Written by attorney Stephanie Elizabeth Hosea

Federal Employees & FLSA Overtime: Actions Speak Louder than Words

Under a federal statute called the Fair Labor Standards Act (FLSA), many federal employees are entitled to receive overtime pay in the amount of 1 ½ times their regular rate of pay for all hours worked over 40 in a week (or in some cases, hours worked over 8 per day). All federal employees are eligible for FLSA overtime unless their government agency can show that they fall under a special exemption that makes them ineligible or "exempt" from the FLSA overtime requirements.

Government agencies have the burden of proof to show that they have correctly identified an employee as "exempt" and therefore disqualified from receiving FLSA overtime. Unfortunately, agencies sometimes misclassify "non-exempt" employees, who should receive time and ½ overtime pay, as "exempt" employees who are not entitled to receive FLSA overtime. When this happens, misclassified federal employees can often recover the overtime pay they deserve.

There are various exemptions that can make federal employees ineligible for FLSA overtime, including:

  • Executive exemption (primary duty is management; directs the work of two or more other employees on a regular basis; has the authority to hire or fire and/or whose recommendations for such actions carry "particular weight" [5 CFR § 551.205])
  • Administrative exemption (primary duty is performance of office work directly related to the management or general business operations and whose primary duty involves the "exercise of discretion and independent judgment with respect to matters of significance" [5 CFR § 551.206])
  • Professional exemption (primary duty is the "performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction" [5 CFR § 551.207])

The key to figuring out whether an employee is truly exempt from FLSA overtime is to examine what he or she actually does on the job day-to-day. If the employee's actual job duties show that he does not perform the type of work that makes him exempt, then the agency has probably misclassified him and he may be entitled to FLSA overtime.

Position descriptions and titles can assist with the determination of whether an employee is exempt, but the final analysis hinges on the actual work performed by the employee, not the words in the position description or title. An employee's grade level is also not necessarily determinative when figuring out whether he is exempt. For example, a GS-14 employee whose actual work performed does not fit into an exemption is most likely entitled to receive FLSA overtime.

There are many factors and considerations that go into determining whether a federal employee falls into one of the above-mentioned exemptions or another exemption. When they are misclassified by federal agencies, hard-working employees do not receive their well-deserved overtime pay.

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