550.1308 5 cfr ch. i (11 02 edition) · 551.412 preparatory or concluding activi- ... ed by pub. l....

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5 CFR Ch. I (1–1–02 Edition)§ 550.1308

scheduling cycle must, to the extentpracticable, remain the same.

§ 550.1308 Transitional provisions.(a)(1) Effective on the first day of the

first pay period beginning on or afterOctober 1, 1998, a firefighter subject tothis subpart who has a regular tour ofduty that averages 60 hours or less perweek during a year, and that does notinclude a basic 40-hour workweek,must be granted an increase in basicpay equal to two within-grade in-creases for the General Schedule gradeapplicable to the firefighter.

(2) An increase granted under para-graph (a)(1) of this section is not con-sidered an equivalent increase in payfor within-grade increase purposesunder 5 U.S.C. 5335 and subpart D ofpart 531 of this chapter.

(3) If an increase granted under para-graph (a)(1) of this section results in alonger waiting period for the fire-fighter’s next within-grade increase,the firefighter must be credited with 52weeks of service for the purpose of thatwaiting period.

(4) If an increase granted under para-graph (a)(1) of this section results in arate of basic pay that is above the max-imum rate of basic pay for the applica-ble grade, that resulting pay rate mustbe treated as a retained rate of basicpay consistent with 5 U.S.C. 5363 andpart 536 of this chapter.

(b)(1) Effective on the first day of thefirst pay period beginning on or afterOctober 1, 1998, an employing agencymust temporarily establish a protectedannual rate of basic pay that exceeds afirefighter’s actual annual rate of basicpay (including any adjustment underparagraph (a) of this section), if nec-essary to ensure that the firefighter’sannualized regular pay is not reducedon that date. For this purpose,annualized regular pay means total payfor hours in the firefighter’s regulartour of duty, expressed as an annualrate based on the cycle of schedulesunder the firefighter’s regular tour ofduty. The annualized regular pay re-sulting from using the protected ratein applying the pay computation rulesunder this subpart must approximatelyequal (but be no less than) theannualized regular pay to which thefirefighter would have been entitled on

the effective date of this paragraphunder the former pay computationmethod.

(2) The protected rate of basic pay isfixed and not subject to further adjust-ments. The protected rate is a sched-uled rate of basic pay for purposes ofcomputing locality payments under 5U.S.C. 5304 and part 531, subpart F ofthis chapter.

(3) The protected rate of basic pay isterminated when it is equal to or lessthan the firefighter’s actual rate ofbasic pay or when the employee is nolonger covered by this subpart.

(c) For purposes of this section, theterm basic pay excludes locality payunder 5 U.S.C. 5304 and part 531, sub-part F, of this chapter.

PART 551—PAY ADMINISTRATIONUNDER THE FAIR LABOR STAND-ARDS ACT

Subpart A—General Provisions

Sec.551.101 General.551.102 Authority and administration.551.103 Coverage.551.104 Definitions.

Subpart B—Exemptions and Exclusions

551.201 Agency authority.551.202 General principles governing exemp-

tions.551.203 Exemption of General Schedule em-

ployees.551.204 Exemption of Federal Wage System

employees.551.205 Executive exemption criteria.551.206 Administrative exemption criteria.551.207 Professional exemption criteria.551.208 Effect of performing temporary work

or duties on FLSA exemption status.551.209 Foreign exemption criteria.551.210 Exemption of employees receiving

availability pay.551.211 Statutory exclusion.

Subpart C—Minimum Wage Provisions

BASIC PROVISION

551.301 Minimum wage.

SUBMINIMUM WAGE

551.311 Subminimum wage.

Subpart D—Hours of Work

GENERAL PROVISIONS

551.401 Basic principles.

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Office of Personnel Management § 551.102

551.402 Agency responsibility.

APPLICATION OF PRINCIPLES IN RELATION TONORMAL WORKDAY

551.411 Workday.551.412 Preparatory or concluding activi-

ties.

APPLICATION OF PRINCIPLES IN RELATION TOOTHER ACTIVITIES

551.421 Regular working hours.551.422 Time spent traveling.551.423 Time spent in training or attending

a lecture, meeting, or conference.551.424 Time spent adjusting grievances or

performing representational functions.551.425 Time spent receiving medical atten-

tion.551.426 Time spent in charitable activities.

SPECIAL SITUATIONS

551.431 Time spent on standby duty or in anon-call status.

551.432 Sleep time.

Subpart E—Overtime Pay Provisions

BASIC PROVISIONS

551.501 Overtime pay.

OVERTIME PAY COMPUTATIONS

551.511 Hourly regular rate of pay.551.512 Overtime pay entitlement.551.513 Entitlement to other forms of pay.551.514 Nondiscretionary bonuses.

FRACTIONAL HOURS OF WORK

551.521 Fractional hours of work.

COMPENSATORY TIME OFF

551.531 Compensatory time off.

SPECIAL OVERTIME PAY PROVISIONS

551.541 Employees engaged in fire protec-tion activities or law enforcement activi-ties.

Subpart F—Child Labor

551.601 Minimum age standards.551.602 Responsibilities.

Subpart G—FLSA Claims and Compliance

551.701 Applicability.551.702 Time limits.551.703 Avenues of review.551.704 Claimant’s representative.551.705 Filing an FLSA claim.551.706 Responsibilities.551.707 Withdrawal or cancellation of an

FLSA claim.551.708 Finality and effect of OPM FLSA

claim decision.551.709 Availability of information.

551.710 Where to file an FLSA claim withOPM.

AUTHORITY: 5 U.S.C. 5542(c); Sec. 4(f) of theFair Labor Standards Act of 1938, as amend-ed by Pub. L. 93–259, 88 Stat. 55 (29 U.S.C.204f).


SOURCE: 62 FR 67244, Dec. 23, 1997, unlessotherwise noted.

§ 551.101 General.

(a) The Fair Labor Standards Act of1938, as amended (referred to as ‘‘theAct’’ or ‘‘FLSA’’), provides for min-imum standards for both wages andovertime entitlement, and delineatesadministrative procedures by whichcovered worktime must be com-pensated. Included in the Act are provi-sions related to child labor, equal pay,and portal-to-portal activities. In addi-tion, the Act exempts specified em-ployees or groups of employees fromthe application of certain of its provi-sions. It prescribes penalties for thecommission of specifically prohibitedacts.

(b) This part contains the regula-tions, criteria, and conditions that theOffice of Personnel Management hasprescribed for the administration ofthe Act. This part supplements and im-plements the Act, and must be read inconjunction with it.

§ 551.102 Authority and administra-tion.

(a) Office of Personnel Management.Section 3(e)(2) of the Act authorizesthe application of the provisions of theAct to any person employed by theGovernment of the United States, asspecified in that section. Section 4(f) ofthe Act authorizes the Office of Per-sonnel Management (OPM) to admin-ister the provisions of the Act. OPM isthe administrator of the provisions ofthe Act with respect to any person em-ployed by an agency, except as speci-fied in paragraphs (b), (c), and (d) ofthis section.

(b) The Equal Employment OpportunityCommission administers the equal payprovisions contained in section 6(d) ofthe Act.


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(c) The Department of Labor admin-isters the Act for the following UnitedStates Government entities:

(1) The Library of Congress;(2) The United States Postal Service;(3) The Postal Rate Commission; and(4) The Tennessee Valley Authority.(d) Office of Compliance. The Congres-

sional Accountability Act of 1995, asamended, sections 1301 et seq. of title 2,United States Code, extends rights andprotections of the FLSA to employeesof the following United States Govern-ment entities, and assigns certain ad-ministrative responsibilities to the Of-fice of Compliance:

(1) The United States House of Rep-resentatives;

(2) The United States Senate;:(3) The Capitol Guide Service;(4) The Capitol Police;(5) The Congressional Budget Office;(6) The Office of the Architect of the

Capitol;(7) The Office of the Attending Physi-

cian; and(8) The Office of Compliance.

§ 551.103 Coverage.(a) Covered. Any employee of an agen-

cy who is not specifically excluded byanother statute is covered by the Act.This includes any person who is—

(1) Defined as an employee in section2105 of title 5, United States Code;

(2) A civilian employee appointedunder other appropriate authority; or

(3) Suffered or permitted to work byan agency whether or not formally ap-pointed.

(b) Not covered. The following personsare not covered under the Act:

(1) A person appointed under appro-priate authority without compensa-tion;

(2) A trainee;(3) A volunteer; or(4) A member of the Uniformed Serv-

ices.

§ 551.104 Definitions.In this part—Act or FLSA means the Fair Labor

Standards Act of 1938, as amended (29U.S.C. 201 et seq.).

Administrative employee means an em-ployee who meets the criteria in§ 551.206.

Agency, for purposes of OPM’s admin-istration of the Act, means any instru-mentality of the United States Govern-ment, or any constituent elementthereof acting directly or indirectly asan employer, as this term is defined insection 3(d) of the Act and in this sec-tion, but does not include the entitiesof the United States Government listedin § 551.102(c) for which the Departmentof Labor administers the Act or§ 551.102(d)(1) through (8), whose em-ployees are covered by the Congres-sional Accountability Act of 1995, asamended, which makes applicable therights and protections of the FLSA andassigns certain administrative respon-sibilities to the Office of Compliance.

Claim means a written allegationfrom a current or former employeeconcerning his or her FLSA exemptionstatus determination or entitlement tominimum wage or overtime pay forwork performed under the Act. Theterm ‘‘claim’’ is used generically insubpart G of this part to include com-plaints under the child labor provisionsof the Act.

Claim period means the time duringwhich the cause or basis of the claimoccurred.

Claimant means a current or formeremployee who files an FLSA claim.

Customarily and regularly means a fre-quency which must be greater than oc-casional but which may be less thanconstant. For example, the require-ment in § 551.205(a)(2) will be met by anemployee who normally and recur-rently exercises discretion and inde-pendent judgment in the day-to-dayperformance of duties.

Discretion and independent judgmentmeans work that involves comparingand evaluating possible courses of con-duct, interpreting results or implica-tions, and independently taking actionor making a decision after consideringthe various possibilities. However, firmcommitments or final decisions are notnecessary to support exemption. The‘‘decisions’’ made as a result of the ex-ercise of independent judgment mayconsist of recommendations for actionrather than the actual taking of ac-tion. The fact that an employee’s deci-sions are subject to review, and that onoccasion the decisions are revised orreversed after review, does not mean


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that the employee is not exercising dis-cretion and independent judgment ofthe level required for exemption. Workreflective of discretion and inde-pendent judgment must meet the threefollowing criteria:

(1) The work must be sufficientlycomplex and varied so as to custom-arily and regularly require discretionand independent judgment in deter-mining the approaches and techniquesto be used, and in evaluating results.This precludes exempting an employeewho performs work primarily requiringskill in applying standardized tech-niques or knowledge of established pro-cedures, precedents, or other guidelineswhich specifically govern the employ-ee’s action.

(2) The employee must have the au-thority to make such determinationsduring the course of assignments. Thisprecludes exempting trainees who arein a line of work which requires discre-tion but who have not been given au-thority to decide discretionary mattersindependently.

(3) The decisions made independentlymust be significant. The term ‘‘signifi-cant’’ is not so restrictive as to includeonly the kinds of decisions made byemployees who formulate policies orexercise broad commitment authority.However, the term does not extend tothe kinds of decisions that affect onlythe procedural details of the employ-ee’s own work, or to such matters asdeciding whether a situation does ordoes not conform to clearly applicablecriteria.

Emergency means a temporary condi-tion that poses a direct threat tohuman life or safety, serious damage toproperty, or serious disruption to theoperations of an activity, as deter-mined by the employing agency.

Employ means to engage a person inan activity that is for the benefit of anagency, and includes any hours of workthat are suffered or permitted.

Employee means a person who is em-ployed—

(1) As a civilian in an executive agen-cy as defined in section 105 of title 5,United States Code;

(2) As a civilian in a military depart-ment as defined in section 102 of title 5,United States Code;

(3) In a nonappropriated fund instru-mentality of an executive agency or amilitary department;

(4) In a unit of the judicial branch ofthe Government that has positions inthe competitive service; or

(5) The Government Printing Office.Employer, as defined in section 3(d) of

the Act, means any person acting di-rectly or indirectly in the interest ofan employer in relation to an employeeand includes a public agency, but doesnot include any labor organization(other than when acting as an em-ployer) or anyone acting in the capac-ity of officer or agent of such labor or-ganization.

Essential part of administrative or pro-fessional functions means work that isincluded as an integral part of adminis-trative or professional exempt work.This work is identified by examiningthe processes involved in performingthe exempt function. For example, theprocesses involved in evaluating a bodyof information include collecting andorganizing information; analyzing,evaluating, and developing conclu-sions; and frequently, preparing arecord of findings and conclusions.Often collecting or compiling informa-tion and preparing reports or otherrecords, if divorced from the evaluativefunction, are nonexempt tasks. Whenan employee who performs the evalua-tive functions also performs some orall of these related steps, all such work(for example, collecting background in-formation, recording test results, tab-ulating data, or typing reports) is in-cluded in the employee’s exempt du-ties.

Executive employee means an em-ployee who meets the criteria in§ 551.205.

Exempt area means any foreign coun-try, or any territory under the jurisdic-tion of the United States other thanthe following locations:

(1) A State of the United States;(2) The District of Columbia;(3) Puerto Rico;(4) The U.S. Virgin Islands;(5) Outer Continental Shelf Lands as

defined in the Outer Continental ShelfLands Act (67 Stat. 462);

(6) American Samoa;(7) Guam;(8) Midway Atoll;


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5 CFR Ch. I (1–1–02 Edition)§ 551.104

(9) Wake Island;(10) Johnston Island; and(11) Palmyra.FLSA exempt means not covered by

the minimum wage and overtime provi-sions of the Act.

FLSA exemption status means an em-ployee’s designation by the employingagency as either FLSA exempt orFLSA nonexempt from the minimumwage and overtime provisions of theAct.

FLSA exemption status determinationclaim means a claim from a current orformer employee challenging the cor-rectness of his or her FLSA exemptionstatus determination.

FLSA nonexempt means covered bythe minimum wage and overtime provi-sions of the Act.

FLSA overtime pay, for the purpose of§ 551.208, means overtime pay underthis part.

FLSA pay claim means a claim from acurrent or former employee concerninghis or her entitlement to minimumwage or overtime pay for work per-formed under the Act.

Foreign exemption means a provisionof the Act under which the minimumwage, overtime, and child labor provi-sions of the Act do not apply to anyemployee who spends all hours of workin a given workweek in an exemptarea.

Formulation or execution of manage-ment programs or policies means workthat involves management programsand policies which range from broadnational goals expressed in statutes orExecutive orders to specific objectivesof a small field office. Employees makepolicy decisions or participate indi-rectly, through developing or recom-mending proposals that are acted on byothers. Employees significantly affectthe execution of management pro-grams or policies typically when thework involves obtaining compliancewith such policies by other individualsor organizations, within or outside ofthe Federal Government, or makingsignificant determinations furtheringthe operation of programs and accom-plishment of program objectives. Ad-ministrative employees engaged insuch work typically perform one ormore phases of program management(that is, planning, developing, pro-

moting, coordinating, controlling, orevaluating operating programs of theemploying organization or of other or-ganizations subject to regulation orother controls).

Hours of work means all time spentby an employee performing an activityfor the benefit of an agency and underthe control or direction of the agency.Hours of work are creditable for thepurposes of determining overtime payunder subpart D of this subpart. Sec-tion 551.401 of subpart D further ex-plains this term. However, whethertime is credited as hours of work is de-termined by considering many factors,such as the rules in subparts D and E ofthis subpart, provisions of law, Comp-troller General decisions, OPM policyguidance, agency policy and regula-tions, negotiated agreements, the rulesin part 550 of this chapter (for hours ofwork for travel), and the rules in part410 of this chapter (for hours of workfor training).

Management or general business func-tion or supporting service, as distin-guished from production functions,means the work of employees who pro-vide support to line managers.

(1) These employees furnish such sup-port by—

(i) Providing expert advice in special-ized subject matter fields, such as thatprovided by management consultantsor systems analysts;

(ii) Assuming facets of the overallmanagement function, such as safetymanagement, personnel management,or budgeting and financial manage-ment;

(iii) Representing management insuch business functions as negotiatingand administering contracts, deter-mining acceptability of goods or serv-ices, or authorizing payments; or

(iv) Providing supporting services,such as automated data processing,communications, or procurement anddistribution of supplies.

(2) Neither the organizational loca-tion nor the number of employees per-forming identical or similar workchanges management or general busi-ness functions or supporting servicesinto production functions. The work,however, must involve substantial dis-cretion on matters of enough impor-tance that the employee’s actions and


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decisions have a noticeable impact onthe effectiveness of the organizationadvised, represented, or serviced.

Nonexempt area means any of the fol-lowing locations:

(1) A State of the United States;(2) The District of Columbia;(3) Puerto Rico;(4) The U.S. Virgin Islands;(5) Outer Continental Shelf Lands as

defined in the Outer Continental ShelfLands Act (67 Stat. 462);

(6) American Samoa;(7) Guam;(8) Midway Atoll;(9) Wake Island;(10) Johnston Island; and(11) Palmyra.Participation in the executive or admin-

istrative functions of a management offi-cial means the participation of employ-ees, variously identified as secretaries,administrative or executive assistants,aides, etc., in portions of the manage-rial or administrative functions of asupervisor whose scope of responsi-bility precludes personally attendingto all aspects of the work. To supportexemption, such employees must bedelegated and exercise substantial au-thority to act for the supervisor in theabsence of specific instructions or pro-cedures, and take actions which signifi-cantly affect the supervisor’s effective-ness.

Perform work in connection with anemergency means to perform work thatis directly related to resolving or cop-ing with an emergency, or its imme-diate aftermath, as determined by theemploying agency.

Preserve the claim period means to es-tablish the period of possible entitle-ment to back pay by filing a writtenclaim with either the agency employ-ing the claimant during the claim pe-riod or with OPM. The date the agencyor OPM receives the claim is the datethat determines the period of possibleentitlement to back pay.

Primary duty typically means theduty that constitutes the major part(over 50 percent) of an employee’swork. A duty constituting less than 50percent of the work may be credited asthe primary duty for exemption pur-poses provided that duty—

(1) Constitutes a substantial, regularpart of a position;

(2) Governs the classification andqualification requirements of the posi-tion; and

(3) Is clearly exempt work in terms ofthe basic nature of the work, the fre-quency with which the employee mustexercise discretion and independentjudgment, and the significance of thedecisions made.

Professional employee means an em-ployee who meets the criteria in§ 551.207.

Reckless disregard of the requirementsof the Act means failure to make ade-quate inquiry into whether conduct isin compliance with the Act.

Recognized organizational unit meansan established and defined organiza-tional entity which has regularly as-signed employees and for which a su-pervisor is responsible for planning andaccomplishing a continuing workload.This distinguishes supervisors fromleaders who head temporary groupsformed to perform assignments of lim-ited duration.

Situations 1 through 4 means the fourbasic situations described under FactorI, Nature of Supervisory Responsi-bility, in the Federal Wage System JobGrading Standard for Supervisors. Thesituations depict successively higherlevels of supervisory responsibility andauthority for scheduling work oper-ations, planning use of resources to ac-complish work, directing subordinatesin performing work assignments, andcarrying out administrative duties.

Statute of limitations means the timeframe within which an FLSA pay claimmust be filed, starting from the datethe right accrued. All FLSA pay claimsfiled on or after June 30, 1994, are sub-ject to a 2-year statute of limitations,except in cases of willful violationwhere the statute of limitations is 3years.

Suffered or permitted work means anywork performed by an employee for thebenefit of an agency, whether re-quested or not, provided the employee’ssupervisor knows or has reason to be-lieve that the work is being performedand has an opportunity to prevent thework from being performed.

Supervisory and closely related workmeans work that is included in the cal-culation of exempt work for super-visory positions.


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5 CFR Ch. I (1–1–02 Edition)§ 551.104

(1) Work is considered closely relatedto exempt supervisory work if it con-tributes to the effective supervision ofsubordinate workers, or the smoothfunctioning of the unit supervised, orboth. Examples of closely related workinclude the following:

(i) Maintaining various records per-taining to workload or employee per-formance;

(ii) Performing setup work that re-quires special skills, typically is notperformed by production employees inthe occupation, and does not approachthe volume that would justify hiring aspecially trained employee to perform;and

(iii) Performing infrequently recur-ring or one-time tasks which are im-practical to delegate because theywould disrupt normal operations ortake longer to explain than to perform.

(2) Activities in which both workersand supervisors are required to engagethemselves are considered to be closelyrelated to the primary duty of the posi-tion, for example, physical trainingduring tours of duty for firefightingand law enforcement personnel.

Temporary work or duties means workor duties an employee must tempo-rarily perform that are not consistentwith the primary or grade-controllingduty of the employee’s official positiondescription. The period of temporarywork or duties may or may not involvea different geographic duty location.

Title 5 overtime pay, for the purpose of§ 551.208, means overtime pay underpart 550 of this chapter.

Trainee means a person who does notmeet the definition of employee in thissection and who is assigned or attachedto a Federal activity primarily fortraining. A person who attends a train-ing program under the following condi-tions is considered a trainee and, there-fore, is not an employee of the Govern-ment of the United States for purposesof the Act:

(1) The training, even though it in-cludes actual operation of the facilitiesof the Federal activity, is similar tothat given in a vocational school orother institution of learning;

(2) The training is for the benefit ofthe individual;

(3) The trainee does not displace reg-ular employees, but, rather, is super-vised by them;

(4) The Federal activity which pro-vides the training derives no imme-diate advantage from the activities ofthe trainee; on occasion its operationsmay actually be impeded;

(5) The trainee is not necessarily en-titled to a job with the Federal activ-ity at the completion of the trainingperiod; and

(6) The agency and the trainee under-stand that the trainee is not entitledto the payment of wages from theagency for the time spent in training.

Volunteer means a person who doesnot meet the definition of employee inthis section and who volunteers or do-nates his or her service, the primarybenefit of which accrues to the per-former of the service or to someoneother than the agency. Under such cir-cumstances there is neither an ex-pressed nor an implied compensationagreement. Services performed by sucha volunteer include personal servicesthat, if left unperformed, would not ne-cessitate the assignment of an em-ployee to perform them.

Willful violation means a violation incircumstances where the agency knewthat its conduct was prohibited by theAct or showed reckless disregard of therequirements of the Act. All of thefacts and circumstances surroundingthe violation are taken into account indetermining whether a violation waswillful.

Work of an intellectual nature meanswork requiring general intellectualabilities, such as perceptiveness, ana-lytical reasoning, perspective, andjudgment applied to a variety of sub-ject matter fields, or work requiringmental processes which involve sub-stantial judgment based on consid-ering, selecting, adapting, and applyingprinciples to numerous variables. Theemployee cannot rely on standardizedapplication of established proceduresor precedents, but must recognize andevaluate the effect of a continual vari-ety of conditions or requirements in se-lecting, adapting, or innovating tech-niques and procedures, interpretingfindings, and selecting and recom-mending the best alternative from


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among a broad range of possible ac-tions.

Work of a specialized or technical na-ture means work which requires sub-stantial specialized knowledge of acomplex subject matter and of theprinciples, techniques, practices, andprocedures associated with that subjectmatter field. This knowledge charac-teristically is acquired through consid-erable on-the-job training and experi-ence in the specialized subject matterfield, as distinguished from profes-sional knowledge characteristically ac-quired through specialized academiceducation.

Workday means the period betweenthe commencement of the principal ac-tivities that an employee is engaged toperform on a given day and the ces-sation of the principal activities forthat day. The term is further explainedin § 551.411.

Worktime, for the purpose of deter-mining FLSA exemption status, meanstime spent actually performing work.This excludes periods of time duringwhich an employee performs no work,such as standby time, sleep time, mealperiods, and paid leave.

Worktime in a representative workweekmeans the average percentages ofworktime over a period long enough toeven out normal fluctuations in work-loads and be representative of the jobas a whole.

Workweek means a fixed and recur-ring period of 168 hours—seven con-secutive 24-hour periods. It need notcoincide with the calendar week butmay begin on any day and at any hourof a day. For employees subject to part610 of this chapter, the workweek shallbe the same as the administrativeworkweek defined in § 610.102 of thischapter.

Workweek basis means the unit oftime used as the basis for applyingovertime standards under the Act and,for employees under flexible or com-pressed work schedules, under 5 U.S.C.6121(6) or (7). The Act takes a singleworkweek as its standard and does notpermit averaging of hours over two ormore weeks, except for employees en-gaged in fire protection or law enforce-

ment activities under section 7(k) ofthe Act.

[62 FR 67244, Dec. 23, 1997; 63 FR 2304, Jan. 14,1998]

Subpart B—Exemptions andExclusions


§ 551.201 Agency authority.

The employing agency may designatean employee FLSA exempt only whenthe agency correctly determines thatthe employee meets one or more of theexemption criteria of this subpart andsuch supplemental interpretations orinstructions issued by OPM.

§ 551.202 General principles governingexemptions.

In all exemption determinations, theagency must observe the followingprinciples:

(a) Each employee is presumed to beFLSA nonexempt unless the employingagency correctly determines that theemployee clearly meets one or more ofthe exemption criteria of this subpartand such supplemental interpretationsor instructions issued by OPM.

(b) Exemption criteria must be nar-rowly construed to apply only to thoseemployees who are clearly within theterms and spirit of the exemption.

(c) The burden of proof rests with theagency that asserts the exemption.

(d) An employee who clearly meetsthe criteria for exemption must be des-ignated FLSA exempt. If there is a rea-sonable doubt as to whether an em-ployee meets the criteria for exemp-tion, the employee should be des-ignated FLSA nonexempt.

(e) There are groups of GeneralSchedule employees who are FLSAnonexempt because they do not fit anyof the exemption categories. Thesegroups include the following:

(1) Nonsupervisory General Scheduleemployees in equipment operating andprotective occupations, and most cler-ical occupations (see the definition ofparticipation in the executive or adminis-trative functions of a management officialin subpart A of this part);


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5 CFR Ch. I (1–1–02 Edition)§ 551.203

(2) Nonsupervisory General Scheduleemployees performing technician workin positions properly classified belowGS–9 (or the equivalent level in othercomparable white-collar pay systems)and many, but not all, of those posi-tions properly classified at GS–9 orabove (or the equivalent level in othercomparable white-collar pay systems);and

(3) Nonsupervisory General Scheduleemployees at any grade level in occu-pations requiring highly specializedtechnical skills and knowledges thatcan be acquired only through prolongedjob training and experience, such asthe Air Traffic Control series, GS–2152,or the Aircraft Operations series, GS–2181, unless such employees are per-forming predominantly administrativefunctions rather than the technicalwork of the occupation.

(f) Although separate criteria areprovided for the exemption of execu-tive, administrative, and professionalemployees, those categories are notmutually exclusive. All exempt work,regardless of category, must be consid-ered. The only restriction is that, whenthe requirements of one category aremore stringent, the combination of ex-empt work must meet the more strin-gent requirements.

(g) Failure to meet the criteria forexemption under what might appear tobe the most appropriate criteria doesnot preclude exemption under anothercategory. For example, an engineeringtechnician who fails to meet the pro-fessional exemption criteria may beperforming exempt administrativework, or an administrative officer whofails to meet the administrative cri-teria may be performing exempt execu-tive work.

(h) Although it is normally feasibleand more convenient to identify the ex-emption category, this is not essential.An exemption may be based on a com-bination of functions, no one of whichconstitutes the primary duty, or theemployee’s primary duty may involvetwo categories which are intermingledand difficult to segregate. This doesnot preclude designating an employeeFLSA exempt, provided the work as awhole clearly meets the other exemp-tion criteria.

(i) The designation of an employee asFLSA exempt or nonexempt ultimatelyrests on the duties actually performedby the employee.

§ 551.203 Exemption of General Sched-ule employees.

(a) GS–4 or below. Any employee in aposition properly classified at GS–4 orbelow (or the equivalent level in othercomparable white-collar pay systems)is nonexempt, unless the employee issubject to the foreign exemption in§ 551.209.

(b) GS–5 or above. Any employee in aposition properly classified at GS–5 orabove (or the equivalent level in othercomparable white-collar pay systems)is exempt only if the employee is anexecutive, administrative, or profes-sional employee as defined in this sub-part, unless the employee is subject to§ 551.208 (the effect of performing tem-porary work or duties on FLSA exemp-tion status) or § 551.209 (the foreign ex-emption).

§ 551.204 Exemption of Federal WageSystem employees.

(a) Nonsupervisory. A nonsupervisoryemployee in the Federal Wage Systemor in other comparable wage systems isnonexempt, unless the employee is sub-ject to § 551.208 (the effect of per-forming temporary work or duties onFLSA exemption status) or § 551.209(the foreign exemption).

(b) Supervisory. A supervisory em-ployee in the Federal Wage System orin other comparable wage systems isexempt only if the employee is an exec-utive employee as defined in § 551.205,unless the employee is subject to§ 551.208 (the effect of performing tem-porary work or duties on FLSA exemp-tion status) or § 551.209 (the foreign ex-emption).

§ 551.205 Executive exemption criteria.An executive employee is a supervisor

or manager who manages a Federalagency or any subdivision thereof (in-cluding the lowest recognized organiza-tional unit with a continuing function)and customarily and regularly directsthe work of subordinate employees andmeets both of the following criteria:

(a) Primary duty test. The primaryduty test is met if the employee—


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(1) Has authority to make personnelchanges that include, but are not lim-ited to, selecting, removing, advancingin pay, or promoting subordinate em-ployees, or has authority to suggest orrecommend such actions with par-ticular consideration given to thesesuggestions and recommendations; and

(2) Customarily and regularly exer-cises discretion and independent judg-ment in such activities as work plan-ning and organization; work assign-ment, direction, review, and evalua-tion; and other aspects of managementof subordinates, including personneladministration.

(b) 80-percent test. In addition to theprimary duty test that applies to allemployees, the following employeesmust spend 80 percent or more of theworktime in a representative work-week on supervisory and closely re-lated work to meet the 80-percent test:

(1) Employees in positions properlyclassified in the General Schedule atGS–5 or GS–6 (or the equivalent level inother comparable white-collar pay sys-tems);

(2) Firefighting or law enforcementemployees in positions properly classi-fied in the General Schedule at GS–7,GS–8, or GS–9 who are subject to sec-tion 207(k) of title 29, United StatesCode; and

(3) Supervisors in positions properlyclassified in the Federal Wage Systembelow situation 3 of Factor I of theFederal Wage System Job Grading Stand-ard for Supervisors (or the equivalentlevel in other comparable wage sys-tems).

§ 551.206 Administrative exemptioncriteria.

An administrative employee is an advi-sor or assistant to management, a rep-resentative of management, or a spe-cialist in a management or generalbusiness function or supporting serviceand meets all four of the following cri-teria:

(a) Primary duty test. The primaryduty test is met if the employee’swork—

(1) Significantly affects the formula-tion or execution of management pro-grams or policies; or

(2) Involves management or generalbusiness functions or supporting serv-ices of substantial importance to theorganization serviced; or

(3) Involves substantial participationin the executive or administrativefunctions of a management official.

(b) Nonmanual work test. The em-ployee performs office or other pre-dominantly nonmanual work whichis—

(1) Intellectual and varied in nature;or

(2) Of a specialized or technical na-ture that requires considerable specialtraining, experience, and knowledge.

(c) Discretion and independent judg-ment test. The employee frequently ex-ercises discretion and independentjudgment, under only general super-vision, in performing the normal day-to-day work.

(d) 80-percent test. In addition to theprimary duty test that applies to allemployees, General Schedule employ-ees in positions properly classified atGS–5 or GS–6 (or the equivalent level inother comparable white-collar pay sys-tems) must spend 80 percent or more ofthe worktime in a representative work-week on administrative functions andwork that is an essential part of thosefunctions to meet the 80-percent test.

[62 FR 67247, Dec. 23, 1997; 63 FR 2304, Jan. 14,1998]

§ 551.207 Professional exemption cri-teria.

A professional employee is an em-ployee who meets all of the followingcriteria, or any teacher who is engagedin the imparting of knowledge or in theadministration of an academic pro-gram in a school system or educationalestablishment.

(a) Primary duty test. The primaryduty test is met if the employee’s workconsists of—

(1) Work that requires knowledge in afield of science or learning customarilyand characteristically acquiredthrough education or training thatmeets the requirements for a bach-elor’s or higher degree, with majorstudy in or pertinent to the specialized


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5 CFR Ch. I (1–1–02 Edition)§ 551.208

field as distinguished from general edu-cation; or is performing work, com-parable to that performed by profes-sional employees, on the basis of spe-cialized education or training and ex-perience which has provided both theo-retical and practical knowledge of thespecialty, including knowledge of re-lated disciplines and of new develop-ments in the field; or

(2) Work in a recognized field of ar-tistic endeavor that is original or cre-ative in nature (as distinguished fromwork which can be produced by a per-son endowed with general manual orintellectual ability and training) andthe result of which depends on the in-vention, imagination, or talent of theemployee; or

(3) Work that requires theoreticaland practical application of highly-spe-cialized knowledge in computer sys-tems analysis, programming, and soft-ware engineering or other similar workin the computer software field. Thework must consist of one or more ofthe following:

(i) The application of systems anal-ysis techniques and procedures, includ-ing consulting with users, to determinehardware, software, or system func-tional specifications; or

(ii) The design, development, docu-mentation, analysis, creation, testing,or modification of computer systems orprograms, including prototypes, basedon and related to user or system designspecifications; or

(iii) The design, documentation, test-ing, creation, or modification of com-puter programs related to machine op-erating systems; or

(iv) A combination of the duties de-scribed in paragraphs (a)(3)(i), (a)(3)(ii),and (a)(3)(iii) of this section, the per-formance of which requires the samelevel of skills.

(b) Intellectual and varied work test.The employee’s work is predominantlyintellectual and varied in nature, re-quiring creative, analytical, evalua-tive, or interpretative thought proc-esses for satisfactory performance.

(c) Discretion and independent judg-ment test. The employee frequently ex-ercises discretion and independentjudgment, under only general super-vision, in performing the normal day-to-day work.

(d) 80-percent test. In addition to theprimary duty test that applies to allemployees, General Schedule employ-ees in positions properly classified atGS–5 or GS–6 (or the equivalent level inother comparable white-collar pay sys-tems), must spend 80 percent or moreof the worktime in a representativeworkweek on professional functionsand work that is an essential part ofthose functions to meet the 80-percenttest.

§ 551.208 Effect of performing tem-porary work or duties on FLSA ex-emption status.

(a) Applicability.(1) When applicable. This section ap-

plies only when an employee must tem-porarily perform work or duties thatare not consistent with the primary orgrade-controlling duty of the employ-ee’s official position description. Theperiod of temporary work or dutiesmay or may not involve a different ge-ographic duty location. The FLSA ex-emption status of employees during aperiod of temporary work or dutiesmust be determined as described in thissection.

(2) When not applicable. This sectiondoes not apply when an employee is de-tailed to an identical additional posi-tion as the employee’s position or to aposition of the same grade, series code,basic duties, and FLSA exemption sta-tus as the employee’s position.

(b) Effect on nonexempt employees.(1) A nonexempt employee who must

temporarily perform work or dutiesthat are not consistent with the pri-mary or grade-controlling duty of theemployee’s official position descriptionremains nonexempt for the entire pe-riod of temporary work or duties un-less all three of the following condi-tions are met:

(i) 30-day test. The period of tem-porary work or duties exceeds 30 cal-endar days; and

(ii) Exempt work or duty. The employ-ee’s primary duty for the period oftemporary work or duties is exemptwork or duty as defined in this part;and

(iii) Positions at GS–7 or above, or atsituation 3 or 4. The employee’s position(including a position to which the em-ployee is temporarily promoted) is


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properly classified in the GeneralSchedule at GS–7 or above (or theequivalent level in other comparablewhite-collar pay systems) or properlyclassified in the Federal Wage Systemas a supervisor at situation 3 or 4 ofFactor I of the Federal Wage System JobGrading Standard for Supervisors (or theequivalent level in other comparablewage systems).

(2) If a nonexempt employee becomesexempt under the criteria in paragraph(b)(1) of this section—

(i) The employee must be consideredexempt for the entire period of tem-porary work or duties; and

(ii) If the employee received FLSAovertime pay for work performed dur-ing the first 30 calendar days of thetemporary work or duties, the agencymust recalculate the employee’s totalpay retroactive to the beginning ofthat period because the employee isnow not entitled to the FLSA overtimepay received but may be owed title 5overtime pay.

(c) Effect on exempt employees.(1) An exempt employee not covered

by the special provision of paragraph(c)(3) of this section who must tempo-rarily perform work or duties that arenot consistent with the primary orgrade-controlling duty of the employ-ee’s official position description re-mains exempt for the entire period oftemporary work or duties unless allthree of the following conditions aremet:

(i) 30-day test. The period of tem-porary work or duties exceeds 30 cal-endar days; and

(ii) Not exempt work or duty. The em-ployee’s primary duty for the period oftemporary work or duties is not exemptwork or duty as defined in this part;and

(iii) Positions at GS–7 or above, or atsituation 3 or 4. The employee’s position(including a position to which the em-ployee is temporarily promoted) isproperly classified in the GeneralSchedule at GS–7 or above (or theequivalent level in other comparablewhite-collar pay systems) or properlyclassified in the Federal Wage Systemas a supervisor at situation 3 or 4 ofFactor I of the Federal Wage System JobGrading Standard for Supervisors (or the

equivalent level in other comparablewage systems).

(2) If an exempt employee becomesnonexempt under the criteria in para-graph (c)(1) of this section—

(i) The employee must be considerednonexempt for the entire period oftemporary work or duties; and

(ii) If the employee received title 5overtime pay for work performed dur-ing the first 30 calendar days of thetemporary work or duties, the agencymust recalculate the employee’s totalpay retroactive to the beginning ofthat period because the employee maynow not be entitled to some or all ofthe title 5 overtime pay received butmay be owed FLSA overtime pay.

(3) Special provision for exempt employ-ees at GS–5 or GS–6, or below situation 3.The exemption status of certain ex-empt employees who must temporarilyperform work or duties that are notconsistent with the primary or grade-controlling duty of their official posi-tion description must be determined ona workweek basis for the period of tem-porary work or duties. Such employeesare exempt employees whose positions(including a position to which the em-ployee is temporarily promoted) areproperly classified in the GeneralSchedule at GS–5 or GS–6 (or the equiv-alent level in other comparable white-collar pay systems), or are properlyclassified in the Federal Wage Systembelow situation 3 of Factor I of theFederal Wage System Job Grading Stand-ard for Supervisors (or the equivalentlevel in other comparable wage sys-tems). The exemption status deter-mination of these employees will resultin the employee either remaining ex-empt or becoming nonexempt for thatworkweek, as described in paragraphs(c)(3)(i) and (c)(3)(ii) of this section.

(i) Remain exempt. An exempt em-ployee remains exempt for a givenworkweek only if the employee per-forms exempt work or duties for 80 per-cent or more of the worktime in thatworkweek.

(ii) Become nonexempt. An exempt em-ployee becomes nonexempt for a givenworkweek only if the employee per-forms nonexempt work or duties formore than 20 percent of the worktimein that workweek.


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5 CFR Ch. I (1–1–02 Edition)§ 551.209

(d) Emergency situation. Notwith-standing any other provisions of thissection, and regardless of an employ-ee’s grade level, the agency may deter-mine that an emergency situation ex-ists that directly threatens human lifeor safety, serious damage to property,or serious disruption to the operationsof an activity, and there is no recourseother than to assign qualified employ-ees to temporarily perform work or du-ties in connection with the emergency.In such a designated emergency—

(1) Nonexempt employee. The exemp-tion status of a nonexempt employeeremains nonexempt whether the em-ployee performs nonexempt work or ex-empt work during the emergency; and

(2) Exempt employee. The exemptionstatus of an exempt employee must bedetermined on a workweek basis. Theexemption status determination of ex-empt employees will result in the em-ployee either remaining exempt or be-coming nonexempt for that workweek,as described in paragraphs (d)(2)(i) and(d)(2)(ii) of this section.

(i) Remain exempt. An exempt em-ployee remains exempt for any work-week in which the employee performsexempt work or duties for 80 percent ormore of the worktime in a given work-week.

(ii) Become nonexempt. An exempt em-ployee becomes nonexempt for anyworkweek in which the employee per-forms nonexempt work or duties formore than 20 percent of the worktimein a given workweek.

[62 FR 67247, Dec. 23, 1997; 63 FR 2304, Jan. 14,1998]

§ 551.209 Foreign exemption criteria.(a) Application. When the foreign ex-

emption applies, the minimum wage,overtime, and child labor provisions ofthe Act do not apply to any employeewho spends all hours of work in a givenworkweek in an exempt area. When anemployee meets one of the two criteriain paragraph (b) of this section, the for-eign exemption applies until the em-ployee spends any hours of work in anynonexempt area as defined in § 551.102.

(b) Foreign exemption applies. If anemployee meets one of the two fol-lowing criteria, the employee is subjectto the foreign exemption of the Act andthe minimum wage, overtime, and

child labor provisions of the Act do notapply:

(1) The employee is permanently sta-tioned in an exempt area and spends allhours of work in a given workweek inone or more exempt areas; or

(2) The employee is not permanentlystationed in an exempt area, butspends all hours of work in a givenworkweek in one or more exemptareas.

(c) Foreign exemption does not apply.For any given workweek, the minimumwage, overtime, and child labor provi-sions of the Act apply to an employeepermanently stationed in an exemptarea who spends any hours of work inany nonexempt area. For that work-week, the employee is not subject tothe foreign exemption, and the agencymust determine the exemption statusof such an employee as described para-graphs (c)(1) and (c)(2) of this section.The foreign exemption does not resumeuntil the employee again meets one ofthe criteria in paragraph (b) of this sec-tion.

(1) Same duties. If the duties per-formed during that workweek are con-sistent with the primary or grade-con-trolling duties of the employee’s offi-cial position description, the agencymust designate the employee the sameFLSA exemption status as if the em-ployee were permanently stationed inany nonexempt area.

(2) Different duties. If the duties per-formed during that workweek are notconsistent with the primary or grade-controlling duties of the employee’s of-ficial position description—

(i) The agency must first designatethe employee the same FLSA exemp-tion status as the employee would havebeen designated based on the duties in-cluded in the employee’s official posi-tion description if the employee werepermanently stationed in any non-exempt area; and

(ii) The agency must determine theemployee’s exemption status for thatworkweek by applying § 551.208.

(d) Resumption of foreign exemption.When an employee returns to any ex-empt area from performing any hoursof work in any nonexempt area, theemployee is not subject to the foreignexemption until the employee meets


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one of the criteria in paragraph (b) ofthis section.

§ 551.210 Exemption of employees re-ceiving availability pay.

The following employees are exemptfrom the hours of work and overtimepay provisions of the Act:

(a) A criminal investigator receivingavailability pay under § 550.181 of thischapter; and

(b) A pilot employed by the UnitedStates Customs Service who is a lawenforcement officer as defined in sec-tion 5541(3) of title 5, United StatesCode, and who receives availability payunder section 5545a(i) of title 5, UnitedStates Code.

§ 551.211 Statutory exclusion.

A customs officer who receives over-time pay under subsection (a) or pre-mium pay under subsection (b) of sec-tion 267 of title 19, United States Code,for time worked may not receive pay orother compensation for that workunder any other provision of law. Asused in section 5, the term ‘‘customsofficer’’ means a United States Cus-toms Service supervisory or non-supervisory customs inspector or a su-pervisory or nonsupervisory canine en-forcement officer.

Subpart C—Minimum WageProvisions

BASIC PROVISION

§ 551.301 Minimum wage.

(a)(1) Except as provided in para-graph (a)(2) of this section and § 551.311,an agency shall pay each of its employ-ees wages at rates not less than theminimum wage specified in section6(a)(1) of the Act for all hours of workas defined in subpart D of this part.

(2) The minimum wage provisions ofthe Act do not apply to a criminal in-vestigator receiving availability payunder § 550.181.

(b) An employee has been paid incompliance with the minimum wageprovisions of this subpart if the em-ployee’s hourly regular rate of pay, asdefined in § 551.511(a) of this part, forthe workweek is equal to or in excess

of the rate specified in section 6(a)(1) ofthe Act.

[45 FR 85664, Dec. 30, 1980, as amended at 59FR 66154, Dec. 23, 1994]

SUBMINIMUM WAGE

§ 551.311 Subminimum wage.

An agency may, if it meets certaincriteria published by the Office of Per-sonnel Management, employ certaingroups of less than fully productiveemployees (e.g., handicapped patientworkers) at rates less than the min-imum wage specified in section 6(a)(1)of the Act.

[45 FR 85664, Dec. 30, 1980]

Subpart D—Hours of Work


GENERAL PROVISIONS

§ 551.401 Basic principles.

(a) All time spent by an employeeperforming an activity for the benefitof an agency and under the control ordirection of the agency is ‘‘hours ofwork.’’ Such time includes:

(1) Time during which an employee isrequired to be on duty;

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

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

(b) For an employee, as defined in 5U.S.C. 5541(2), hours in a paid nonworkstatus (e.g., paid leave, holidays, com-pensatory time off, or excused ab-sences) are ‘‘hours of work’’ under thispart.

(c) Hours in an unpaid nonwork sta-tus (e.g., leave without pay, furlough,absence without leave) are not ‘‘hoursof work’’ under this part.

(d) Time that is considered hours ofwork under this part shall be used onlyto determine an employee’s entitle-ment to minimum wages or overtimepay under the Act, and shall not beused to determine hours of work forpay administration under title 5,United States Code, or any other au-thority.


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5 CFR Ch. I (1–1–02 Edition)§ 551.402

(e) Irregular or occasional overtimework performed by an employee on aday on which work was not scheduledfor that employee or for which the em-ployee is required to return to his orher place of employment is deemed atleast 2 hours in duration for the pur-pose of determining whether the em-ployee may be entitled to overtime payunder this part, either in money orcompensatory time off.

(f) For the purpose of determininghours of work in excess of 8 hours in aday under this part, agencies shallcredit hours of work under § 410.402 ofthis chapter, part 532 of this chapterand 5 U.S.C. 5544, and part 550 of thischapter, as applicable.

(g) For the purpose of determininghours of work in excess of 40 hours in aweek or in excess of another applicableovertime work standard under section7(k) of the Fair Labor Standards Act,agencies shall credit hours of workunder § 410.402 of this chapter, part 532of this chapter and 5 U.S.C. 5544, andpart 550 of this chapter, as applicable,that will not be compensated as hoursof work in excess of 8 hours in a day, aswell as any additional hours of workunder this part.

(h) For the purpose of determiningovertime pay for work in excess of 40hours in a workweek under this part,time spent in a travel status is hours ofwork as provided in § 551.422 of this partand § 550.112(g) of this chapter or 5U.S.C. 5544, as applicable.

[45 FR 85664, Dec. 30, 1980, as amended at 52FR 47687, Dec. 16, 1987, and 53 FR 27147, July19, 1988; 56 FR 20343, May 3, 1991; 57 FR 59279,Dec. 15, 1992; 64 FR 69180, Dec. 10, 1999]

§ 551.402 Agency responsibility.(a) An agency is responsible for exer-

cising appropriate controls to assurethat only that work for which it in-tends to make payment is performed.

(b) An agency shall keep completeand accurate records of all hoursworked by its employees.

APPLICATION OF PRINCIPLES INRELATION TO NORMAL WORKDAY

§ 551.411 Workday.(a) For the purposes of this part,

workday means the period between thecommencement of the principal activi-

ties that an employee is engaged toperform on a given day, and the ces-sation of the principal activities forthat day. All time spent by an em-ployee in the performance of such ac-tivities is hours of work. The workdayis not limited to a calendar day or anyother 24-hour period.

(b) Any rest period authorized by anagency that does not exeed 20 minutesand that is within the workday shall beconsidered hours of work.

(c) Bona fide meal periods shall notbe considered hours of work, except foremployees engaged in fire protection orlaw enforcement activities who receivecompensation for overtime hours ofwork under 5 U.S.C. 5545(c) (1) or (2).However, for employees engaged in fireprotection or law enforcement activi-ties who have periods of duty of morethan 24 hours, meal periods may be ex-cluded from hours of work by agree-ment between the employer and theemployee.

[45 FR 85664, Dec. 30, 1980, as amended at 48FR 36805, Aug. 15, 1983; 57 FR 59279, Dec. 15,1992]

§ 551.412 Preparatory or concludingactivities.

(a) (1) If an agency reasonably deter-mines that a preparatory or concludingactivity is closely related to an em-ployee’s principal activities, and is in-dispensable to the performance of theprincipal activities, and that the totaltime spent in that activity is morethan 10 minutes per workday, the agen-cy shall credit all of the time spent inthat activity, including the 10 minutes,as hours of work.

(2) If the time spent in a preparatoryor concluding activity is compensableas hours of work, the agency shallschedule the time period for the em-ployee to perform that activity. Anemployee shall be credited with the ac-tual time spent in that activity duringthe time period scheduled by the agen-cy. In no case shall the time creditedfor the performance of an activity ex-ceed the time scheduled by the agency.The employee shall be credited for thetime spent performing preparatory orconcluding activities in accordancewith paragraph (b) of §551.521 of thispart.


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(b) A preparatory or concluding ac-tivity that is not closely related to theperformance of the principal activitiesis considered a preliminary orpostliminary activity. Time spent inpreliminary or postliminary activitiesis excluded from hours of work and isnot compensable, even if it occurs be-tween periods of activity that are com-pensable as hours of work.

[48 FR 36805, Aug. 15, 1983]

APPLICATION OF PRINCIPLES INRELATION TO OTHER ACTIVITIES

§ 551.421 Regular working hours.(a) Under the Act there is no require-

ment that a Federal employee have aregularly scheduled administrativeworkweek. However, under title 5United States Code, and part 610 of thischapter, the head of an agency is re-quired to establish work schedules forhis or her employees. In determiningwhat activities constitute hours ofwork under the Act, there is generallya distinction based on whether the ac-tivity is performed by an employeeduring regular working hours or out-side regular working hours. For pur-poses of this part, ‘‘regular workinghours’’ means the days and hours of anemployee’s regularly scheduled admin-istrative workweek established underpart 610 of this chapter.

[45 FR 85664, Dec. 30, 1980, as amended at 48FR 36806, Aug. 15, 1983]

§ 551.422 Time spent traveling.(a) Time spent traveling shall be con-

sidered hours of work if:(1) An employee is required to travel

during regular working hours;(2) An employee is required to drive a

vehicle or perform other work whiletraveling;

(3) An employee is required to travelas a passenger on a one-day assignmentaway from the official duty station; or

(4) An employee is required to travelas a passenger on an overnight assign-ment away from the official duty sta-tion during hours on nonworkdays thatcorrespond to the employee’s regularworking hours.

(b) An employee who travels fromhome before the regular workday be-gins and returns home at the end of the

workday is engaged in normal ‘‘hometo work’’ travel; such travel is nothours of work. When an employee trav-els directly from home to a temporaryduty location outside the limits of hisor her official duty station, the timethe employee would have spent in nor-mal home to work travel shall be de-ducted from hours of work as specifiedin paragraphs (a)(2) and (a)(3) of thissection.

(c) An employee who is offered onemode of transportation, and who is per-mitted to use an alternative mode oftransportation, or an employee whotravels at a time other than that se-lected by the agency, shall be creditedwith the lesser of:

(1) The actual travel time which ishours of work under this section; or

(2) The estimated travel time whichwould have been considered hours ofwork under this section had the em-ployee used the mode of transportationoffered by the agency, or traveled atthe time selected by the agency.

(d) Except as provided in paragraph(b) of this section, an agency may pre-scribe a mileage radius of not greaterthan 50 miles to determine whether anemployee’s travel is within or outsidethe limits of the employee’s officialduty station for determining entitle-ment to overtime pay for travel underthis part. However, an agency’s defini-tion of an employee’s official duty sta-tion for determining overtime pay fortravel may not be smaller than the def-inition of ‘‘official station and post ofduty’’ under the Federal Travel Regu-lation issued by the General ServicesAdministration (41 CFR 301–1.3(c)(4)).


§ 551.423 Time spent in training or at-tending a lecture, meeting, or con-ference.

(a) Time spent in training, whetheror not it is under the purview of part410 of this chapter, shall be adminis-tered as follows:

(1) Time spent in training during reg-ular working hours shall be consideredhours of work.

(2) Time spent in training outsideregular working hours shall be consid-ered hours of work if:


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5 CFR Ch. I (1–1–02 Edition)§ 551.424

(i) The employee is directed to par-ticipate in the training by his or heremploying agency; and

(ii) The purpose of the training is toimprove the employee’s performance ofthe duties and responsibilities of his orher current position.

(3) Time spent in apprenticeship orother entry level training, or intern-ship or other career related work studytraining, or training under the Vet-erans Readjustment Act (5 CFR part307) outside regular working hoursshall not be considered hours of work,provided no productive work is per-formed during such periods, except asprovided by § 410.402(b) of this chapterand paragraphs (f) and (g) of § 551.401.

(4) Time spent by an employee per-forming work for the agency during aperiod of training shall be consideredhours of work.

(b) The following phrases containedin paragraph (a) of this section, are fur-ther clarified:

(1) Directed to participate means thatthe training is required by the agencyand the employee’s performance orcontinued retention in his or her cur-rent position will be adversely affectedby nonenrollment in such training. Thefact that an agency pays for all or partof the expenses of training does notcreate an entitlement to overtimehours of work unless participation inthe training is directed by the agency.

(2) Training ‘‘to improve the employ-ee’s performance * * * of his or her cur-rent position’’ is distinguished fromupward mobility training or develop-mental training to provide an em-ployee the knowledge or skills neededfor a subsequent position in the samecareer field.

(c) Time spent by an employee withinan agency’s allowance of preparatorytime for attendance at training shallbe considered hours of work if such pre-paratory time is:

(1) During an employee’s regularworking hours; or

(2) Outside the employee’s regularworking hours, and the purpose of thetraining meets the requirements ofparagraph (a)(2) of this section.

(d) Time spent attending a lecture,meeting, or conference shall be consid-ered hours of work if attendance is:

(1) During an employee’s regularworking hours; or

(2) Outside an employee’s regularworking hours, and

(i) The employee is directed by anagency to attend such an event; or

(ii) The employee performs work forthe benefit of the agency during suchattendance.


§ 551.424 Time spent adjusting griev-ances or performing representa-tional functions.

(a) Time spent by an employee ad-justing his or her grievance (or any ap-pealable action) with an agency duringthe time the employee is required to beon the agency’s premises shall be con-sidered hours of work.

(b) ‘‘Official time’’ granted an em-ployee by an agency to perform rep-resentational functions during thosehours when the employee is otherwisein a duty status shall be consideredhours of work. This includes time spentby an employee performing such func-tions during regular working hours (in-cluding regularly scheduled overtimehours), or during a period of irregular,unscheduled overtime work, providedan event arises incident to representa-tional functions that must be dealtwith during the irregular, unscheduledovertime period.

§ 551.425 Time spent receiving medicalattention.

(a) Time spent waiting for and receiv-ing medical attention for illness or in-jury shall be considered hours of workif:

(1) The medical attention is requiredon a workday an employee reported forduty and subsequently became ill orwas injured;

(2) The time spent receiving medicalattention occurs during the employee’sregular working hours; and

(3) The employee receives the med-ical attention on the agency’s prem-ises, or at the direction of the agencyat a medical facility away from theagency’s premises.

(b) Time spent taking a physical ex-amination that is required for the em-ployee’s continued employment with


577


the agency shall be considered hours ofwork.

§ 551.426 Time spent in charitable ac-tivities.

Time spent working for public orcharitable purposes at an agency’s re-quest, or under an agency’s directionor control, shall be considered hours ofwork. However, time spent voluntarilyin such activities outside an employ-ee’s regular working hours is not hoursof work.

SPECIAL SITUATIONS

§ 551.431 Time spent on standby dutyor in an on-call status.

(a)(1) An employee is on duty, andtime spent on standby duty is hours ofwork if, for work-related reasons, theemployee is restricted by official orderto a designated post of duty and is as-signed to be in a state of readiness toperform work with limitations on theemployee’s activities so substantialthat the employee cannot use the timeeffectively for his or her own purposes.A finding that an employee’s activitiesare substantially limited may not bebased on the fact that an employee issubject to restrictions necessary to en-sure that the employee will be able toperform his or her duties and respon-sibilities, such as restrictions on alco-hol consumption or use of certainmedications.

(2) An employee is not considered re-stricted for ‘‘work-related reasons’’ if,for example, the employee remains atthe post of duty voluntarily, or if therestriction is a natural result of geo-graphic isolation or the fact that theemployee resides on the agency’s prem-ises. For example, in the case of an em-ployee assigned to work in a remotewildland area or on a ship, the factthat the employee has limited mobilitywhen relieved from duty would not be abasis for finding that the employee isrestricted for work-related reasons.

(b) An employee will be consideredoff duty and time spent in an on-callstatus shall not be considered hours ofwork if:

(1) The employee is allowed to leavea telephone number or to carry an elec-tronic device for the purpose of beingcontacted, even though the employee is

required to remain within a reasonablecall-back radius; or

(2) The employee is allowed to makearrangements such that any workwhich may arise during the on-call pe-riod will be performed by another per-son.


§ 551.432 Sleep time.(a) Except as provided in paragraph

(b) of this section, bona fide sleep timethat fulfills the following conditionsshall not be considered hours of workif:

(1) The work shift is 24 hours or more;(2) During such time there are ade-

quate facilities such that an employeemay usually enjoy an uninterruptedperiod of sleep; and

(3) There are at least 5 hours avail-able for such time during the sleep pe-riod.

(b) For employees engaged in law en-forcement or fire protection activitieswho receive annual premium pay under5 U.S.C. 5545(c)(1) or (2), the require-ments of paragraph (a) of this sectionapply, except that on-duty sleep timemay be excluded from hours of workonly if the work shift is more than 24hours.

(c) The total amount of bona fidesleep and meal time that may be ex-cluded from hours of work may not ex-ceed 8 hours in a 24-hour period.

(d) If sleep time is interrupted by acall to duty, the time spent on duty isconsidered hours of work.

(e) On-duty sleep and meal time dur-ing regularly scheduled hours for whichstandby duty premium pay under 5U.S.C. 5545(c)(1) is payable may not beexcluded from hours of work.

(f) For firefighters compensatedunder 5 U.S.C. 5545b, on-duty sleep andmeal time may not be excluded fromhours of work.

[45 FR 85664, Dec. 30, 1980, as amended at 57FR 59279, Dec. 15, 1992; 64 FR 69180, Dec. 10,1999]

Subpart E—Overtime PayProvisions



578

5 CFR Ch. I (1–1–02 Edition)§ 551.501

BASIC PROVISIONS

§ 551.501 Overtime pay.(a) An agency shall compensate an

employee who is not exempt under sub-part B of this part for all hours of workin excess of 8 in a day or 40 in a work-week at a rate equal to one and one-half times the employee’s hourly reg-ular rate of pay, except that an em-ployee shall not receive overtime com-pensation under this part—

(1) On the basis of periods of duty inexcess of 8 hours in a day when the em-ployee receives compensation for thatduty under 5 U.S.C. 5545(c)(1) or (2) or5545b;

(2) On the basis of hours of work inexcess of 8 hours in a day that are notovertime hours of work under § 410.402of this chapter, part 532 of this chapterand 5 U.S.C. 5544, or part 550 of thischapter;

(3) On the basis of hours of work inexcess of 8 hours in a day for an em-ployee covered by 5 U.S.C. 5544 for anyhours in a standby or on-call status orwhile sleeping or eating;

(4) On the basis of hours of work inexcess of 8 hours in a day for an indi-vidual who is not an employee, as de-fined in 5 U.S.C. 5541(2), for purposes of5 U.S.C. 5542, 5543, and 5544;

(5) On the basis of hours of work inexcess of 40 hours in a workweek for anemployee engaged in fire protection orlaw enforcement activities when theemployee is receiving compensationunder 5 U.S.C. 5545(c)(1) or (2) or 5545b,or is not an employee (as defined in 5U.S.C. 5541(2)) for the purposes of 5U.S.C. 5542, 5543, and 5544;

(6) For hours of work that are not‘‘overtime hours,’’ as defined in 5U.S.C. 6121, for employees under flexi-ble or compressed work schedules;

(7) For hours of work compensated bycompensatory time off under § 551.531 ofthis part; and

(8) For fractional hours of work, ex-cept as provided in § 551.521 of this part.

(b) An employee’s ‘‘workweek’’ is afixed and recurring period of 168hours—seven consecutive 24-hour peri-ods. It need not coincide with the cal-endar week but may begin on any dayand at any hour of a day. For employ-ees subject to part 610 of this chapter,the workweek shall be the same as the

administrative workweek defined in§ 610.102 of this chapter.

(c) In this subpart, ‘‘irregular or oc-casional overtime work’’ is overtimework that is not scheduled in advanceof the employee’s workweek.

(d) The maximum earnings limita-tions described in §§ 550.105, 550.106, and550.107 of this chapter do not apply toovertime pay due the employee underthis subpart.

[45 FR 85665, Dec 30, 1980, as amended at 56FR 11060, Mar. 15, 1991; 56 FR 20343, May 3,1991; 57 FR 59279, Dec. 15, 1992; 63 FR 64594,Nov. 23, 1998; 64 FR 69180, Dec. 10, 1999]

OVERTIME PAY COMPUTATIONS

§ 551.511 Hourly regular rate of pay.(a) An employee’s ‘‘hourly regular

rate’’ is computed by dividing the totalremuneration paid to an employee inthe workweek by the total number ofhours of work in the workweek forwhich such compensation was paid.

(b) ‘‘Total remuneration’’ includes allremuneration for employment paid to,or on behalf of, an employee except:

(1) Payments as rewards for servicethe amount of which is not measuredby or dependent on hours of work, pro-duction, or efficiency (e.g., a cashaward for a suggestion made by an em-ployee and adopted by an agency);

(2) Reimbursements for travel ex-penses, or other similar expenses, in-curred by an employee in furtheranceof an agency’s interest, which are notrelated to hours of work;

(3) Payments made in recognition ofservices performed during a given pe-riod, if both the fact that payment isto be made and the amount of the pay-ment are determined at the sole discre-tion of the agency (i.e., discretionarycash awards or bonuses);

(4) Contributions by an agency to afund for retirement, insurance, or simi-lar benefits;

(5) Extra compensation provided by apremium rate paid for hours of workperformed by an employee in excess ofeight in a day, or in excess of the nor-mal workweek applicable to the em-ployee;

(6) Extra compensation provided by apremium rate paid for hours of workperformed by an employee on a Sundayor a holiday where such premium rate


579


is at least one and one-half times theemployee’s rate of pay for work per-formed in nonovertime hours on otherdays; or

(7) Extra compensation provided by apremium rate paid for hours of workperformed by an employee outside hisor her regular working hours, wheresuch premium rate is at least one andone-half times the employee’s rate ofpay for work performed in nonovertimehours.

[45 FR 85665, Dec. 30, 1980, as amended at 52FR 47688, Dec. 16, 1987, and 53 FR 27147, July19, 1988; 56 20343, May 3, 1991; 64 FR 69180, Dec.10, 1999]

§ 551.512 Overtime pay entitlement.(a) An employee’s overtime entitle-

ment under this subpart includes:(1) The straight time rate of pay

times all overtime hours worked; plus(2) One-half times the employee’s

hourly regular rate of pay times allovertime hours worked.

(b) An employee’s ‘‘straight time rateof pay’’ is equal to the employee’s rateof pay for his or her position (exclusiveof any premiums, differentials, or cashawards or bonuses); except for an em-ployee who is authorized annual pre-mium pay under § 550.141 or § 550.151 ofthis chapter. For an employee who isauthorized annual premium pay,straight time rate of pay is equal tobasic pay plus annual premium pay di-vided by the hours for which the basicpay plus annual premium pay are in-tended.

(c) An employee has been paid incompliance with the overtime pay pro-visions of this subpart only if the em-ployee has received pay at a rate atleast equal to the employee’s straighttime rate of pay for all nonovertimehours of work in the workweek.


§ 551.513 Entitlement to other forms ofpay.

Overtime pay under this subpartshall be paid in addition to all pay,other than overtime pay, to which theemployee is entitled under title 5,United States Code, or any other au-thority. An employee entitled to over-time pay under this subpart and over-time pay under any authority outside

of title 5, United States Code, shall bepaid under whichever authority pro-vides the greater overtime pay entitle-ment in the workweek.

[57 FR 59280, Dec. 15, 1992]

§ 551.514 Nondiscretionary bonuses.(a) When an employee earns a nondis-

cretionary cash award or bonus (as op-posed to discretionary cash awards orbonuses as described in § 551.511(b)(3)),the bonus must be taken into accountin determining overtime pay for the pe-riod of time during which the bonuswas earned. An agency may meet theovertime pay requirements for thebonus period by using one of the proce-dures described in paragraphs (b) and(c) of this section. The procedures inparagraphs (b)(1) and (b)(2) of this sec-tion calculate the additional overtimepay the employee is due. The proce-dures in paragraphs (b)(3), (c)(2), and(c)(3) of this section describe methodswhere the overtime pay requirementsare met in the calculation or distribu-tion of the bonus itself.

(b) Individual computation methods.(1) Week-by-week recomputation method.The agency may compute the addi-tional overtime pay owed an employeeby allocating the nondiscretionarybonus payable under the agency bonusplan to the weeks or hours duringwhich it was earned and recomputingthe employee’s total remuneration,hourly regular rate, and overtime payfor each applicable workweek in thebonus period.

(2) Bonus hourly rate method. Theagency may assume that an equalamount of the nondiscretionary bonusapplies to each hour worked during thebonus period and derive a bonus hourlyrate by dividing the employee’s totalbonus by the total number of hoursworked by the employee during thebonus period. Then the agency maycompute the employee’s additionalovertime pay by multiplying one-halfof that bonus hourly rate by the totalnumber of overtime hours worked bythe employee during the bonus period.

(3) Percentage bonus method. An agen-cy may establish a nondiscretionarybonus as a fixed percentage of total pay(i.e., pre-bonus total remuneration, in-cluding straight time pay for any over-time hours, plus any half-rate overtime


580

5 CFR Ch. I (1–1–02 Edition)§ 551.521

pay under § 551.512(a)(2)) to be earnedby the employee during a future periodof service. This method may not beused to circumvent any bonus limita-tions that might otherwise apply. Atthe agency’s discretion, the portion ofthe bonus attributable to the employ-ee’s half-rate overtime pay under§ 551.512(a)(2) may be excluded in apply-ing bonus limitations, since it can beviewed as constituting additionalFLSA overtime pay. (This method doesnot apply to nondiscretionary bonusesestablished as a percentage of a seg-ment of pay, such as ratings-based cashawards under § 451.104(g) of this chapterthat are expressed as a percentage ofbasic pay, excluding locality adjust-ments. To meet overtime pay require-ments for these types of bonuses, useone of the methods described in para-graphs (b)(1) or (b)(2) of this section.)

(c) Group-based bonus distributionmethods. (1) For employees who haveearned nondiscretionary group cashawards or bonuses, payment of a bonusunder one of the methods of distribu-tion described in paragraphs (c)(2) and(c)(3) of this section is considered to bein full compliance with the overtimepay requirements of this subpart.These methods may not be used to cir-cumvent any bonus limitations thatmight otherwise apply.

(2) Percentage method. (i) Identify theamount of the group bonus under theagency’s bonus plan and the period oftime during which it was earned;

(ii) Establish the group bonus as apercentage of the total pay (i.e., totalremuneration before considering thegroup bonus, including straight timepay for any overtime hours, plus anyhalf-rate overtime pay under§ 551.512(a)(2)) earned by employees inthe group during the bonus period; and(iii) Multiply the percentage in para-graph (c)(2)(ii) of this section timeseach individual employee’s total payearned during the bonus period to de-termine each employee’s share of thegroup bonus.

(3) Boosted hour method. (i) Identifythe amount of the group bonus underthe agency’s bonus plan and the periodof time during which it was earned;

(ii) Determine the total number ofboosted hours for all employees underthe group bonus plan by adding up the

total number of hours of work by thoseemployees (nonovertime and overtimehours) and increasing that sum by one-half of the total number of overtimehours;

(iii) Divide the amount of the groupbonus by the total number of boostedhours for all employees under thegroup bonus plan to determine theamount of the bonus allocable to eachhour; and (iv) Multiply this hourlybonus amount by the number of boost-ed hours credited to each individualemployee in the bonus period to deter-mine each employee’s share of thegroup bonus.

[64 FR 69181, Dec. 10, 1999]

FRACTIONAL HOURS OF WORK

§ 551.521 Fractional hours of work.

(a) An employee shall be com-pensated for every minute of regularovertime work.

(b) A quarter of an hour shall be thelargest fraction of an hour used forcrediting irregular or occasional over-time work under this subpart. When ir-regular or occasional overtime work isperformed in other than the full frac-tion, odd minutes shall be rounded upor rounded down to the nearest fullfraction of an hour used to credit over-time work.

[48 FR 36806, Aug. 15, 1983]

COMPENSATORY TIME OFF

§ 551.531 Compensatory time off.

(a) At the request of an employeewho is not exempt under subpart B ofthis part, the head of an agency (ordesignee) may grant compensatorytime off from an employee’s tour ofduty instead of payment under § 551.501for an equal amount of irregular or oc-casional overtime work.

(b) At the request of an employee, asdefined in 5 U.S.C. 2105, the head of anagency may grant compensatory timeoff from an employee’s basic work re-quirement under a flexible work sched-ule under 5 U.S.C. 6122 instead of pay-ment under § 551.501 of this part for anequal amount of overtime work, wheth-er or not irregular or occasional in na-ture.


581


(c) An agency may not require thatan employee be compensated for over-time work under this subpart with anequivalent amount of compensatorytime off from the employee’s tour ofduty. An employee may not directly orindirectly intimidate, threaten, or co-erce, or attempt to intimidate, threat-en, or coerce any other employee forthe purpose of interfering with suchemployee’s rights to request or not torequest compensatory time off in lieuof payment for overtime hours.

(d) The head of an agency may fixtime limits for an employee to requestand take compensatory time off underthis section. If compensatory time offis not requested or taken within the es-tablished time limits, the employeemust be paid for overtime work at theovertime rate in effect for the work pe-riod in which it was earned under thissubpart.

(e) The dollar value of compensatorytime off when it is liquidated, or forthe purpose of applying pay limita-tions, is the amount of overtime paythe employee otherwise would have re-ceived for the hours of the pay periodduring which compensatory time offwas earned by performing overtimework.

[56 FR 20343, May 3, 1991, as amended at 62FR 28307, May 23, 1997; 64 FR 69181, Dec. 10,1999]

SPECIAL OVERTIME PAY PROVISIONS

§ 551.541 Employees engaged in fireprotection activities or law enforce-ment activities.

(a) An employee engaged in fire pro-tection activities or law enforcementactivities shall be paid at a rate equalto one and one-half times the employ-ee’s hourly regular rate of pay forthose hours in a tour of duty which ex-ceed the overtime standard for a workperiod specified in section 7(k) of theAct or which are in excess of 40 hoursin a workweek for such an employeewho does not receive compensation forthose hours of work under 5 U.S.C. 5545(c)(1) or (c)(2) or 5545b.

(b) The ‘‘tour of duty’’ of an em-ployee engaged in these activities shallinclude all time the employee is onduty. Meal periods and sleep periodsare included in the tour of duty except

as otherwise provided in §§ 551.411(c)and 551.432(b) of this part.

(c) Each agency shall establish the‘‘work period’’ to be used for applica-tion of section 7(k) of the Act. Thework period shall be at least sevendays and not more than 28 days.

(d) A firefighter subject to section7(k) of the Act who is compensatedunder part 550, subpart M, of this chap-ter is deemed to be appropriately com-pensated under section 7(k) of the Actand this part if the requirements of§ 550.1304(a) of this chapter are satis-fied. (See 5 U.S.C. 5545b(d)(2).)

[45 FR 85665, Dec. 30, 1980, as amended at 57FR 59280, Dec. 15, 1992; 63 FR 64595, Nov. 23,1998; 64 FR 69181, Dec. 10, 1999]

Subpart F—Child Labor


§ 551.601 Minimum age standards.(a) 16-year minimum age. The Act, in

section 3(l), sets a general 16-year min-imum age, which applies to all employ-ment subject to its child labor provi-sions, with certain exceptions not ap-plicable here.

(b) 18-year minimum age. The Act, insection 3(l), also sets an 18-year min-imum age with respect to employmentin any occupation found and declaredby the Secretary of Labor to be par-ticularly hazardous for the employ-ment of minors of such age or detri-mental to their health or well-being.

§ 551.602 Responsibilities.(a) Agencies must remain cognizant of

and abide by regulations and orderspublished in part 570 of title 29, Code ofFederal Regulations, by the Secretaryof Labor regarding the employment ofindividuals under the age of 18 years.These regulations and orders governthe minimum age at which personsunder the age of 18 years may be em-ployed and the occupations in whichthey may be employed. Persons underthe age of 18 years must not be em-ployed in occupations or engage inwork deemed hazardous by the Sec-retary of Labor.

(b) OPM will decide complaints con-cerning the employment of persons


582

5 CFR Ch. I (1–1–02 Edition)§ 551.701

under the age of 18 years. Complaintsmust be filed following the proceduresset forth in subpart G of this part.

Subpart G—FLSA Claims andCompliance


§ 551.701 Applicability.(a) Applicable. This subpart applies to

FLSA exemption status determinationclaims, FLSA pay claims for minimumwage or overtime pay for work per-formed under the Act, and complaintsarising under the child labor provisionsof the Act.

(b) Not applicable. This subpart doesnot apply to claims or complaints aris-ing under the equal pay provisions ofthe Act. The equal pay provisions ofthe Act are administered by the EqualEmployment Opportunity Commission.

§ 551.702 Time limits.(a) Claims. A claimant may at any

time file a complaint under the childlabor provisions of the Act or an FLSAclaim challenging the correctness ofhis or her FLSA exemption status de-termination. A claimant may also filean FLSA claim concerning his or herentitlement to minimum wage or over-time pay for work performed under theAct; however, time limits apply toFLSA pay claims. All FLSA pay claimsfiled on or after June 30, 1994, are sub-ject to a 2-year statute of limitations(3 years for willful violations).

(b) Statute of limitations. An FLSApay claim filed on or after June 30,1994, is subject to the statute of limita-tions contained in the Portal-to-PortalAct of 1947, as amended (section 255a oftitle 29, United States Code), which im-poses a 2-year statute of limitations,except in cases of a willful violationwhere the statute of limitations is 3years. In deciding a claim, a deter-mination must be made as to whetherthe cause or basis of the claim was theresult of a willful violation on the partof the agency.

(c) Preserving the claim period. Aclaimant or a claimant’s designatedrepresentative may preserve the claimperiod by submitting a written claimeither to the agency employing the

claimant during the claim period or toOPM. The date the agency or OPM re-ceives the claim is the date that deter-mines the period of possible entitle-ment to back pay. The claimant is re-sponsible for proving when the claimwas received by the agency or OPM.The claimant should retain documenta-tion to establish when the claim wasreceived by the agency or OPM, such asby filing the claim using certified, re-turn receipt mail, or by requestingthat the agency or OPM provide writ-ten acknowledgment of receipt of theclaim. If a claim for back pay is estab-lished, the claimant will be entitled topay for a period of up to 2 years (3years for a willful violation) back fromthe date the claim was received.

§ 551.703 Avenues of review.(a) Negotiated grievance procedure

(NGP) as exclusive administrative remedy.If at any time during the claim period,a claimant was a member of a bar-gaining unit covered by a collectivebargaining agreement that did not spe-cifically exclude matters under the Actfrom the scope of the negotiated griev-ance procedure, the claimant must usethat negotiated grievance procedure asthe exclusive administrative remedy forall claims under the Act. There is noright to further administrative reviewby the agency or by OPM. The remain-ing sections in this subpart (that is,§§ 551.704 through 551.710) do not applyto such employees.

(b) Non-NGP administrative review byagency or OPM. A claimant may file aclaim with the agency employing theclaimant during the claim period orwith OPM, but not both simulta-neously, regarding matters arisingunder the Act if, during the entireclaim period, the claimant—

(1) Was not a member of a bargainingunit, or

(2) Was a member of a bargainingunit not covered by a collective bar-gaining agreement, or

(3) Was a member of a bargainingunit covered by a collective bargainingagreement that specifically excludedmatters under the Act from the scopeof the negotiated grievance procedure.

(c) Judicial review. Nothing in thissubpart limits the right of a claimantto bring an action in an appropriate


583


United States court. Filing a claimwith an agency or with OPM does notsatisfy the statute of limitations gov-erning FLSA claims filed in court.OPM will not decide an FLSA claimthat is in litigation.

§ 551.704 Claimant’s representative.A claimant may designate a rep-

resentative to assist in preparing orpresenting a claim. The claimant mustdesignate the representative in writ-ing. A representative may not partici-pate in OPM interviews unless specifi-cally requested to do so by OPM. Anagency may disallow a claimant’s rep-resentative who is a Federal employeein any of the following circumstances:

(a) When the individual’s activitiesas a representative would cause a con-flict of interest or position;

(b) When the designated representa-tive cannot be released from his or herofficial duties because of the priorityneeds of the Government; or

(c) When the release of the des-ignated representative would give riseto unreasonable costs to the Govern-ment.

§ 551.705 Filing an FLSA claim.(a) Filing an FLSA claim. A claimant

may file an FLSA claim with eitherthe agency employing the claimantduring the claim period or with OPM,but a claimant cannot pursue the sameclaim with both at the same time. OPMencourages a claimant to obtain a deci-sion on the claim from the agency be-fore filing the claim with OPM. How-ever, a claimant is not required to dothis. This a matter of personal discre-tion and a claimant may use either av-enue. A claimant who receives an unfa-vorable decision on a claim from theagency may still file the claim withOPM. However, a claimant may not filethe claim with the agency after receiv-ing an unfavorable decision from OPM.An OPM decision on a claim is finaland is not subject to further adminis-trative review.

(b) FLSA claim filed with agency. AnFLSA claim filed with an agencyshould be made according to appro-priate agency procedures. At the re-quest of the claimant, the agency mayforward the claim to OPM on theclaimant’s behalf. The claimant is re-

sponsible for ensuring that OPM re-ceives all the information requested inparagraph (b) of this section.

(c) FLSA claim filed with OPM. AnFLSA claim filed with OPM must bemade in writing and must be signed bythe claimant or the claimant’s rep-resentative. Relevant information maybe submitted to OPM at any time fol-lowing the initial submission of aclaim to OPM and prior to OPM’s deci-sion on the claim. The claim must in-clude the following:

(1) The identity of the claimant (see§ 551.706(a)(2) regarding requesting con-fidentiality) and any designated rep-resentative, the agency employing theclaimant during the claim period, theposition (job title, series, and grade)occupied by the claimant during theclaim period, and the current mailingaddress, commercial telephone number,and facsimile machine number, ifavailable, of the claimant and any des-ignated representative;

(2) A description of the nature of theclaim and the specific issues or inci-dents giving rise to the claim, includ-ing the time period covered by theclaim;

(3) A description of actions taken bythe claimant to resolve the claim with-in the agency and the results of any ac-tions taken;

(4) A copy of any relevant decision orwritten response by the agency;

(5) Evidence available to the claim-ant or the claimant’s designated rep-resentative which supports the claim,including the identity, commercialtelephone number, and location ofother individuals who may be able toprovide information relating to theclaim;

(6) The remedy sought by the claim-ant;

(7) Evidence, if available, that theclaim period was preserved in accord-ance with § 551.702. The date the claimis received by the agency or OPM be-comes the date on which the claim pe-riod is preserved;

(8) A statement from the claimantthat he or she was or was not a memberof a collective bargaining unit at anytime during the claim period;

(9) If the claimant was a member of abargaining unit, a statement from theclaimant that he or she was or was not


584

5 CFR Ch. I (1–1–02 Edition)§ 551.706

covered by a negotiated grievance pro-cedure at any time during the claimperiod, and if covered, whether thatprocedure specifically excluded theclaim from the scope of the negotiatedgrievance procedure;

(10) A statement from the claimantthat he or she has or has not filed anaction in an appropriate United Statescourt; and

(11) Any other information that theclaimant believes OPM should con-sider.

§ 551.706 Responsibilities.

(a) Claimant.(1) Providing information to OPM. For

all FLSA claims, the claimant orclaimant’s designated representativemust provide any additional informa-tion requested by OPM within 15 work-days after the date of the request, un-less the claimant or the claimant’s rep-resentative requests additional timeand OPM grants a longer period of timein which to provide the requested infor-mation. The disclosure of informationby a claimant is voluntary. However,OPM may be unable to render a deci-sion on a claim without the informa-tion requested. In such a case, theclaim will be cancelled without furtheraction being taken by OPM. In the caseof an FLSA pay claim, it is the claim-ant’s responsibility to provide evidencethat the claim period was preserved inaccordance with § 551.702 and of the li-ability of the agency and the claim-ant’s right to payment.

(2) Requesting confidentiality. If theclaimant wishes the claim to be treat-ed confidentially, the claim must spe-cifically request that the identity ofthe claimant not be revealed to theagency. Witnesses or other sourcesmay also request confidentiality. OPMwill make every effort to conduct itsinvestigation in a way to maintainconfidentiality. If OPM is unable to ob-tain sufficient information to render adecision and preserve the requestedconfidentiality, OPM will notify theclaimant that the claim will be can-celled with no further action by OPMunless the claimant voluntarily pro-vides written authorization for his orher name to be revealed.

(b) Agency.

(1) In FLSA exemption status deter-mination claims, the burden of proofrests with the agency that asserts theFLSA exemption.

(2) The agency must provide theclaimant with a written acknowledg-ment of the date the claim was re-ceived.

(3) Upon a claimant’s request, andsubject to any Privacy Act require-ments, an agency must provide aclaimant with information relevant tothe claim.

(4) The agency must provide any in-formation requested by OPM within 15workdays after the date of the request,unless the agency requests additionaltime and OPM grants a longer period oftime in which to provide the requestedinformation.

§ 551.707 Withdrawal or cancellationof an FLSA claim.

(a) Withdrawal. A claimant or theclaimant’s representative may with-draw a claim at any time prior to theissuance of an OPM FLSA claim deci-sion by providing written notice to theOPM office where the claim was filed.

(b) Cancellation. OPM may, at its dis-cretion, cancel an FLSA claim if theclaimant or the claimant’s designatedrepresentative fails to provide re-quested information within 15 work-days after the date of the request, un-less the claimant or the claimant’s rep-resentative requests additional timeand OPM grants a longer period of timein which to provide the requested infor-mation. OPM may, at its discretion, re-consider a cancelled claim on a show-ing that circumstances beyond theclaimant’s control prevented pursuit ofthe claim.

§ 551.708 Finality and effect of OPMFLSA claim decision.

OPM will send an FLSA claim deci-sion to the claimant or the claimant’srepresentative and the agency. AnFLSA claim decision made by OPM isfinal. There is no further right of ad-ministrative appeal. At its discretion,OPM may reconsider a decision upon ashowing that material information wasnot considered or there was a materialerror of law, regulation, or fact in theoriginal decision. A decision by OPM


585


under the Act is binding on all admin-istrative, certifying, payroll, dis-bursing, and accounting officials ofagencies for which OPM administersthe Act. Upon receipt of a decision, theagency employing the claimant duringthe claim period must take all nec-essary steps to comply with the deci-sion, including adherence with compli-ance instructions provided with the de-cision. All compliance actions must becompleted within the time specified inthe decision, unless an extension oftime is requested by the agency andgranted by OPM. The agency shouldidentify all similarly situated currentand, to the extent possible, former em-ployees, ensure that they are treated ina manner consistent with the decision,and inform them in writing of theirright to file an FLSA claim with theagency or OPM.

§ 551.709 Availability of information.(a) Except when the claimant has re-

quested confidentiality, the agency andthe claimant must provide to eachother a copy of all information sub-mitted with respect to the claim.

(b) When a claimant has not re-quested confidentiality, OPM will dis-close to the parties concerned the in-formation contained in an FLSA claimfile. When a claimant has requestedconfidentiality, OPM will delete anyinformation identifying the claimantbefore disclosing the information in anFLSA claim file to the parties con-cerned. For the purposes of this sub-part, the parties concerned means theclaimant, any representative des-ignated in writing, and any representa-tive of the agency or OPM involved inthe proceeding.

(c) Except when the claimant has re-quested confidentiality or the disclo-sure would constitute a clearly unwar-ranted invasion of personal privacy,OPM, upon a request which identifiesthe individual from whose file the in-formation is sought, will disclose thefollowing information from a claim fileto a member of the public:

(1) Confirmation of the name of theindividual from whose file the informa-tion is sought and the names of theother parties concerned;

(2) The remedy sought;(3) The status of the claim;

(4) The decision on the claim; and(5) With the consent of the parties

concerned, other reasonably identifiedinformation from the file.

§ 551.710 Where to file an FLSA claimwith OPM.

An FLSA claim must be filed withthe OPM office serving the area wherethe cause or basis of the claim oc-curred. Following are OPM addressesand service areas.

OPM ATLANTA OVERSIGHT DIVISION

75 Spring Street SW., Suite 972, Atlanta, GA30303–3109

Alabama, Florida, Georgia, Mississippi,North Carolina, South Carolina, Ten-nessee, Virginia (except the Virginia loca-tions listed under the Washington, DCOversight Division)

OPM CHICAGO OVERSIGHT DIVISION

230 S. Dearborn Street, DPN 30–6, Chicago, IL60604–1687

llinois, Indiana, Iowa, Kansas, Kentucky,Michigan, Minnesota, Missouri, Nebraska,North Dakota, Ohio, South Dakota, WestVirginia, Wisconsin

OPM DALLAS OVERSIGHT DIVISION

1100 Commerce Street, Room 4C22, Dallas,TX 75242–9968

Arizona, Arkansas, Colorado, Louisiana,Montana, New Mexico, Oklahoma, Texas,Utah, Wyoming

OPM PHILADELPHIA OVERSIGHT DIVISION

600 Arch Street, Room 3400, Philadelphia, PA19106–1596

Connecticut, Delaware, Maine, Maryland (ex-cept the Maryland locations listed underthe Washington, DC Oversight Division),Massachusetts, New Hampshire, New Jer-sey, New York, Pennsylvania, Rhode Is-land, Vermont, Puerto Rico, Virgin Islands

OPM SAN FRANCISCO OVERSIGHT DIVISION

120 Howard Street, Room 760, San Francisco,CA 94105–0001

Alaska, California, Hawaii, Idaho, Nevada,Oregon, Washington, Pacific Ocean Area

OPM WASHINGTON, DC OVERSIGHT DIVISION

1900 E Street NW., Room 7675, Washington,DC 20415–0001

The District of ColumbiaIn Maryland: the counties of Charles, Mont-

gomery, and Prince George’s.In Virginia: the counties of Arlington, Fair-

fax, King George, Loudoun, Prince Wil-liam, and Stafford; the cities of Alexan-dria, Fairfax, Falls Church, Manassas, andManassas Park; and any overseas area not


586

5 CFR Ch. I (1–1–02 Edition)Pt. 553

listed in the service area of another Over-sight division.

PART 553—REEMPLOYMENT OFMILITARY AND CIVILIAN RETIREESTO MEET EXCEPTIONAL EMPLOY-MENT NEEDS


Sec.553.101 Applicability.553.102 Definitions.553.103 General policy.

Subpart B—Special Provisions for Reem-ployment Without Penalty To Meet Ex-ceptional Recruiting or RetentionNeeds

553.201 Requesting OPM approval for reem-ployment without reduction in indi-vidual cases.

553.202 Request for delegation of authorityto approve reemployment without reduc-tion in emergencies.

553.203 Status of individuals serving with-out reduction.

AUTHORITY: 5 U.S.C. 8344, 8468, Sec. 651,Pub. L. 106–65 (113 STAT. 664).

SOURCE: 56 FR 6206, Feb. 14, 1991, unlessotherwise noted.


§ 553.101 Applicability.This part applies to employment of

civilian annuitants who would be sub-ject to termination of annuity or annu-ity offset under 5 U.S.C. 8344 or 5 U.S.C.8468. Agencies may request exceptionsas provided in subpart B of this partfrom the reemployed annuitant provi-sions of 5 U.S.C. 8344 (for Civil ServiceRetirement System annuitants) or 8468(for Federal Employees’ RetirementSystem annuitants), as appropriate.

[65 FR 19644, Apr. 12, 2000]

§ 553.102 Definitions.(a) Agency, as used in this part,

means an executive agency as definedin 5 U.S.C. 105.

(b) Annuitant, as used in this part, re-fers to a current or former civilian em-ployee who is receiving, or meets thelegal requirements and is applying orhas announced intention to apply for,an annuity under subchapter III ofchapter 83 or chapter 84 of title 5,

United States Code, based on his or herservice.

(c) Retiree, as used in this part refersto an annuitant as defined in para-graph (b) of this section.

[56 FR 6206, Feb. 14, 1991, as amended at 65FR 19644, Apr. 12, 2000]

§ 553.103 General policy.(a) Agency discretion and responsibility.

The decision to request an exception,or to grant an exception under dele-gated authority, for any individualunder any of the provisions of this partwill be at the discretion of the employ-ing agency. A determination made inconnection with one position does notrequire a like determination in connec-tion with any other position. In decid-ing whether to request an exception orgrant an exception under delegated au-thority, each agency is expected toweigh fiscal responsibility and em-ployee equity and should consider suchfactors as availability of funds as wellas the criteria set out in this part.

(b) Application of exceptions. An excep-tion to the salary offset provisions of 5U.S.C. 8344 or 8468 authorized by OPMor an agency under this part appliesonly to the particular individual forwhom it was authorized and only whilethat individual continues to serve inthe same or a successor position. Theexception terminates upon the individ-ual’s assignment to a different positionunless a new exception is authorizedunder the provisions of this part.

[56 FR 6206, Feb. 14, 1991, as amended at 65FR 19644, Apr. 12, 2000]

Subpart B—Special Provisions forReemployment Without Pen-alty To Meet Exceptional Re-cruiting or Retention Needs

§ 553.201 Requesting OPM approvalfor reemployment without reduc-tion in individual cases.

(a) Request by agency head. The headof an agency may request OPM to ap-prove individual exceptions on a case-by-case basis to meet temporary emer-gency hiring needs or when the agencyhas encountered exceptional difficultyin recruiting or retaining a qualifiedcandidate for a particular position. Au-thority to submit such a request may


550.1308 5 cfr ch. i (11 02 edition) · 551.412 preparatory or concluding activi- ... ed by pub. l....

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