5 U.S.C. §§ 5542–5546

8 sections in range

§5542. Overtime rates; computation

5 U.S.C. § 5542

(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 labor¹ 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)

(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)

(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.

Footnotes

1 So in original. Probably should be capitalized.

Notes, amendments, and revision history

(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.)

Historical and Revision Notes
1966 Act
Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 911.	June 30, 1945, ch. 212, § 201, 59 Stat. 296. Sept. 1, 1954, ch. 1208, § 203, 68 Stat. 1109.
(b)	5 U.S.C. 912a. 5 U.S.C. 912b.	Sept. 1, 1954, ch. 1208, § 205(b), 68 Stat. 1110.

In subsection (a)(1), and (2), the word “officer” is omitted as included in “employee”. The word “scheduled” is omitted since section 603 of the Act of Oct. 11, 1962, Pub. L. 87–793, 76 Stat. 847, eliminated the necessity of referring to rates as scheduled or longevity. References to the “Classification Act of 1949, as amended” are omitted as unnecessary.

In subsection (b), former sections 912a and 912b are combined and restated.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act
Section of title 5	Source (U.S. Code)	Source (Statutes at Large)
5542(a)	5 App.: 911.	July 18, 1966, Pub. L. 89–504, § 404(a), 80 Stat. 297.

The words “of the Classification Act of 1949, as amended” are omitted as unnecessary.

Editorial Notes

References in Text

GS–10 and GS–14, referred to in subsec. (a), are contained in the General Schedule which is set out under section 5332 of this title.

The Fair Labor Standards Act of 1938, referred to in subsec. (a)(6)(A), is act June 25, 1938, ch. 676, 52 Stat. 1060, which is classified generally to chapter 8 (§ 201 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see section 201 of Title 29 and Tables.

Section 7 of the Fair Labor Standards Act of 1938, referred to in subsec. (c), is classified to section 207 of Title 29, Labor.

Section 37(a)(3) of the State Department Basic Authorities Act of 1956, referred to in subsec. (e), is classified to section 2709(a)(3) of Title 22, Foreign Relations and Intercourse.

The Fair Labor Standards Act, referred to in subsec. (h)(1)(A), probably means the Fair Labor Standards Act of 1938, act June 25, 1938, ch. 676, 52 Stat. 1060, which is classified generally to chapter 8 (§ 201 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see section 201 of Title 29 and Tables.

Amendments

2021—Subsec. (a)(6)(A). Pub. L. 117–81, § 1108, inserted “outside the United States” after “temporary duty” and “of 1938” after “Fair Labor Standards Act” and substituted “naval vessels” for “the nuclear aircraft carrier that is forward deployed in Japan” and “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.” for “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.”

Subsec. (a)(6)(B). Pub. L. 116–283 substituted “September 30, 2026” for “September 30, 2021”.

Subsec. (h). Pub. L. 117–81, § 1110, added subsec. (h).

2018—Subsec. (a)(6)(B). Pub. L. 115–232 substituted “September 30, 2021” for “September 30, 2019”.

2017—Subsec. (a)(6)(B). Pub. L. 115–91 substituted “September 30, 2019” for “September 30, 2018”.

2016—Subsec. (a)(6)(B). Pub. L. 114–328 substituted “September 30, 2018” for “September 30, 2017”.

2015—Subsec. (a)(6)(B). Pub. L. 114–92 substituted “September 30, 2017” for “September 30, 2015”.

2014—Subsec. (a)(6)(B). Pub. L. 113–291 substituted “2015” for “2014”.

Subsec. (g). Pub. L. 113–277 added subsec. (g).

2011—Subsec. (a)(6). Pub. L. 111–383 added par. (6).

2003—Subsec. (a)(2). Pub. L. 108–136 inserted “the greater of” before “one and one-half” and “or the hourly rate of basic pay of the employee” before “, and all that amount”.

2000—Subsec. (a)(5). Pub. L. 106–558 added par. (5).

1998—Subsec. (e). Pub. L. 105–277, § 101(b) [title IV, § 407(c)(2)] and § 2316(c)(2), amended subsec. (e) identically, substituting “title 18 or section 37(a)(3) of the State Department Basic Authorities Act of 1956,” for “title 18, United States Code,”.

Subsec. (f). Pub. L. 105–277, § 101(h) [title VI, § 628(a)(1)], added subsec. (f).

1995—Subsec. (e). Pub. L. 104–52 added subsec. (e).

1994—Subsec. (d). Pub. L. 103–329 added subsec. (d).

1992—Subsec. (a)(4). Pub. L. 102–378, § 2(41)(A), substituted “officer,” for “officer (within the meaning of section 8331(20) or 8401(17)),” and realigned margin of closing provision.

Subsec. (c). Pub. L. 102–378, § 2(41)(B), amended second sentence generally. Prior to amendment, second sentence read as follows: “In the case of an employee who would, were it not for the preceding sentence, be subject to this section, hours of work in excess of 8 hours in a day shall be deemed to be overtime hours for the purposes of such section 7 and hours in a paid nonwork status shall be deemed to be hours of work.”

1990—Subsec. (a). Pub. L. 101–509, § 529 [title I, § 101(b)(3)(E)], inserted “(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)” after “GS–10” wherever appearing.

Subsec. (a)(4). Pub. L. 101–509, § 529 [title IV, § 410(a)], added par. (4).

Subsec. (c). Pub. L. 101–509, § 529 [title II, § 210(1)], added subsec. (c).

1984—Subsec. (b)(2)(B)(iv). Pub. L. 98–473 inserted “, 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”.

1971—Subsec. (a). Pub. L. 92–194 substituted “For full-time, part-time and intermittent tours of duty, hours” for “Hours”.

1968—Subsec. (a)(3). Pub. L. 90–556 added par. (3).

1967—Subsec. (b)(2)(B). Pub. L. 90–206 designated existing provisions as cls. (i) and (iii) and added cls. (ii) and (iv).

Statutory Notes and Related Subsidiaries

Effective Date of 2014 Amendment

Pub. L. 113–277, § 2(i), as added by Pub. L. 114–13, § 1(a), May 19, 2015, 129 Stat. 197, provided that: “Subsections (b), (c), (d), and (g) [enacting section 5550 of this title, amending this section and sections 5547 and 8331 of this title and section 213 of Title 29, Labor, and enacting provisions set out as a note under section 5550 of this title], and the amendments made by such subsections, shall take effect on the first day of the first pay period beginning on or after January 1, 2016, except that— any provision in section 5550(b) of title 5, United States Code, as added by subsection (b), relating to administering elections and making advance assignments to a regular tour of duty shall be applicable before such effective date to the extent determined necessary by the Director of the Office of Personnel Management; and the Director may issue regulations as necessary prior to such effective date.”

[Pub. L. 114–13, § 1(b), May 19, 2015, 129 Stat. 197, provided that: “The amendment made by subsection (a) [enacting section 2(i) of Pub. L. 113–277, set out above] shall be deemed to have been enacted on the date of enactment of the Border Patrol Agent Pay Reform Act of 2014 (Public Law 113–277) [approved Dec. 18, 2014].” ]

Effective Date of 2000 Amendment

Pub. L. 106–558, § 2(b), Dec. 21, 2000, 114 Stat. 2777, as amended by Pub. L. 107–20, title II, § 2605, July 24, 2001, 115 Stat. 178, provided that: “The amendments made by this section [amending this section] shall take effect on the date of enactment of this Act [Dec. 21, 2000].”

Effective Date of 1998 Amendment

Pub. L. 105–277, div. A, § 101(b) [title IV, § 407(d)], div. G, subdiv. B, title XXIII, § 2316(d), Oct. 21, 1998, 112 Stat. 2681–50, 2681–102, 2681–829, provided that: “The amendments made by this section [amending this section and section 5545a of this title] shall take effect on the first day of the first applicable pay period— which begins on or after the 90th day following the date of the enactment of this Act [Oct. 21, 1998]; and on which date all regulations necessary to carry out such amendments are (in the judgment of the Director of the Office of Personnel Management and the Secretary of State) in effect.” [Jan. 29, 1999, see 64 F.R. 4517.]

Amendment by section 101(h) [title VI, § 628(a)(1)] of Pub. L. 105–277 effective on first day of first applicable pay period which begins on or after Oct. 1, 1998, see section 101(h) [title VI, § 628(e)] of Pub. L. 105–277, set out as a note under section 4109 of this title.

Effective Date of 1994 Amendment

Amendment by Pub. L. 103–329 effective first day of first applicable pay period beginning on or after 30th day following Sept. 30, 1994, with exceptions relating to criminal investigators employed in Offices of Inspectors General, see section 633(e) of Pub. L. 103–329, set out as an Effective Date note under section 5545a of this title.

Effective Date of 1992 Amendment

Amendment by Pub. L. 102–378 effective as of first day of first applicable pay period beginning on or after Oct. 2, 1992, see section 9(b)(9) of Pub. L. 102–378, set out as a note under section 6303 of this title.

Effective Date of 1990 Amendment

Amendment by section 529 [title I, § 101(b)(3)(E), title II, § 210(1)] of Pub. L. 101–509 effective on such date as the President shall determine, but not earlier than 90 days, and not later than 180 days, after Nov. 5, 1990, see section 529 [title III, § 305] of Pub. L. 101–509, set out as a note under section 5301 of this title.

Effective Date of 1968 Amendment

Pub. L. 90–556, § 3, Oct. 10, 1968, 82 Stat. 969, provided that: “The amendments made by this Act [amending this section and section 5545 of this title] shall take effect on the first day of the first pay period which begins on or after the thirtieth day after the date of enactment of this Act [Oct. 10, 1968].”

Effective Date of 1967 Amendment

Pub. L. 90–206, title II, § 220(a)(4), Dec. 16, 1967, 81 Stat. 639, provided that, except as otherwise expressly provided: “Sections 222 [enacting section 5733 of this title and amending this section, section 5544 of this title, section 3571 of Title 39, The Postal Service], and 223 [enacting section 5345 of this title] shall become effective thirty days after the date of enactment of this title [Dec. 16, 1967].”

Regulations

Pub. L. 113–277, § 2(h), Dec. 18, 2014, 128 Stat. 3005, provided that: “The Director of the Office of Personnel Management shall promulgate regulations to carry out this Act [see section 1 of Pub. L. 113–277, set out as a Short Title of 2014 Amendment note under section 101 of this title] and the amendments made by this Act.”

Rules of Construction

Pub. L. 113–277, § 2(f), Dec. 18, 2014, 128 Stat. 3004, provided that: “Nothing in this section [enacting section 5550 of this title, amending this section and sections 5547 and 8331 of this title and section 213 of Title 29, Labor, and enacting provisions set out as notes under this section and section 5550 of this title] or the amendments made by this section shall be construed to— limit the right of U.S. Customs and Border Protection to assign both scheduled and unscheduled work to a border patrol agent based on the needs of U.S. Customs and Border Protection in excess of the hours of work normally applicable under the election of the border patrol agent, regardless of what the border patrol agent might otherwise have elected; require compensation of a border patrol agent other than for hours during which the border patrol agent is actually performing work or using approved paid leave or other paid time off; or exempt a border patrol agent from any limitations on pay, earnings, or compensation, including the limitations under section 5547 of title 5, United States Code.”

Border Patrol Rate of Pay

Pub. L. 113–277, § 2(a), Dec. 18, 2014, 128 Stat. 2995, provided that: Purpose.—The purposes of this Act [see section 1 of Pub. L. 113–277, set out as a Short Title of 2014 Amendment note under section 101 of this title] are— to strengthen U.S. Customs and Border Protection and ensure that border patrol agents are sufficiently ready to conduct necessary work and will perform overtime hours in excess of a 40-hour workweek based on the needs of U.S. Customs and Border Protection; and to ensure U.S. Customs and Border Protection has the flexibility to cover shift changes and retains the right to assign scheduled and unscheduled work for mission requirements and planning based on operational need.”

§5543. Compensatory time off

5 U.S.C. § 5543

(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.

Notes, amendments, and revision history

(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.)

Historical and Revision Notes
1966 Act
Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 912.	June 30, 1945, ch. 212, § 202, 59 Stat. 297. May 24, 1946, ch. 270, § 9, 60 Stat. 218. Sept. 1, 1954, ch. 1208, § 204, 68 Stat. 1109.

In subsection (a), the words “head of an agency” are substituted for “head of any department, independent establishment, or agency, including Government-owned or controlled corporations, or of the municipal government of the District of Columbia, or the head of any legislative or judicial agency to which this subchapter applies” because of the definition of “agency” and the application stated in section 5541.

In subsection (a)(1), the word “officer” is omitted as included in “employee”.

In subsection (a)(2), the words “at his own discretion” are omitted as unnecessary in view of the permissive nature of the authority. The word “officer” is omitted as included in “employee”. The word “scheduled” is omitted since section 603 of the Act of Oct. 11, 1962, Pub. L. 87–793, 76 Stat. 847, eliminated the necessity of referring to rates as scheduled or longevity. Reference to the “Classification Act of 1949, as amended” is omitted as unnecessary.

In subsection (b), the words “in his discretion” are omitted as unnecessary in view of the permissive nature of the authority. The words “overtime work” are substituted for “any work in excess of forty hours in any regularly scheduled administrative workweek” because of the definition of “overtime work” in section 5542(a).

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act
Section of title 5	Source (U.S. Code)	Source (Statutes at Large)
5543(a)(2)	5 App.: 912.	July 18, 1966, Pub. L. 89–504, § 404(b), 80 Stat. 297.

Editorial Notes

References in Text

Section 7 of the Fair Labor Standards Act of 1938, referred to in subsecs. (a)(1) and (b), is classified to section 207 of Title 29, Labor.

GS–10, referred to in subsec. (a)(2), is contained in the General Schedule which is set out under section 5332 of this title.

Amendments

2006—Subsec. (d). Pub. L. 109–163 added subsec. (d).

1996—Subsecs. (b), (c). Pub. L. 104–201 added subsec. (b) and redesignated former subsec. (b) as (c).

1990—Subsec. (a)(1). Pub. L. 101–509, § 529 [title II, § 210(2)], inserted “under section 5542 or section 7 of the Fair Labor Standards Act of 1938” after “payment”.

Subsec. (a)(2). Pub. L. 101–509, § 529 [title I, § 101(b)(3)(E)], inserted “(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)” after “GS–10”.

Statutory Notes and Related Subsidiaries

Effective Date of 1990 Amendment

Amendment by Pub. L. 101–509 effective on such date as the President shall determine, but not earlier than 90 days, and not later than 180 days, after Nov. 5, 1990, see section 529 [title III, § 305] of Pub. L. 101–509, set out as a note under section 5301 of this title.

§5544. Wage-board overtime, Sunday rates, and other premium pay

5 U.S.C. § 5544

(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).

(d)

A prevailing rate employee described in section 5342(a)(2)(A) shall receive incident response premium pay under the same terms and conditions that apply to a covered employee under section 5545c if that employee—

(1)

is employed by the Forest Service or the Department of the Interior; and

(2)

(A)

is a wildland firefighter, as defined in section 5332a(a); or

(B)

is certified by the applicable agency to perform wildland fire incident-related duties during the period the employee is deployed to respond to a qualifying incident (as defined in section 5545c(a)).

Notes, amendments, and revision history

(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; Pub. L. 119–4, div. A, title VIII, § 1807, Mar. 15, 2025, 139 Stat. 30.)

Historical and Revision Notes
1966 Act
Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a)	5 U.S.C. 673c (2d proviso).	Mar. 28, 1934, ch. 102, § 23 (proviso), 48 Stat. 522.
		Aug. 13, 1962, Pub. L. 87–581, § 201 (2d proviso), 76 Stat. 360.
	5 U.S.C. 913.	June 30, 1945, ch. 212, § 203, 59 Stat. 297. Sept. 1, 1954, ch. 1208, § 205(a), 68 Stat. 1109.
(b)	5 U.S.C. 933 (as applicable to 5 U.S.C. 673c).	June 30, 1945, ch. 212, § 503 (as applicable to § 23 of the Act of Mar. 28, 1934, ch. 102, 48 Stat. 522, as amended), 59 Stat. 301.

In subsection (a), former sections 673c (2d proviso) and 913 are combined and restated for clarity and conciseness. The last 28 words of section 205(a) of the Act of Sept. 1, 1954, 68 Stat. 1109, are omitted as executed and covered by technical section 8.

Subsection (b) is restated to conform to subsection (a). In former section 933, the words “Classification Act of 1949” were substituted for “Classification Act of 1923” on authority of section 1106(a) of the Act of Oct. 28, 1949, ch. 782, 63 Stat. 972.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act
Section of title 5	Source (U.S. Code)	Source (Statutes at Large)
5544(a)	5 App.: 673c (last proviso of 1st par.).	July 18, 1966, Pub. L. 89–504, § 405(f), 80 Stat. 298.

The words “a part of which is on Sunday” are coextensive with and substituted for “any part of which is within the period commencing at midnight Saturday and ending at midnight Sunday.” The words “is entitled to additional pay” are coextensive with and substituted for “shall be paid extra compensation.”

Editorial Notes

References in Text

Section 7 of the Fair Labor Standards Act of 1938, referred to in subsec. (a), is classified to section 207 of Title 29, Labor.

Codification

Amendment by Pub. L. 119–4 is based on section 457(b)(1) of H.R. 8998, from the 118th Congress (Department of the Interior, Environment, and Related Congress, Agencies Appropriations Act, 2025), as passed by the House of Representatives on July 24, 2024, which was enacted into law by section 1807 of div. A of Pub. L. 119–4.

Amendments

2025—Pub. L. 119–4 amended section catchline generally, substituting “Wage-board overtime, Sunday rates, and other premium pay” for “Wage-board overtime and Sunday rates; computation”.

Subsec. (d). Pub. L. 119–4 added subsec. (d).

2008—Subsec. (a). Pub. L. 110–181, in third sentence of concluding provisions, substituted “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).” for “administratively.”

1998—Subsec. (a). Pub. L. 105–277, which directed the amendment of subsec. (a) by inserting after the fourth sentence “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.”, was executed by making the insertion after the first sentence of the concluding provisions, to reflect the probable intent of Congress.

1996—Subsec. (c). Pub. L. 104–201 inserted “and the provisions of section 5543(b)” after “the last two sentences of subsection (a)”.

1992—Subsec. (a). Pub. L. 102–378, § 2(42)(B), amended last two sentences generally. Prior to amendment, last two sentences read as follows: “This section, other than the sixth sentence, 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 this section, hours of work in excess of 8 hours in a day shall be deemed to be overtime hours for the purposes of such section 7 and hours in a paid nonwork status shall be deemed to be hours of work.”

Subsec. (a)(2), (3). Pub. L. 102–378, § 2(42)(A), substituted “2,087” for “2,080”.

Subsec. (c). Pub. L. 102–378, § 2(42)(C), added subsec. (c).

1990—Subsec. (a). Pub. L. 101–509 inserted at end “This section, other than the sixth sentence, 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 this section, hours of work in excess of 8 hours in a day shall be deemed to be overtime hours for the purposes of such section 7 and hours in a paid nonwork status shall be deemed to be hours of work.”

1972—Subsec. (a). Pub. L. 92–392 substituted “pay” for “basic pay” and provided for determination of pay under section 5343 or 5349 of this title.

1967—Subsec. (a). Pub. L. 90–206 provided that time spent in a travel status away from the official duty station could not qualify as hours of work unless the travel involved the performance of work while traveling, was incident to travel involving the performance of work while traveling, carried out under arduous conditions, or resulting from an event which could not be scheduled or controlled administratively.

Statutory Notes and Related Subsidiaries

Effective Date of 2025 Amendment

Section 457(d) of H.R. 8998, from the 118th Congress, as passed by the House of Representatives on July 24, 2024, which was enacted into law by Pub. L. 119–4, div. A, title VIII, § 1807, Mar. 15, 2025, 139 Stat. 30, provided that: “The amendments made by this section [enacting section 5545c of this title and amending this section and section 5547 of this title] shall take effect on the first day of the first applicable pay period beginning on or after either October 1, 2024 or the date of enactment of this Act [Mar. 15, 2025], whichever is later.”

Effective Date of 1992 Amendment

Effective Date of 1990 Amendment

Effective Date of 1972 Amendment

Amendment by Pub. L. 92–392 effective on first day of first applicable pay period beginning on or after 90th day after Aug. 19, 1972, see section 15(a) of Pub. L. 92–392, set out as an Effective Date note under section 5341 of this title.

Effective Date of 1967 Amendment

Amendment by Pub. L. 90–206 effective thirty days after Dec. 16, 1967, see section 220(a)(4) of Pub. L. 90–206, set out as a note under section 5542 of this title.

Canal Zone Employees

Pub. L. 85–550, § 17(3), July 25, 1958, 72 Stat. 411, provided that nothing in Pub. L. 85–550, which related to wage and employment practices of the Government of the United States in the Canal Zone, should affect the applicability of former sections 673c and 913 of this title [covered by this section] to those classes of employees, within the scope of former sections 673c and 913 of this title [covered by this section] on July 25, 1958.

§5545. Night, standby, irregular, and hazardous duty differential

5 U.S.C. § 5545

(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 applies is entitled to be paid the appropriate differential for any period in which he is subjected to physical hardship or hazard not usually involved in carrying out the duties of his position. However, the pay differential—

(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.

Notes, amendments, and revision history

(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.)

Historical and Revision Notes
1966 Act
Derivation	U.S. Code	Revised Statutes and Statutes at Large
(a), (b)	5 U.S.C. 921.	June 30, 1945, ch. 212, § 301, 59 Stat. 298. May 24, 1946, ch. 270, § 10, 60 Stat. 218. Sept. 1, 1954, ch. 1208, § 206, 68 Stat. 1110.
(c)	5 U.S.C. 926.	Sept. 1, 1954, ch. 1208, § 208(a), 68 Stat. 1111. July 18, 1958, Pub. L. 85–525, 72 Stat. 363.

In subsection (b), the words “head of an agency” are substituted for “head of any department, independent establishment, or agency, including Government-owned or controlled corporations” because of the definition of “agency” and the application stated in section 5541. The words “the United States” are substituted for “the several States and the District of Columbia”.

In subsection (c), the words “head of an agency” are substituted for “head of any department, independent establishment, or agency, including Government-owned or controlled corporations, or of the municipal government of the District of Columbia” because of the definition of “agency” and the application stated in section 5541. The word “officer” is omitted as included in “employee”. The word “scheduled” is omitted since section 603 of the Act of Oct. 11, 1962, Pub. L. 87–793, 76 Stat. 847, eliminated the necessity of referring to rates as scheduled or longevity. Reference to the “Classification Act of 1949, as amended” is omitted as unnecessary.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act
Section of title 5	Source (U.S. Code)	Source (Statutes at Large)
5545(c)	5 App.: 926.	July 18, 1966, Pub. L. 89–504 §§ 404(c), 405(d), (e), 80 Stat. 297, 298.
5545(d)	5 App.: 1134.	July 19, 1966, Pub. L. 89–512, § 1, 80 Stat. 318.

In the second sentence of subsection (d), the words “Under such regulations as the Commission may prescribe, and for such minimum periods as it determines appropriate” are substituted for clauses (3) and (4) of the third sentence of 5 App. U.S.C. 1134. That requirement in clause (4) that the Commission prescribe regulations is codified in 5 U.S.C. 5548(b) by section 1 (32) of this bill. The words “an employee to whom chapter 51 and subchapter III of chapter 53 of this title applies is entitled to be paid the appropriate differential” are substituted for “The appropriate differential shall be paid to any officer or employee to whom this Act applies” to reflect the codification of that act (Classification Act of 1949) in title 5, United States Code, and to conform with the definitions applicable.

In subsection (d)(1), the words “does not apply to an employee” are substituted for “shall not be applicable with respect to any officer or employee.”

In subsection (d)(2), the words “may not . . . applicable to the employee” are substituted for “shall not . . . applicable with respect to such officer or employee”.

Editorial Notes

References in Text

GS–10, referred to in subsec. (c)(1), is contained in the General Schedule which is set out under section 5332 of this title.

The Occupational Safety and Health Act of 1970, referred to in subsec. (d), is Pub. L. 91–596, Dec. 29, 1970, 84 Stat. 1590, which is classified principally to chapter 15 (§ 651 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under section 651 of Title 29 and Tables.

Amendments

2021—Subsec. (d)(1). Pub. L. 117–58 substituted “except—” and subpars. (A) and (B) for “except in such circumstances as the Office may by regulation prescribe; and”.

2003—Subsec. (d). Pub. L. 108–136 inserted before period at end of first sentence “, 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”.

1992—Subsec. (d). Pub. L. 102–378 made technical correction to directory language of Pub. L. 101–509, § 529 [title II, § 203]. See 1990 Amendment note below.

1990—Subsec. (c)(1). Pub. L. 101–509, § 529 [title I, § 101(b)(3)(E)], inserted “(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)” after “GS–10”.

Subsec. (d). Pub. L. 101–509, § 529 [title II, § 203], as amended by Pub. L. 102–378, struck out “irregular or intermittent” before “duty involving unusual” in first sentence and inserted “, except in such circumstances as the Office may by regulation prescribe” after “thereof” in par. (1).

1989—Subsec. (c)(2). Pub. L. 101–173 amended par. (2) generally. Prior to amendment, par. (2) read as follows: “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 him 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 determined as an appropriate percentage, not less than 10 percent nor more than 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, by taking into consideration the frequency and duration of irregular unscheduled overtime duty required in the position.”

1982—Subsec. (a). Pub. L. 97–258 substituted “section 5141” for “section 180”.

1979—Subsec. (c)(2). Pub. L. 96–54 substituted “percent” for “per centum” wherever appearing.

1978—Subsecs. (c), (d). Pub. L. 95–454 substituted “Office of Personnel Management” for “Civil Service Commission” and “Office” for “Commission” wherever appearing.

1975—Pub. L. 94–183 struck out “Sunday,” after “Night,” in section catchline.

1970—Subsec. (c)(2). Pub. L. 91–231 corrected the system of premium compensation of employees whose work schedules cannot be administratively controlled by providing for separate treatment for irregular, unscheduled, and overtime duty on one hand and for duty at night, on Sundays, and on holidays on the other.

1968—Subsec. (c)(1). Pub. L. 90–556 inserted “(or, for a position described in section 5542(a)(3) of this title, of the basic pay of the position)” after “GS–10”.

1967—Subsec. (e)(2). Pub. L. 90–206 substituted “not less than 10 percent nor more than 25 percent” for “not in excess of 15 percent”.

Statutory Notes and Related Subsidiaries

Effective Date of 2003 Amendment

Subject to any vested constitutional property rights, any administrative or judicial determination after Nov. 24, 2003, concerning backpay for a differential established under subsec. (d) of this section to be based on occupational safety and health standards described in the amendments made by subsections (a) and (b) of section 1122 of Pub. L. 108–136, amending this section and section 5343 of this title, see section 1122(c) of Pub. L. 108–136, set out as a note under section 5343 of this title.

Effective Date of 1990 Amendment

Effective Date of 1989 Amendment

Pub. L. 101–173, § 1(b), Nov. 27, 1989, 103 Stat. 1292, provided that: “The amendment made by subsection (a) [amending this section] shall apply with respect to overtime duty performed on or after the first day of the first applicable pay period beginning after September 30, 1990.”

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title.

Effective Date of 1970 Amendment

Amendment by Pub. L. 91–231 effective Apr. 15, 1970, see section 9(b) of Pub. L. 91–231, formerly set out in a 1970 Increase in Pay Rates note under section 5332 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–556 effective on first day of first pay period beginning on or after thirtieth day after Oct. 10, 1968, see section 3 of Pub. L. 90–556, set out as a note under section 5542 of this title.

Effective Date of 1967 Amendment

Amendment by Pub. L. 90–206 effective at beginning of first pay period which begins on or after Dec. 16, 1967, see section 220(a)(3) of Pub. L. 90–206, set out as a note under section 603 of Title 28, Judiciary and Judicial Procedure.

Wage Rate Requirements

For provisions relating to rates of wages to be paid to laborers and mechanics on projects for construction, alteration, or repair work funded under div. D or an amendment by div. D of Pub. L. 117–58, including authority of Secretary of Labor, see section 18851 of Title 42, The Public Health and Welfare.

§5545a. Availability pay for criminal investigators

5 U.S.C. § 5545a

(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)”.

Notes, amendments, and revision history

(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.)

Editorial Notes

References in Text

Title II of Public Law 99–399, referred to in subsecs. (a)(2) and (k)(1), is title II of Pub. L. 99–399, Aug. 27, 1986, 100 Stat. 858, which is classified generally to subchapter II (§ 4821 et seq.) of chapter 58 of Title 22, Foreign Relations and Intercourse. For complete classification of this Act to the Code, see Short Title note set out under section 4801 of Title 22 and Tables.

Sections 609(b)(1), 805, 806, and 856 of the Foreign Service Act of 1980, referred to in subsec. (k)(2)(B), are classified to sections 4009(b)(1), 4045, 4046, and 4071e, respectively, of Title 22, Foreign Relations and Intercourse.

Amendments

2016—Subsec. (i). Pub. L. 114–250 substituted “apply to any employee of the U.S. Customs and Border Protection’s Air and Marine Operations, or any successor organization,” for “apply to a pilot employed by the United States Customs Service” and “such employee” for “such pilot”.

1998—Subsec. (a)(2). Pub. L. 105–277, § 101(b) [title IV, § 407(c)(1)] and § 2316(c)(1), amended subsec. (a)(2) identically, substituting “Public Law 99–399, subject to subsection (k))” for “Public Law 99–399)” in introductory provisions.

Subsec. (k). Pub. L. 105–277, § 101(b) [title IV, § 407(a)] and § 2316(a), amended section identically, adding subsec. (k).

1996—Subsec. (h)(2)(A). Pub. L. 104–208 struck out “8431,” after “8331(3),”.

1995—Subsec. (a)(2). Pub. L. 104–19, § 901(1)(A), inserted “who” before “is required to” in introductory provisions.

Subsec. (a)(2)(E)(v). Pub. L. 104–19, § 901(1)(B), inserted “and” at end.

Subsec. (i). Pub. L. 104–19, § 902(a), added subsec. (i).

Subsec. (j). Pub. L. 104–19, § 901(2), added subsec. (j).

Statutory Notes and Related Subsidiaries

Effective Date of 2016 Amendment

Pub. L. 114–250, § 1(b), Dec. 8, 2016, 130 Stat. 1001, provided that: “The amendments made by subsection (a) [amending this section] shall take effect on the first day of the first applicable pay period beginning on or after the date that is 14 days after the date of enactment of this Act [Dec. 8, 2016].”

Effective Date of 1998 Amendment

For effective date of amendment by Pub. L. 105–277, see section 101(b) [title IV, § 407(d)] and section 2316(d) of Pub. L. 105–277, set out as a note under section 5542 of this title.

Effective Date of 1996 Amendment

Pub. L. 104–208, div. A, title I, § 101(f) [title VI, § 659 [title II, § 207]], Sept. 30, 1996, 110 Stat. 3009–314, 3009–378, provided that: “This title [title II (§§ 201–207) of section 659 of section 101(f) of Pub. L. 104–208, amending this section and sections 8351, 8401, 8433, 8435, and 8440a to 8440c of this title, repealing section 8431 of this title, enacting provisions set out as notes under sections 8401 and 8433 of this title, and amending provisions set out as a note under section 5343 of this title] shall take effect on the date of the enactment of this Act [Sept. 30, 1996] and withdrawals and elections as provided under the amendments made by this title shall be made at the earliest practicable date as determined by the Executive Director in regulations.”

Effective Date of 1995 Amendment

Pub. L. 104–19, title I, § 902(b), July 27, 1995, 109 Stat. 230, provided that: “The amendment made by subsection (a) of this section [amending this section] shall take effect on the first day of the first applicable pay period which begins on or after the 30th day following the date of enactment of this Act [July 27, 1995].”

Effective Date

Pub. L. 103–329, title VI, § 633(e), Sept. 30, 1994, 108 Stat. 2428, provided that: “The amendments made by this section [enacting this section and amending sections 5542 and 5547 of this title and section 213 of Title 29, Labor] shall take effect on the first day of the first applicable pay period which begins on or after the later of October 1, 1994, or the 30th day following the date of enactment of this Act [Sept. 30, 1994], except that: Criminal investigators, employed in Offices of Inspectors General, who are not receiving administratively uncontrollable overtime compensation or who are receiving such premium pay at a rate less than 25 percent prior to the date of enactment of this Act, may implement availability pay at any time prior to September 30, 1995, after which date availability pay as authorized under this section shall be provided to such criminal investigators. Criminal investigators, employed by Offices of Inspectors General, who are receiving administratively uncontrollable overtime at a rate less than 25 percent, shall continue to receive this compensation at the same rate or higher until availability pay compensation is provided, which shall be no later than the last pay period ending on or before September 30, 1995.”

Implementation

Pub. L. 105–277, div. A, § 101(b) [title IV, § 407(b)], div. G, subdiv. B, title XXIII, § 2316(b), Oct. 21, 1998, 112 Stat. 2681–50, 2681–102, 2681–828, provided that: “Not later than the date on which the amendments made by this section [amending this section and section 5542 of this title] take effect [see Effective Date of 1998 Amendment note set out above], each special agent of the Diplomatic Security Service who satisfies the requirements of subsection (k)(1) of section 5545a of title 5, United States Code, as amended by this section, and the appropriate supervisory officer, to be designated by the Secretary of State, shall make an initial certification to the Secretary of State that the special agent is expected to meet the requirements of subsection (d) of such section 5545a. The Secretary of State may prescribe procedures necessary to administer this subsection.”

Transfer of Functions

For transfer of functions, personnel, assets, and liabilities of the United States Customs Service of the Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see sections 203(1), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. For establishment of U.S. Customs and Border Protection in the Department of Homeland Security, treated as if included in Pub. L. 107–296 as of Nov. 25, 2002, see section 211 of Title 6, as amended generally by Pub. L. 114–125, and section 802(b) of Pub. L. 114–125, set out as a note under section 211 of Title 6.

Certification of Criminal Investigators

Pub. L. 103–329, title VI, § 633(f), Sept. 30, 1994, 108 Stat. 2428, provided that: “Not later than the effective date of this section [see Effective Date note above], each criminal investigator under section 5545a of title 5, United States Code, as added by this section, and the appropriate supervisory officer, to be designated by the head of the agency, shall make an initial certification to the head of the agency that the criminal investigator is expected to meet the requirements of subsection (d) of such section 5545a. The head of a law enforcement agency may prescribe procedures necessary to administer this paragraph.”

§5545b. Pay for firefighters

5 U.S.C. § 5545b

(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)

Notwithstanding section 8114(e)(1), overtime pay for a firefighter subject to this section for hours in a regular tour of duty shall be included in any computation of pay under section 8114.

Notes, amendments, and revision history

(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.)

Editorial Notes

References in Text

Section 7(k) of the Fair Labor Standards Act of 1938, referred to in subsec. (d)(2), is classified to section 207(k) of Title 29, Labor.

Amendments

2000—Subsec. (d)(4). Pub. L. 106–554 added par. (4).

Effective Date of 2000 Amendment

Pub. L. 106–554, § 1(a)(3) [title VI, § 641(b)], Dec. 21, 2000, 114 Stat. 2763, 2763A–169, provided that: “The amendment in subsection (a) [amending this section] shall be effective as if it had been enacted as part of the Federal Firefighters Overtime Pay Reform Act of 1998 [Pub. L. 105–277, div A, § 101(h) [title VI, § 628]] (112 Stat. 2681–519).”

Statutory Notes and Related Subsidiaries

Effective Date

Section effective on first day of first applicable pay period which begins on or after Oct. 1, 1998, see section 101(h) [title VI, § 628(e)] of Pub. L. 105–277, set out as an Effective Date of 1998 Amendment note under section 4109 of this title.

Regulations

Pub. L. 105–277, div. A, § 101(h) [title VI, § 628(f)], Oct. 21, 1998, 112 Stat. 2681–480, 2681–521, provided that: “Under regulations prescribed by the Office of Personnel Management, a firefighter subject to section 5545b of title 5, United States Code, as added by this section, whose regular tours of duty average 60 hours or less per workweek and do not include a basic 40-hour workweek, shall, upon implementation of this section, be granted an increase in basic pay equal to 2 step-increases of the applicable General Schedule grade, and such increase shall not be an equivalent increase in pay. If such increase results in a change to a longer waiting period for the firefighter’s next step increase, the firefighter shall be credited with an additional year of service for the purpose of such waiting period. If such increase results in a rate of basic pay which is above the maximum rate of the applicable grade, such resulting pay rate shall be treated as a retained rate of basic pay in accordance with section 5363 of title 5, United States Code.”

Eligibility for Pay Increase

Pub. L. 106–31, title III, § 3032, May 21, 1999, 113 Stat. 104, provided that: The treatment provided to firefighters under section 628(f) of the Treasury and General Government Appropriations Act, 1999 (as included in section 101(h) of division A of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (Public Law 105–277)) [set out as a note above] shall be provided to any firefighter who— on the effective date of section 5545b of title 5, United States Code [see Effective Date note above]— was subject to such section; and had a regular tour of duty that averaged more than 60 hours per week; and before December 31, 1999, is involuntarily moved without a break in service from the regular tour of duty under paragraph (1) to a regular tour of duty that— averages 60 hours or less per week; and does not include a basic 40-hour workweek. Subsection (a) shall apply to firefighters described under that subsection as of the effective date of section 5545b of title 5, United States Code. The Office of Personnel Management may prescribe regulations necessary to implement this section.”

No Reduction in Regular Pay

Pub. L. 105–277, div. A, § 101(h) [title VI, § 628(g)], Oct. 21, 1998, 112 Stat. 2681–480, 2681–521, provided that: “Under regulations prescribed by the Office of Personnel Management, the regular pay (over the established work scheduling cycle) of a firefighter subject to section 5545b of title 5, United States Code, as added by this section, shall not be reduced as a result of the implementation of this section.”

§5545c. Incident response premium pay for employees engaged in wildland firefighting

5 U.S.C. § 5545c

(a)

Definitions.— In this section—

(1)

the term “appropriate committees of Congress” means—

(A)

the Committee on Appropriations of the House of Representatives;

(B)

the Committee on Oversight and Accountability of the House of Representatives;

(C)

the Committee on Agriculture of the House of Representatives;

(D)

the Committee on Natural Resources of the House of Representatives;

(E)

the Committee on Appropriations of the Senate;

(F)

the Committee on Homeland Security and Governmental Affairs of the Senate;

(G)

the Committee on Energy and Natural Resources of the Senate; and

(H)

the Committee on Agriculture, Nutrition, and Forestry of the Senate;

(2)

the term “covered employee” means an employee of the Forest Service or the Department of the Interior who is—

(A)

a wildland firefighter, as defined in section 5332a(a); or

(B)

certified by the applicable agency to perform wildland fire incident-related duties during the period that employee is deployed to respond to a qualifying incident;

(3)

the term “incident response premium pay” means pay to which a covered employee is entitled under subsection (c);

(4)

the term “prescribed fire incident” means a wildland fire originating from a planned ignition in accordance with applicable laws, policies, and regulations to meet specific objectives;

(5)

the term “qualifying incident”—

(A)

means—

(i)

a wildfire incident, a prescribed fire incident, or a severity incident; or

(ii)

an incident that the Secretary of Agriculture or the Secretary of the Interior determines is similar in nature to an incident described in clause (i); and

(B)

does not include an initial response incident that is contained within 36 hours; and

(6)

the term “severity incident” means an incident in which a covered employee is pre-positioned in an area in which conditions indicate there is a high risk of wildfires.

(b)

Eligibility.— A covered employee is eligible for incident response premium pay under this section if—

(1)

the covered employee is deployed to respond to a qualifying incident; and

(2)

the deployment described in paragraph (1) is—

(A)

outside of the official duty station of the covered employee; or

(B)

within the official duty station of the covered employee and the covered employee is assigned to an incident-adjacent fire camp or other designated field location.

(c)

Entitlement to Incident Response Premium Pay.—

(1)

In general.— A covered employee who satisfies the conditions under subsection (b) is entitled to premium pay for the period in which the covered employee is deployed to respond to the applicable qualifying incident.

(2)

Computation.—

(A)

Formula.— Subject to subparagraphs (B) and (C), premium pay under paragraph (1) shall be paid to a covered employee at a daily rate of 450 percent of the hourly rate of basic pay of the covered employee for each day that the covered employee satisfies the requirements under subsection (b), rounded to the nearest whole cent.

(B)

Limitation.— Premium pay under this subsection may not be paid—

(i)

with respect to a covered employee for whom the annual rate of basic pay is greater than that for step 10 of GS–10, at a daily rate that exceeds the daily rate established under subparagraph (A) for step 10 of GS–10; or

(ii)

to a covered employee in a total amount that exceeds $9,000 in any calendar year.

(C)

Adjustments.—

(i)

Assessment.— The Secretary of Agriculture and the Secretary of the Interior shall assess the difference between the average total amount of compensation that was paid to covered employees, by grade, in fiscal years 2023 and 2024.

(ii)

Report.— Not later than 180 days after the date that is 1 year after the effective date of this section, the Secretary of Agriculture and the Secretary of the Interior shall jointly publish a report on the results of the assessment conducted under clause (i).

(iii)

Administrative actions.— After publishing the report required under clause (ii), the Secretary of Agriculture and the Secretary of the Interior, in consultation with the Director of the Office of Personnel Management, may, in the sole and exclusive discretion of the Secretaries acting jointly, administratively adjust the amount of premium pay paid under this subsection (or take other administrative action) to ensure that the average annual amount of total compensation paid to covered employees, by grade, is more consistent with such amount that was paid to those employees in fiscal year 2023.

(iv)

Congressional notification.— Not later than 3 days after an adjustment made, or other administrative action taken, under clause (iii) becomes final, the Secretary of Agriculture and the Secretary of the Interior shall jointly submit to the appropriate committees of Congress a notification regarding that adjustment or other administrative action, as applicable.

(d)

Treatment of Incident Response Premium Pay.— Incident response premium pay under this section—

(1)

is not considered part of the basic pay of a covered employee for any purpose;

(2)

may not be considered in determining a covered employee’s lump-sum payment for accumulated and accrued annual leave under section 5551 or section 5552;

(3)

may not be used in determining pay under section 8114 (relating to compensation for work injuries);

(4)

may not be considered in determining pay for hours of paid leave or other paid time off during which the premium pay is not payable; and

(5)

shall be disregarded in determining the minimum wage and overtime pay to which a covered employee is entitled under the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.).

Notes, amendments, and revision history

(Added Pub. L. 119–4, div. A, title VIII, § 1807, Mar. 15, 2025, 139 Stat. 30.)

Editorial Notes

References in Text

For the effective date of this section, referred to in subsec. (c)(2)(C)(ii), see Effective Date note below.

The Fair Labor Standards Act of 1938, referred to in subsec. (d)(5), is act June 25, 1938, ch. 676, 52 Stat. 1060, which is classified generally to chapter 8 (§ 201 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see section 201 of Title 29 and Tables.

Codification

Section is based on section 457(a) of H.R. 8998, from the 118th Congress (Department of the Interior, Environment, and Related Congress, Agencies Appropriations Act, 2025), as passed by the House of Representatives on July 24, 2024, which was enacted into law by section 1807 of div. A of Pub. L. 119–4.

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Oversight and Accountability of the House of Representatives changed to the Committee on Oversight and Government Reform of the House of Representatives by House Resolution No. 5, One Hundred Nineteenth Congress, Jan. 3, 2025.

Effective Date

Section effective the first day of the first applicable pay period beginning on or after Mar. 15, 2025, see section 457(d) of H.R. 8998 from the 118th Congress, as passed by the House of Representatives on July 24, 2024, set out as an Effective Date of 2025 Amendment note under section 5544 of this title.

§5546. Pay for Sunday and holiday work

5 U.S.C. § 5546

(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.

Notes, amendments, and revision history

(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.)

Historical and Revision Notes
1966 Act
Derivation	U.S. Code	Revised Statutes and Statutes at Large
	5 U.S.C. 922.	June 30, 1945, ch. 212, § 302, 59 Stat. 298.
		May 24, 1946, ch. 270, § 11, 60 Stat. 218.
		Sept. 1, 1954, ch. 1208, § 207, 68 Stat. 1110.
		July 18, 1958, Pub. L. 85–533, § 1, 72 Stat. 377.

In subsections (a) and (b), the word “officer” is omitted as included in “employee”.

In subsections (b) and (c), the word “designated” is substituted for “such a” and “such” in former section 922(b) and (c) to identify the holiday as one designated by statute, Executive order, or the Board of Commissioners of the District of Columbia.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act
Section of title 5	Source (U.S. Code)	Source (Statutes at Large)
5546(a)	5 App.: 921a.	July 18, 1966, Pub. L. 89–504, § 405(b)(1), (c), 80 Stat. 297.

In subsection (a), the words “An employee who performs work . . . is entitled to pay . . . at the rate of his basic pay” are coextensive with and substituted for “Any . . . service . . . performed . . . shall be compensated . . . at the rate of basic compensation of the officer or employee performing such work.” The words “section 5542(a) of this title” are substituted for “section 201 of this Act” to reflect the codification of that section in title 5, United States Code. The words “between midnight Saturday and midnight Sunday” are coextensive with and substituted for “within the period commencing at midnight Saturday and ending at midnight Sunday”.

Editorial Notes

Amendments

1998—Subsec. (a). Pub. L. 105–277 inserted at end “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.”

1968—Subsec. (b). Pub. L. 90–623, § 1(13)(A), substituted “District of Columbia Council” for “Board of Commissioners of the District of Columbia”.

Subsec. (d). Pub. L. 90–623, § 1(13)(B), substituted “5542(a)” for “5442(a)”.

Statutory Notes and Related Subsidiaries

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–623 intended to restate without substantive change the law in effect on Oct. 22, 1968, but amendment of subsec. (d) of this section by section 1(13)(B) of Pub. L. 90–623 effective as of Sept. 6, 1966, for all purposes, see section 6 of Pub. L. 90–623, set out as a note under section 5334 of this title.

Transfer of Functions

District of Columbia Council, as established by Reorg. Plan No. 3 of 1967, abolished as of noon Jan. 2, 1975, by Pub. L. 93–198, title VII, § 711, Dec. 24, 1973, 87 Stat. 818, and replaced by Council of District of Columbia, as provided by section 401 of Pub. L. 93–198.

Condition of Performance

Pub. L. 105–277, div. A, § 101(h) [title VI, § 624], Oct. 21, 1998, 112 Stat. 2681–480, 2681–518, provided that: “Notwithstanding any other provision of law, no part of any funds provided by this Act or any other Act beginning in fiscal year 1999 and thereafter shall be available for paying Sunday premium pay to any employee unless such employee actually performed work during the time corresponding to such premium pay.”

Similar provisions were contained in the following prior appropriations act:

Pub. L. 105–61, title VI, § 636, Oct. 10, 1997, 111 Stat. 1316.