two hours, or actual time if the actual time is greater. The clock starts and stops upon entering and leaving the place of work, not when you leave from and return home.
- See the rules above on "Liquidating Regular Compensatory Time Off"
11. QUESTIONS OR CONCERNS?
If you have specific concerns or questions regarding overtime pay or comp time which you cannot work out at post, please phone AFSA at (202) 647-8160; fax (202) 647-0265 or e-mail James Yorke on DOS OpenNet or via the Internet at email@example.com. Formal questions should also be directed to your HRO or Executive Office and you may also submit a question to the HR Service Center at HRSC@state.gov.
a. 3 FAM 3130
b. 5 CFR Part 550, Subpart A “Premium Pay” – Section 550.101 – 550.187.
c. 5 USC Chapter 55, Subchapter 5, (§§ 5541–5550b)