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Office of Personnel Management

OPM is responsible for several broad categories such as employee recruitment and retention and oversees the overall federal workforce including managing, job announcement postings at USAJOBS.gov and setting governmentwide policies on hiring procedures.
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FedCivServ  
#1 Posted : Wednesday, December 07, 2016 9:55:28 AM(UTC)

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I have recently been pulling my hair out trying to decipher OPM's guidance on exempt (non-FLSA) employees getting comp or overtime. I understand that it is probably purposely nebulous to apply across many agencies, but my frustration is that there is no STANDARD. In my org, supervisors (exempt) for the most part understand that working extra comes with the territory and unless it's ordered and approved from higher mgmt., they are not getting comp OR O/T. But it seems to vary from place to place. Also, what to do about "aged" comp time... if it goes over 26 pay periods, can management in a particular organization just declare it use or lose? I understand for non-exempt it gets paid out, period. But for exempt, I think management should be able to decide if you don't use it, it's gone. Thoughts?
frankgonzalez  
#2 Posted : Wednesday, December 07, 2016 11:51:19 AM(UTC)
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Originally Posted by: FedCivServ Go to Quoted Post
I have recently been pulling my hair out trying to decipher OPM's guidance on exempt (non-FLSA) employees getting comp or overtime. I understand that it is probably purposely nebulous to apply across many agencies, but my frustration is that there is no STANDARD. In my org, supervisors (exempt) for the most part understand that working extra comes with the territory and unless it's ordered and approved from higher mgmt., they are not getting comp OR O/T. But it seems to vary from place to place. Also, what to do about "aged" comp time... if it goes over 26 pay periods, can management in a particular organization just declare it use or lose? I understand for non-exempt it gets paid out, period. But for exempt, I think management should be able to decide if you don't use it, it's gone. Thoughts?
Even exempt GS should not be working more than their 80 hours unless OT/Comp is approved (SES is different). Even if your overtime rate is your base rate, it should be documented somewhere (my old boss' position was "Where else can I show we need more people if we can't show we are working more than 80 hours a PP?") I've always fallen under the exempt side of the house, but that was always the guidance I got (both with the Air Force and now DHS/USCG).
https://www.opm.gov/policy-data-...ts/overtime-pay-title-5/

If the Comp time ages out, then it gets paid out (with exceptions for the pay cap of GS15, step 10/Level V of Exec Schedule, as with Overtime Pay).

The standard is the same across all agencies...as OPM guidance is pretty clear (at least to me).

Not seeing where your confusion lies.
You should have voted Cthulu...the greatest of all Evils
FedCivServ  
#3 Posted : Tuesday, December 13, 2016 7:43:46 AM(UTC)

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Originally Posted by: frankgonzalez Go to Quoted Post
Originally Posted by: FedCivServ Go to Quoted Post
I have recently been pulling my hair out trying to decipher OPM's guidance on exempt (non-FLSA) employees getting comp or overtime. I understand that it is probably purposely nebulous to apply across many agencies, but my frustration is that there is no STANDARD. In my org, supervisors (exempt) for the most part understand that working extra comes with the territory and unless it's ordered and approved from higher mgmt., they are not getting comp OR O/T. But it seems to vary from place to place. Also, what to do about "aged" comp time... if it goes over 26 pay periods, can management in a particular organization just declare it use or lose? I understand for non-exempt it gets paid out, period. But for exempt, I think management should be able to decide if you don't use it, it's gone. Thoughts?
Even exempt GS should not be working more than their 80 hours unless OT/Comp is approved (SES is different). Even if your overtime rate is your base rate, it should be documented somewhere (my old boss' position was "Where else can I show we need more people if we can't show we are working more than 80 hours a PP?") I've always fallen under the exempt side of the house, but that was always the guidance I got (both with the Air Force and now DHS/USCG).
https://www.opm.gov/policy-data-...ts/overtime-pay-title-5/

If the Comp time ages out, then it gets paid out (with exceptions for the pay cap of GS15, step 10/Level V of Exec Schedule, as with Overtime Pay).

The standard is the same across all agencies...as OPM guidance is pretty clear (at least to me).

Not seeing where your confusion lies.

_________________________

Thank you... you just made my point perfectly. This was always the guidance YOU got... but this is NOT across the board. And I'm DoD... so it's not like I'm in a different agency altogether. Here is what the OPM website says -- I would not consider this clear:


"An agency MAY provide that an FLSA-exempt employee who (1) fails to take earned compensatory time off within 26 pay periods or (2) transfers to another agency or separates from Federal service before the expiration of the 26 pay period time limit-

•Receive payment for the unused compensatory time off at the overtime rate in effect when earned OR

•Forfeit the unused compensatory time off, unless failure to use the compensatory time off is due to an exigency of the service beyond the employee's control. (An FLSA-exempt employee whose earned compensatory time off would otherwise be forfeited due to an exigency of service beyond the employee's control must receive payment for the unused compensatory time off at the overtime rate in effect when earned.)"

the OR is what is driving me crazy. I read this to say, in my organization (because I've already checked.. my "agency" does not have an official policy) I can make it our policy to select the OR... if you don't use it in 26 pay periods (except exigent circumstances) you lose it. I am holding my subordinate sups accountable to make sure it DOES get used but if it doesn't, using the OPM guidance above, I can consider it use or lose. REMEMBER this is exempt only. And suffer & permit only applies to non-exempt so if I have exempt employees putting in extra time that was not ordered & approved, it's donated time (including my own.. as a senior manager I routinely put in at least 10-12 hours a week of my "own" time...goes w/ the territory). See what I mean?
FedCivServ  
#4 Posted : Tuesday, December 13, 2016 7:54:14 AM(UTC)

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I looked up your link and it says "pay for hours of work officially ORDERED OR APPROVED in excess of 8 hours in a day or 40 hours in an administrative workweek." Also says "FLSA exempt employees, as defined in 5 U.S.C. 5541(2), who work full-time, part-time, or intermittent tours of duty ARE ELIGIBLE FOR title 5 overtime pay". If an exempt employee works more than 40 hours without the supervisor ordering & approving it, they do not need to be compensated for it. And being eligible for it does not mean they are entitled to it. I have gotten a legal read on this part of it by the way. Automatic payouts of comp time that turned into overtime without formal approval of said comp time created a huge bill in my organization which is what created the interest in this subject. Just find it interesting that the language is as "open" as it is which creates county options such as yours and mine.
frankgonzalez  
#5 Posted : Tuesday, December 13, 2016 9:36:11 AM(UTC)
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I'd make the argument that any time worked over the 80 a pp, and NOT counseled on, and expected (per your post) IS approved overtime/comp time (I'd bet a good labor law Attorney like Broida/Hadley/Wiley could give us the reference on this! After all, if it is regularly done and expected by senior management, then the argument goes, "if I asked, I know they would deny the request, but it is expected of everyone to 'donate' their time beyond your normal duty hours. This is to hide the fact we really are understaffed..." And so on). But, your wanting some legal basis for your wanted outcome...

Looking at some references here, I found this if it helps:

FLSA-exempt employees
•FLSA-exempt employees may only receive compensation for overtime work if the overtime was ordered and approved in advance by a management official authorized to order and approve overtime work, and the employee actually performs the overtime work. 5 USC 5542. This is known as Title 5 overtime.
•The employee may receive overtime as back pay under 5 USC 5596 if it is found that regular overtime work was improperly denied. 5 USC 5596.
•FLSA-exempt employees may forfeit their unused compensatory time earned if they do not use it within the time limits set by the agency head, unless they are prevented from doing so due to a contingency outside their control. 5 CFR 550.114 (d)(2).

So...You need the agency head (so unless this is delegated down, you are talking Secretary level) to determine the comp time limits for use/lose (if you go that route). And, if the employee can argue they were denied overtime that should have been approved, they can get it (of course, they would need to show they asked as some point or were directed to work the extra hours).
You should have voted Cthulu...the greatest of all Evils
FedCivServ  
#6 Posted : Tuesday, December 13, 2016 12:33:13 PM(UTC)

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Originally Posted by: frankgonzalez Go to Quoted Post
I'd make the argument that any time worked over the 80 a pp, and NOT counseled on, and expected (per your post) IS approved overtime/comp time (I'd bet a good labor law Attorney like Broida/Hadley/Wiley could give us the reference on this! After all, if it is regularly done and expected by senior management, then the argument goes, "if I asked, I know they would deny the request, but it is expected of everyone to 'donate' their time beyond your normal duty hours. This is to hide the fact we really are understaffed..." And so on). But, your wanting some legal basis for your wanted outcome...

Looking at some references here, I found this if it helps:

FLSA-exempt employees
•FLSA-exempt employees may only receive compensation for overtime work if the overtime was ordered and approved in advance by a management official authorized to order and approve overtime work, and the employee actually performs the overtime work. 5 USC 5542. This is known as Title 5 overtime.
•The employee may receive overtime as back pay under 5 USC 5596 if it is found that regular overtime work was improperly denied. 5 USC 5596.
•FLSA-exempt employees may forfeit their unused compensatory time earned if they do not use it within the time limits set by the agency head, unless they are prevented from doing so due to a contingency outside their control. 5 CFR 550.114 (d)(2).

So...You need the agency head (so unless this is delegated down, you are talking Secretary level) to determine the comp time limits for use/lose (if you go that route). And, if the employee can argue they were denied overtime that should have been approved, they can get it (of course, they would need to show they asked as some point or were directed to work the extra hours).


Got it...thanks. And that it's "expected"... well, let's put it this way, it happens, and the vast majority just suck it up. Management could easily say it isn't required, or asked for... I think we'd be covered since they are exempt. We are talking GS-14 and 15 equivalents by the way... if that makes a diff in your reasoning. In my command, it would be frowned upon if someone at that level routinely asked for comp time or whatever -- they might get it but there would be whispering. I'm not saying it's right... just the way it is. Your first comment I would agree with for non-supervisory people (hence the 'suffer and permit' comment I made earlier). The main problem case we had was someone who clearly was trying to pad the paycheck and even though put in for comp time, didn't really want it and refused to take it when supervisor told him to (we have since cleared THAT problem up). Non-exempt can ask for overtime. We do have a formal rule now that EVERYONE has to get prior permission to work O/T (non exempt) or comp time (exempt) on an official O/T and comp time form. Supervisor has to approve BEFORE work is done unless an emergency. If there are some who refuse to work as much as a minute over and they are in a leadership role if it isn't approved, that's their choice. But when we get 59 min or someone needs to go pick up their kid who's sick... well I guess that's what leave is for. Our leadership folks who work over usually get taken care of when they need to. But with this issue we have now, that's probably out the window. Everything has to be documented...
frankgonzalez  
#7 Posted : Wednesday, December 14, 2016 4:13:37 AM(UTC)
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I have some GS-14s in the bargaining unit at my current location, so grade usually means little (and some of the most headache inducing complaints I have worked have been from GS14s and -15s!).

That said, I do work over some days...mainly to finish up something that will be easier or quicker to finish than to close out, put away and then try to remember exactly where I was the next morning more than anything else. But there are times people decide they NEED to file a complaint at 15:59 (when my day is supposed to end at 16:00) and they don't want to make an appointment. Those days can be an hour or more late in the office. Thankfully those are rare, and in my new position should be even rarer. But then again, it isn't expected of me to do that, and my boss would expect me to tell her if my workload exceeds the time to complete it so she can adjust as necessary.

My old boss (and mentor) was s stickler for documenting all work past the 80 hours a pp. If it went on too long, then he would raise the issue of too many external taskers (we often got requested to address issues outside of EO that were people related- to include mediating/facilitating between the unions and management as both preferred us over outsiders) or needing more people. Of course, as we added people, they (leadership) threw more work (non-EO) our way, but that is how life goes! Of course, while I was there, the 3-star and SES exec director approved our office for 10-20 hours of OT/Comp time per pp to ensure we never needed to worry about it. Didn't always use it, but for a 4 month period, myself and a coworker put in 15-20 hours a pay period comp time to catch up all our filing for the office and convert everything to digital records. Went from needing walls of filing cabinets to only needing 2 total (and room to spare!). Well worth the agony of working almost every Saturday for those months.



You should have voted Cthulu...the greatest of all Evils
Vol  
#8 Posted : Friday, May 10, 2019 6:59:56 AM(UTC)
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I was researching this topic and will have to necro this post, but to make a new topic about it seems silly.

Why does the FLSA say: Under certain prescribed conditions, employees of State or local government agencies may receive compensatory time off, at a rate of not less than one and one-half hours for each overtime hour worked, instead of cash overtime pay.

But OPM says that you receive 1 hour of comp time for 1 hour of overtime?
Because if overtime is paid at a different rate than normal time, then why is comp time received 1:1 rate conversion?

Thank you! And sorry for the necro. It just doesn't make bit sense to me.

Shouldn't the comp time accrued be at the same multiplier (if any) used for calculating overtime?

Also GS-11 are FLSA and anything above it is FLSA-Exempt? Even if I don't have any firing/hiring power?
My job is a 9/11/12. I'm FLSA covered at 9 and 11 , but exempt at GS12... what gives?

Edited by user Friday, May 10, 2019 7:11:41 AM(UTC)  | Reason: Not specified

I'm just waiting here waiting for the third impact.
TheRealOrange  
#9 Posted : Friday, May 10, 2019 7:43:45 AM(UTC)
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Originally Posted by: Vol Go to Quoted Post
Also GS-11 are FLSA and anything above it is FLSA-Exempt? Even if I don't have any firing/hiring power?
My job is a 9/11/12. I'm FLSA covered at 9 and 11 , but exempt at GS12... what gives?

The grade is not necessarily the determining factor. OPM starts with a presumption that each employee is FLSA non-exempt "unless the employing agency correctly determines that the employee clearly meets one or more of the exemption criteria...." By Federal regulation "the employing agency must review and make a determination on each employee's exemption status." It can be an extremely involved process. For a listing of the possible exemptions and criteria, you can look at the regulations: https://www.law.cornell....ext/5/part-551/subpart-B .

https://apps.opm.gov/flsa/main2.htm
frankgonzalez  
#10 Posted : Friday, May 10, 2019 7:49:15 AM(UTC)
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Originally Posted by: Vol Go to Quoted Post
I was researching this topic and will have to necro this post, but to make a new topic about it seems silly.

Why does the FLSA say: Under certain prescribed conditions, employees of State or local government agencies may receive compensatory time off, at a rate of not less than one and one-half hours for each overtime hour worked, instead of cash overtime pay.

But OPM says that you receive 1 hour of comp time for 1 hour of overtime?
Because if overtime is paid at a different rate than normal time, then why is comp time received 1:1 rate conversion?

Thank you! And sorry for the necro. It just doesn't make bit sense to me.

Shouldn't the comp time accrued be at the same multiplier (if any) used for calculating overtime?

Also GS-11 are FLSA and anything above it is FLSA-Exempt? Even if I don't have any firing/hiring power?
My job is a 9/11/12. I'm FLSA covered at 9 and 11 , but exempt at GS12... what gives?
State and local governments are different than federal employees (ie there are many other differences as well).

You should have voted Cthulu...the greatest of all Evils
GWPDA  
#11 Posted : Saturday, May 11, 2019 10:12:41 AM(UTC)
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It took me two months to persuade Payroll to honour the choice of State to deduct my tax. During that time they first sent my tax to the State they decided was appropriate, then sent it to that state AND the State I told them to send it to until finally removing their choice from the mix. I'll never see that mis-paid tax again unless I file a tax return to the wrong state, which I decline to do. I paid for and submitted receipts to G8 for the costs of 'decorating' the exhibits in the new building - because there was no mechanism to cover that cost in the time we were directed was necessary. I have never seen a refund of the cost, nor do I expect to. An 'error' in the travel office kicked my payment to the travel card into late status, which while arguing with travel I went ahead and paid - only to have the charge company merrily subtract the 'late' amount from my paycheque - which I had paid to them. A month later, the only notice I got that the whole thing was screwed was discovering on the monthly bill a credit of the exact amount that they had taken from my paycheque. I then had to call the company and demand they repay me the money.

Do I want to file for overtime or comp time when I work thirty minutes or an hour over my allotted 8 hours? Really?
SD Analyst  
#12 Posted : Monday, May 13, 2019 8:04:47 PM(UTC)
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Originally Posted by: GWPDA Go to Quoted Post
It took me two months to persuade Payroll to honour the choice of State to deduct my tax. During that time they first sent my tax to the State they decided was appropriate, then sent it to that state AND the State I told them to send it to until finally removing their choice from the mix. I'll never see that mis-paid tax again unless I file a tax return to the wrong state, which I decline to do. I paid for and submitted receipts to G8 for the costs of 'decorating' the exhibits in the new building - because there was no mechanism to cover that cost in the time we were directed was necessary. I have never seen a refund of the cost, nor do I expect to. An 'error' in the travel office kicked my payment to the travel card into late status, which while arguing with travel I went ahead and paid - only to have the charge company merrily subtract the 'late' amount from my paycheque - which I had paid to them. A month later, the only notice I got that the whole thing was screwed was discovering on the monthly bill a credit of the exact amount that they had taken from my paycheque. I then had to call the company and demand they repay me the money.

Do I want to file for overtime or comp time when I work thirty minutes or an hour over my allotted 8 hours? Really?

Wow! That is crazy!! Re the State tax situation, doesn't DFAS process your Agency's payroll? You should be able to go into MyPay and choose which state you want taxes deducted for.
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