United States Capitol Police--Overtime Pay and Compensatory Leave for Members and Civilian Employees
Highlights
Civilian employees and members of the United States Capitol Police (USCP) covered by the Fair Labor Standards Act (FLSA) are entitled to overtime pay, up to a certain amount as determined by USCP pay schedules. FLSA-exempt civilian employees may receive compensatory time only upon a determination of special circumstances by the Chief of Police. Members of the USCP at a rank below lieutenant are entitled to elect either overtime pay up to a certain amount as determined by USCP pay schedules or compensatory leave. USCP officers at a rank of lieutenant and above are entitled to overtime pay or compensatory leave, provided their base salary does not exceed $131,400 (in 2005, as determined by section 1009 of the Consolidated Appropriations Resolution, 2003). In addition, officers who elect to receive overtime pay are subject to this same cap on annual aggregate compensation. Section 1007 of the Legislative Branch Appropriations Act, 2006, waives the repayment of overtime pay paid to, or compensatory leave used by, USCP officers in violation of the restrictions in the Consolidated Appropriations Resolution.
B-305835.2, United States Capitol Police--Overtime Pay and Compensatory Leave for Members and Civilian Employees, August 29, 2005
William H. Pickle
Chairman
Wilson Livingood
Member
Alan M. Hantman
Member
Subject: United States Capitol Police—Overtime Pay and Compensatory Leave for Members and Civilian Employees
On
As we explain below, USCP civilian employees covered by the Fair Labor Standards Act (FLSA) are eligible for overtime pay, but may not receive aggregate compensation (base salary plus overtime pay) in excess of $156,848 annually (under 2005 USCP pay schedules). USCP civilian employees who are FLSA-exempt may not receive overtime pay, but may receive compensatory leave, upon a determination of special circumstances by the Chief of Police. Compensatory leave for both civilian and uniformed employees is not subject to annual aggregate compensation limits, but under USCP regulations, is subject to an annual carryover maximum of 240 hours. Since 2001, the USCP Chief has invoked his authority under the USCP Leave Regulations to waive this maximum because of continuing emergency circumstances.
Members of the Capitol Police below the rank of lieutenant are covered by the FLSA and are eligible for overtime pay (up to an annual aggregate compensation limit of $156,848 under 2005 USCP pay schedules) or compensatory leave. Lieutenants and above are FLSA-exempt and are eligible for overtime pay (up to an annual aggregate compensation limit of $131,400 under 2005 pay schedules) or compensatory leave, provided their basic rate of pay does not exceed $131,400.
Section 1007 waives the repayment of unauthorized overtime pay that was earned and compensatory leave that was earned and used by USCP officers at the rank of lieutenant and above prior to
Analysis
Civilian Employees Covered by FLSA
The Congressional Accountability Act and USCP regulations control overtime compensation for USCP civilian employees. The Congressional Accountability Act, enacted in 1995, made certain provisions of the FLSA applicable to covered employees in the legislative branch, including the Capitol Police. Pub. L. No. 104-1,
sect. 203 (
In 1997, Congress directed the USCP Board to issue regulations to establish a unified pay and leave system for USCP civilian employees and USCP members. 2 U.S.C. sect. 1923. By statute, these regulations have the force and effect of law once approved by the Committee on House Administration of the House of Representatives and the Committee on Rules and Administration of the Senate.
Section IV of these regulations deals with compensatory leave for civilian employees of the USCP and distinguishes between employees who are covered by, and those who are exempt from, the FLSA.
Civilian employees who receive overtime pay are subject to the USCP's annual aggregate compensation cap, which is set in the annual pay schedule approved by the USCP's oversight committees.[5] See Capitol Police Board Resolution For Unified Schedules of Rates of Basic Pay for Members and Civilian Employees of the USCP (USCP Pay Regulations), sect. b(3) (
Civilian Employees Exempt from FLSA
Under the USCP Leave Regulations, FLSA-exempt civilian employees, which include executive, administrative, and professional employees, may not receive overtime pay, but may receive compensatory leave for special circumstances as determined by the Chief of Police or his/her designee.[7] USCP Leave Regulations, sect. IV(B).
In the course of this opinion, the question arose whether the USCP annual aggregate compensation limits apply to compensatory leave. While the USCP regulations do not specifically answer this question, the limitation on aggregate compensation is located in the pay regulations that deal strictly with rates of pay and other cash payments, rather than the leave regulations which authorize compensatory leave. Unlike annual leave, USCP employees are not entitled to a lump sum payment for accumulated compensatory time upon separation. USCP Leave Regulations, sect. XVI. Although not completely free of doubt, we would read the annual pay limitation as applicable only to overtime pay, not compensatory leave.[8] Thus, FLSA-exempt civilian employees may earn compensatory leave, subject only to the maximum annual carryover balance of 240 hours.[9] USCP Leave Regulations, sections III(B), IV(d). To avoid any future doubt on this matter, we recommend that the USCP Board fully consider whether compensatory leave should be subject to annual aggregate pay limitations and amend its regulations accordingly.
USCP Members
USCP officers and members are eligible for overtime pay or compensatory leave under certain circumstances, but their eligibility and the limit on their overtime compensation is dependent on their rank and salary.
The Congressional Accountability Act and USCP Pay and Leave Regulations govern overtime compensation for members below the rank of lieutenant. The Congressional Accountability Act authorizes law enforcement personnel to elect compensatory time in lieu of overtime compensation. 2 U.S.C. sect. 1313(c)(4). The USCP Leave Regulations reflect this provision and state that members who have been determined to be non-exempt under the FLSA, as applied by the Congressional Accountability Act, are eligible to elect to receive hours of compensatory time off in lieu of overtime compensation for additional duty. USCP Leave Regulations, sect. IV(A).
The USCP reported to us that they have determined that members below the rank of lieutenant are subject to the FLSA and thus are non-exempt employees. Therefore, all USCP members below the rank of lieutenant may elect to receive either overtime pay or compensatory leave. Those members who elect overtime pay are subject to the USCP annual pay limitation of $156,848. Schedule of Rates of Basic Pay for Members of the USCP (
USCP Officers
The USCP considers officers at the rank of lieutenant and higher exempt from the FLSA, and section 1009 of the Consolidated Appropriations Resolution of 2003 governs their overtime compensation. Pub. L. No. 108-7, div. H, tit. I, sect. 1009 (
Under the terms and conditions of
In addition, for USCP officers whose rate of basic pay is below this amount, premium pay may be paid only to the extent that such payment would not cause such officer or member's aggregate rate of compensation to exceed the lesser of 150 percent of the minimum rate payable for grade GS-15 of the General Schedule or the rate of pay for level V of the Executive Schedule, which in 2005, is $131,400. D.C. Code Ann. sect. 5-1304(h)(3)(B) (2005). In several provisions, the
While the
Waiver of Erroneous Payments of Overtime Compensation
The Legislative Branch Appropriations Act, 2006, waives the collection of overtime compensation to certain USCP officers erroneously paid in violation of the restrictions of section 1009 of the Consolidated Appropriations Resolution. Pub. L. No. 109-55, sect. 1007 (
The USCP General Counsel asserted that this provision waives the collection of unauthorized payments of overtime pay, as well as unauthorized compensatory leave used prior to
Section 1007 uses the term overtime compensation, which is the same term used in section 1009 of the Consolidated Appropriations Resolution. As noted above, section 1009 authorized the payment of overtime compensation in the same manner as compensation is paid to members of the Secret Service Uniformed Division and the United States Park Police under
Section 1007 also states that officers shall not be required to repay any unauthorized compensation. Pub. L. No. 109-55, sect. 1007 (
Conclusion
Civilian employees and members of the USCP may be eligible for either compensatory leave or overtime pay, depending on their FLSA coverage, salary, and rank. Civilian employees covered by the FLSA are generally entitled to overtime pay, up to a certain amount as determined by USCP pay schedules. FLSA-exempt civilian employees may receive compensatory time only upon a determination of special circumstances by the Chief.
Members of the USCP at a rank below lieutenant are entitled to elect either overtime pay (up to $156,848, in annual aggregate compensation in 2005, as determined by USCP pay schedules) or compensatory leave. USCP officers at a rank of lieutenant and above are entitled to overtime pay or compensatory leave, provided their base salary does not exceed $131,400 (in 2005, as determined by section 1009 of the Consolidated Appropriations Resolution). In addition, officers who elect to receive overtime pay are subject to this same cap on annual aggregate compensation.
Section 1007 of the Legislative Branch Appropriations Act, 2006, waives the repayment of unauthorized overtime pay paid to, or compensatory leave used by, USCP officers whose base salary exceeds the cap applied by section 1009 ($131,400, in 2005), except for those officers whose annual rate of pay is set by statute (the Chief, Assistant Chief, and Chief Administrative Officer). Section 1007 also waives collection of overtime pay paid to other officers in excess of the aggregate compensation limit applied by section 1009.
This opinion, and our
/signed/
Anthony H. Gamboa
General Counsel
[1]B-305835,
[2]To gather information for this opinion, we met with the USCP Chief Administrative Officer and the Director of Human Resources and had separate discussions with the USCP General Counsel, who provided us with his written views on section 1007 of the Legislative Branch Appropriations Act, 2006.
[3]Pub. L. No. 109-55, sect. 1007 (
[4]FLSA-covered employees may receive compensatory time for additional duty that is not eligible for FLSA overtime payment. USCP Leave Regulations, sect. IV(C).
[5]Although the USCP pay schedules refer to this cap as a maximum annual payable rate, the pay regulations refer to this amount as an annual pay limitation. USCP Pay Regulations sect. d. Thus, the maximum annual payable rate is a cap on base salary, plus any overtime pay and other cash payments.
[6]Applying the cap on an annual basis, rather than on a pay period basis, allows more flexibility in dealing with unforeseeable events or emergencies.
[7]On
[8]In contrast, under Title 5, as interpreted by the Office of Personnel Management (OPM), executive branch employees are subject to a pay period cap on both overtime pay and compensatory leave. 5 U.S.C. sect. 5547. In 2005, employees in the
[9]Since 2001, the USCP Chief has invoked his authority to waive the maximum carryover for both uniformed and civilian employees because of continuing emergency circumstances. USCP Leave Regulations, sections III(B)(2), IV(D).
[10] The
[11]Under the amendments to the USCP Leave Regulations proposed by the USCP Board on July 22, 2005, two additional restrictions were added to officers' collection of compensatory leave: officers may not exceed a balance of 80 hours of compensatory leave at any time, nor may their aggregate compensation (presumably using the dollar value of compensatory leave) exceed the lesser of the 150 percent of GS-15 or Executive Schedule Level V.
[12]Section 1007(b) states that this provision does not apply with respect to any officer or employee of the [USCP] whose annual rate of pay is specified in statute. Pub. L. No. 109-55 (
[13] See, e.g., USCP Leave Regulations, sect. XVI(A) (separating employees are paid for their accumulated annual leave).