June 18, 1997
MEMORANDUM FOR DIRECTORS OF PERSONNEL (CPM 97-6)
FROM: DONALD J.
WINSTEAD
ASSISTANT
DIRECTOR
FOR
COMPENSATION POLICY
SUBJECT: Inclusion of FLSA Overtime Pay in Lump-Sum Payments for Annual Leave for Employees on Uncommon Tours of Duty
The Federal Government has reached an agreement to settle with
plaintiffs in James Calhoun, et al., v. The United
States (Fed. Cl. No. 95-840C, December 21, 1995) in which the
Federal Government conceded that overtime pay under the Fair
Labor Standards Act of 1938, as amended (FLSA), for regularly
scheduled overtime hours that occur during an uncommon tour of
duty must be included in an employee's lump-sum payment for
accumulated and accrued annual leave under 5 U.S.C. 5551. The
Federal Government also reached a settlement agreement with
plaintiffs making a similar claim in Theodore Abbott, et al.,
v. The United States (Fed. Cl. No. 90-756C, January 31,
1994).
To prevent further lawsuits against the Federal Government,
future lump-sum payments for accumulated and accrued annual leave
should include all FLSA overtime pay for overtime hours that are
regularly scheduled during an employee's established uncommon
tour of duty (as defined in 5 CFR 630.201) if such uncommon tour
of duty was in effect for the employee immediately prior to the
date the employee became eligible for a lump-sum payment. (Note
that the overtime standard established under section 7(k) of the
FLSA for employees engaged in fire protection activities who
receive annual premium pay for regularly scheduled standby duty
is 106 hours biweekly. The additional overtime pay for regularly
scheduled overtime hours is computed at one-half times the hourly
regular rate, not one and one-half times the hourly regular
rate.)
Under 5 U.S.C. 5553, the Office of Personnel Management is
authorized to prescribe regulations necessary for the
administration of lump-sum payments. OPM plans to issue proposed
regulations in the near future on lump-sum payments for annual
leave that will also address this matter.
For further information or assistance concerning the
administration of lump-sum payments for annual leave,
please contact OPM's Compensation Administration Division on
(202) 606-2858, FAX: (202) 606-0824, or email at payleave@opm.gov.