SECTION 14. ANNUAL PREMIUM PAY UNDER SECTION 7(k) OF THE FLSA
Applicability
Under Section 7(a) of the FLSA, overtime is defined as hours of work in excess of 40 in a week. Section 7(k) of the FLSA establishes a different overtime standard for FLSA NONEXEMPT employees who receive premium pay for standby duty or AUO and who meet the following definitions:
- Fire protection employees who perform work properly classified in the Fire Protection and Prevention Series, GS-081, including any firefighter who meets the GS-081 qualifications who is assigned to perform support functions (communications or dispatching functions, equipment maintenance or repair).
- Law enforcement officers who perform work classified to the GS-1811 Criminal Investigating Series or the GS-1812 Special Investigating Series except those who are primarily engaged in doing compliance inspections or those deemed FLSA EXEMPT by virtue of their being designated for availability pay. NOTE: Those not covered by 7(K) are subject to the overtime provisions applicable to NONEXEMPT employees set forth in the rest of this Handbook.
Special overtime provision under Section 7(k) of the FLSA
Employees who meet the definitions above must be compensated at the FLSA overtime rate for hours of a tour which are in excess of the following maximums:
- For employees engaged in fire protection activities: 212 hours in a work period of 28 days; 53 hours in a work period of seven days; or in the case of any work period between seven and 28 days, a proportionate number of hours in this work period.
- For employees engaged in law enforcement activities: 171 hours in a work period of 28 days; 42 3/4 hours in a work period of seven days; or in the case of any work period between seven and 28 days, a proportionate number of hours in this work period.
Hours of work under Section 7(k) of the FLSA
Hours of work or tour of duty, as used in Section 7(k) of the FLSA, means all the time an employee is on duty including scheduled and unscheduled periods and periods of paid leave.
Scheduled period means a scheduled shift or a scheduled period outside the shift.
Unscheduled period refers to the time spent in work by an employee outside the scheduled shift, e.g., time spent by police officers in court outside their scheduled shift.
Sleeping and meal times. In the absence of a labor-management agreement that says otherwise, sleeping and meal times are included in hours of work when the employee's tour of duty is 24 hours or less; sleeping and meal time are excluded from hours of work when an employee's tour of duty is more than 24 hours long. Sleeping facilities must be adequate, and the employee must be able to get at least 5 hours of uninterrupted sleep in order for sleep time to qualify as such. If any of these conditions is missing, the entire time is hours of work.
Work period. Under Section 7(k) the work period must be at least seven days and not more than 28 days. If a work period of less than 28 days is established, the maximum number of hours in the tour of duty before the requirement to pay overtime must be proportionate to the appropriate maximum number of hours requirement for the 28-day work period in effect for the calendar year.
EXAMPLE: An operating unit may establish a 28 day work period with 212 hours as the maximum number of hours before the requirement to pay overtime, a 14 day work period with 106 hours as the maximum number of hours before the requirement to pay overtime, a 7-day work period with 53 hours as the minimum number of hours before the requirement to pay overtime, etc.
Ad hoc firefighters and law enforcement officers
An operating unit which uses NONEXEMPT employees, other than those included in the definitions, to perform fire protection or law enforcement duties during an emergency situation must apply the 7-day work period for determining the percentage of total hours worked by these employees in fire protection or law enforcement duties and for applying the special overtime provisions of Section 7(k) of the FLSA.