TITLE: B-305835.2, United States Capitol Police--Overtime Pay and Compensatory Leave for Members and Civilian Employees, August 29, 2005
BNUMBER: B-305835.2
DATE: August 29, 2005
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B-305835.2, United States Capitol Police--Overtime Pay and Compensatory Leave for Members and Civilian Employees, August 29, 2005
B-305835.2
August 29, 2005
William H. Pickle
Chairman
Wilson Livingood
Member
Alan M. Hantman
Member
United States Capitol Police Board
Subject: United States Capitol Police--Overtime Pay and Compensatory Leave
for Members and Civilian Employees
On July 7, 2005, you requested our opinion on the authority of the United
States Capitol Police (USCP) to provide overtime pay and compensatory and
annual leave to its members and civilian employees. On July 19, 2005, we
issued an opinion regarding overtime pay and compensatory leave for the
three USCP employees whose salaries are fixed by statute: the Chief of
Police, the Assistant Chief, and the Chief Administrative Officer.[1] This
opinion addresses these same issues for the remaining USCP members and
civilian employees.[2] This opinion also addresses the application of
Section 1007 of the Legislative Branch Appropriations Act, 2006,[3] which
waives the repayment of unauthorized overtime compensation for certain
USCP officers.
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 June 15, 2005. Section 1007
explicitly excludes the Chief, Assistant Chief, and Chief Administrative
Officer from this waiver.
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 (Jan. 23, 1995) (2 U.S.C. sect. 1313). The
FLSA requires that certain employees receive additional compensation for
hours worked beyond a 40-hour work week. 29 U.S.C. sect. 207. Generally,
the Congressional Accountability Act requires that employees covered by
the FLSA receive overtime pay, not compensatory leave, for additional
hours worked. 2 U.S.C. sect. 1313(a)(3). These requirements apply to most
employees who are not "employed in a bona fide executive, administrative,
or professional capacity." 29 U.S.C. sect. 213(a)(1).
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. Id. The USCP Board issued such
regulations, including provisions authorizing overtime pay and
compensatory leave, and the committees approved the regulations in 1998.
Capitol Police Board Regulations Prescribing a Unified Leave System for
Members and Civilian Employees of the USCP (USCP Leave Regulations) (May
21, 1998).
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. Id. sect. IV(B)-(C). As
required by the Congressional Accountability Act, employees who are
covered by the FLSA generally must receive overtime pay, not compensatory
leave, for additional hours worked.[4] 2 U.S.C. sections 1313(a)(1), (3);
USCP Leave Regulations, sect. IV(C).
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) (Jan.
15, 1998). For 2005, the maximum amount of compensation for civilian
employees is $156,848. Schedule of Rates of Basic Pay for Civilian
Employees of the USCP (Jan. 9, 2005). This limit is applied on an annual
basis, rather than on a pay period basis.[6] USCP Pay Regulations, sect.
d.
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 (Jan. 9,
2005). This pay limitation is applied on an annual basis. 2 U.S.C. sect.
1932; USCP Pay Regulations, sect. d.
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 (Feb. 20, 2003) (Consolidated Appropriations
Resolution). Section 1009, which applies only to officers at the rank of
lieutenant and higher, authorizes the USCP Chief to provide for the
compensation of overtime work with either overtime pay or compensatory
leave. Id. However, such compensation must be provided "in the same manner
and subject to the same terms and conditions which are applicable to the
compensation of overtime work of officers and members of the United States
Secret Service Uniformed Division and the United States Park Police who
serve at the rank of lieutenant and higher" in accordance with section
5-1304 of the District of Columbia Code. Id.
Under the terms and conditions of District of Columbia law, officers may
elect to receive either overtime pay or compensatory leave. However, the
statute provides that no overtime pay nor compensatory leave is authorized
for any officer whose rate of basic compensation,[10] combined with any
applicable locality-based comparability payment, equals or exceeds the
lesser of 150 percent of the minimum rate payable for grade GS-15 of the
General Schedule for the relevant locality ($155,920, in 2005), or the
rate of pay for level V of the Executive Schedule ($131,400, in 2005).
D.C. Code Ann. sect. 5-1304(h)(3)(A) (2005). Thus, for 2005, no officer at
the rank of lieutenant and above whose salary exceeds $131,400 may receive
overtime pay or compensatory leave.
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 District of Columbia
statute distinguishes between "premium pay" and "compensatory time off."
See, e.g., D.C. Code Ann. sections 5-1304(f)(1)(B), (h)(1), (h)(3)(A)
(2005). For example, officers who are denied the use of "compensatory time
off" may apply for "premium pay" instead. D.C. Code Ann. sect.
5-1304(f)(1)(B). Because the statute distinguishes between "premium pay"
and "compensatory time off," and the cap for officers earning less than
$131,400 refers only to "premium pay," in our opinion, this cap applies
only to those officers who elect overtime pay, not compensatory leave.
While the District of Columbia statute applies the premium pay cap on a
pay period basis, a separate provision that was enacted in the same
statute as section 1009 directs that limits on premium pay for USCP
officers and members are to be applied on an annual basis. Consolidated
Appropriations Resolution, sect. 1012 (2 U.S.C. sect. 1932). Thus, in
2005, officers at the rank of lieutenant and higher may receive overtime
pay, but only to the extent that their basic rate of pay, plus any
overtime pay received, does not exceed $131,400 on an annual basis. Such
officers may also elect compensatory time.[11]
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 (Aug. 2, 2005).
Section 1007 states that "any individual to whom overtime compensation was
paid under section 1009 [of the Consolidated Appropriations Resolution],
in violation of the restrictions applicable to the payment of such
compensation under section 1009(b) of such Act[,] shall not be required to
repay the compensation, but only to the extent the compensation was paid
for services provided prior to June 15, 2005."[12] Id.
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 June 15, 2005. Memorandum
from John T. Caulfield, General Counsel, USCP, to Tony Gamboa, General
Counsel, GAO (Aug. 2, 2005). The USCP General Counsel, however, stated
that section 1007 would not waive unauthorized compensatory leave that was
earned, but not used. Id. He emphasized that the intention of section 1007
was to ensure that USCP officers did not have to repay funds that were
erroneously paid because of "flawed management controls." H. Rpt. 109-189,
at 33 (July 26, 2005). We agree.
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
District of Columbia law. The referenced District of Columbia statute
authorizes the payment of either premium pay or compensatory time off.
D.C. Code Ann. sections 5-1304(d)(1)-(2) (2005). Therefore, we would read
"overtime compensation" as used in section 1007 to include both overtime
pay and compensatory leave.
Section 1007 also states that officers shall not be required to "repay"
any unauthorized compensation. Pub. L. No. 109-55, sect. 1007 (Aug. 2,
2005). Likewise the conference report accompanying the legislation
emphasizes that the provision "waives the repayment of certain overtime
compensation paid incorrectly." H. Rpt. 109-189, at 33 (July 26, 2005)
(emphasis added). Generally, leave is understood to be "paid" when it is
used, rather than when it is earned.[13] Therefore, we agree with the USCP
General Counsel that section 1007 waives the collection of unauthorized
overtime pay that was earned and paid or any compensatory leave that was
earned and used prior to June 15, 2005. This provision would apply to
officers whose base salary exceeds the statutory cap referenced in
District of Columbia law and who collected either overtime pay or
compensatory leave, and to officers whose base salary is under the
statutory cap, but who collected overtime pay such that their annual
aggregate compensation exceeded the cap.
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 July 19, 2005, opinion, provide guidance to the USCP
regarding implementation of overtime regulations and statutes. Given the
recent focus on USCP's implementation of its overtime statutes and
regulations, we think now would be an appropriate time for the USCP to
consult with its oversight committees to address concerns over its
overtime compensation system and to consider how to clarify and update the
USCP pay and leave authorities. In light of the multiple, and sometime
conflicting, statutes and regulations that apply to the pay and leave of
USCP employees, the USCP Board should consider whether to develop, in
consultation with its oversight committees, a legislative package that
includes complete, comprehensive, and integrated pay and leave
authorities.
/signed/
Anthony H. Gamboa
General Counsel
------------------------
[1]B-305835, July 19, 2005. In the first opinion, we concluded that the
USCP Chief and Assistant Chief were ineligible for compensatory leave or
overtime pay because their annual rates of pay exceed the statutory cap on
eligibility for overtime. The Chief Administrative Officer is not eligible
for overtime pay, but could be eligible for compensatory leave under
special circumstances as determined by the Chief.
[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 (Aug. 2, 2005).
[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 July 22, 2005, the USCP Board forwarded proposed amendments to the
USCP leave regulations to its oversight committees for their review and
approval. Under these amendments, FLSA-exempt civilian employees may earn
compensatory leave for "any special event or special assignment" provided
their basic salary is less than the lesser of 150 percent of the minimum
rate payable for grade GS-15 of the General Schedule for the relevant
locality ($155,920, in 2005), or the rate of pay for level V of the
Executive Schedule ($131,400, in 2005). However, employees 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.
[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 Washington, D.C., region may not receive more than
$135,136 in base salary and overtime pay or compensatory leave. This cap
is calculated as the greater of the maximum rate of basic pay for GS-15
for the relevant locality ($135,136, in 2005 for the Washington, D.C.,
locality) or level V of the Executive Schedule ($131,400, in 2005). Id.
OPM includes "the dollar value of earned hours of compensatory time off"
within the definition of premium pay for purposes of this cap. 5 C.F.R.
sect. 550.105.
[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 District of Columbia statute defines rate of basic compensation
as the rate of compensation fixed by law for the position exclusive of any
deductions or additional compensation of any kind. D.C. Code Ann. sect.
5-1304(a)(7). For the USCP, we would read this as the rate of pay for an
officer that is derived from the Schedule of Rates of Basic Pay for
Members of the USCP. Thus, it would not include specialty or proficiency
pay, awards, bonuses, student loan repayments, or other similar
compensation.
[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 (Aug. 2, 2005). Therefore,
the USCP cannot waive unauthorized payments of overtime compensation to
the Chief, Assistant Chief, or Chief Administrative Officer. Section 1007
only waives repayment of overtime compensation paid under section 1009 of
the Consolidated Appropriations Resolution, which applies to uniformed
officers at the rank of lieutenant and above. Therefore, the section 1007
waiver does not apply to USCP civilian employees.
[13] See, e.g., USCP Leave Regulations, sect. XVI(A) (separating
employees are "paid" for their accumulated annual leave).