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§ 5547. Limitation on premium pay

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Release point 115-196 · current through 07/07/2018

§ 5547.

Limitation on premium pay

(a)

An employee may be paid premium pay under sections 5542, 5545(a), (b), and (c), 5545a, 5546(a) and (b), and 5550 only to the extent that the payment does not cause the aggregate of basic pay and such premium pay for any pay period for such employee to exceed the greater of—

(1)

the maximum rate of basic pay payable for GS–15 (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law); or

(2)

the rate payable for level V of the Executive Schedule.

(b)
(1)

Subject to regulations prescribed by the Office of Personnel Management, subsection (a) shall not apply to an employee who is paid premium pay by reason of work in connection with an emergency (including a wildfire emergency) that involves a direct threat to life or property, including work performed in the aftermath of such an emergency.

(2)

Notwithstanding paragraph (1), no employee referred to in such paragraph may be paid premium pay under the provisions of law cited in subsection (a) if, or to the extent that, the aggregate of the basic pay and premium pay under those provisions for such employee would, in any calendar year, exceed the greater of—

(A)

the maximum rate of basic pay payable for GS–15 in effect at the end of such calendar year (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law); or

(B)

the rate payable for level V of the Executive Schedule in effect at the end of such calendar year.

(3)

Subject to regulations prescribed by the Office of Personnel Management, the head of an agency may determine that subsection (a) shall not apply to an employee who is paid premium pay to perform work that is critical to the mission of the agency. Such employees may be paid premium pay under the provisions of law cited in subsection (a) if, or to the extent that, the aggregate of the basic pay and premium pay under those provisions for such employee would not, in any calendar year, exceed the greater of—

(A)

the maximum rate of basic pay payable for GS–15 in effect at the end of such calendar year (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law); or

(B)

the rate payable for level V of the Executive Schedule in effect at the end of such calendar year.

(c)

The Office of Personnel Management shall prescribe regulations governing the methods of applying subsection (b)(2) and (b)(3) to employees who receive premium pay under section 5545(c) or 5545a, or to firefighters covered by section 5545b who receive overtime pay for hours in their regular tour of duty, and the method of payment to such employees. Such regulations may limit the payment of such premium pay on a biweekly basis.

(d)

This section shall not apply to any employee of the Federal Aviation Administration or the Department of Defense who is paid premium pay under section 5546a.

(e)

Any supplemental pay resulting from receipt of the level 1 border patrol rate of pay or the level 2 border patrol rate of pay under section 5550 shall be considered premium pay in applying this section.

Source(Pub. L. 89–554,
Sept. 6, 1966
, 80 Stat. 488; Pub. L. 90–83, § 1(31),
Sept. 11, 1967
, 81 Stat. 201; Pub. L. 97–276, § 151(e),
Oct. 2, 1982
, 96 Stat. 1201; Pub. L. 98–525, title XV, § 1537(d),
Oct. 19, 1984
, 98 Stat. 2636; Pub. L. 100–523, § 2,
Oct. 24, 1988
, 102 Stat. 2605; Pub. L. 101–509, title V, § 529 [title II, § 204, title IV, § 410(b)],
Nov. 5, 1990
, 104 Stat. 1427, 1456, 1469; Pub. L. 102–378, § 2(43),
Oct. 2, 1992
, 106 Stat. 1352; Pub. L. 103–329, title VI, § 633(b)(2),
Sept. 30, 1994
, 108 Stat. 2427; Pub. L. 107–107, div. A, title XI, § 1114(a),
Dec. 28, 2001
, 115 Stat. 1239; Pub. L. 113–277, § 2(g)(1),
Dec. 18, 2014
, 128 Stat. 3005.)
Notes
Historical and Revision Notes
1966 Act
Derivation
U.S. Code
Revised Statutes and
Statutes at Large
 
5 U.S.C. 943.
June 30, 1945, ch. 212, § 603, 59 Stat. 302.
May 24, 1946, ch. 270, § 7(a), 60 Stat. 218.
 
 
July 3, 1948, ch. 830, § 303(a), 62 Stat. 1268.
 
 
Sept. 1, 1954, ch. 1208, § 209, 68 Stat. 1112.
Former section 943(a), (b) is combined and restated for clarity and conciseness. The word “officer” is omitted as included in “employee”. The word “scheduled” is omitted since section 603 of the Act of Oct. 11, 1962, Pub. L. 87–793, 76 Stat. 847, eliminated the necessity of referring to rates as scheduled or longevity. Reference to the “Classification Act of 1949, as amended” is omitted as unnecessary.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act

In the codification of 5 U.S.C. 5547, the words “premium pay under this subchapter” were substituted for “premium compensation provided by this Act” appearing in the source statute—section 603 of the Federal Employees Pay Act of 1945, as amended (former 5 U.S.C. 943). This amendment of 5 U.S.C. 5547 is made for clarity and precision of reference and in recognition that the source statutes for certain sections of subchapter V of chapter 55 of title 5 include statutes that were not a part of the Federal Employees Pay Act of 1949. Specifically, 5 U.S.C. 5544(a) is based in part on section 23 (2d proviso) of the act of
March 28, 1934
, as amended by 76 Stat. 360; and 5 U.S.C. 5545(d) is based on section 804 of the Classification Act of 1949, as added by Public Law 89–512, 80 Stat. 318. Also, 5 U.S.C. 5541(2)(xi) in effect excludes employees subject to 5 U.S.C. 5544 from the operation of 5 U.S.C. 5547.

References in Text

GS–15, referred to in subsecs. (a)(1) and (b)(2)(A), (3)(A), is contained in the General Schedule which is set out under section 5332 of this title.
Level V of the Executive Schedule, referred to in subsecs. (a)(2) and (b)(2)(B), (3)(B), is set out in section 5316 of this title.

Amendments

2014—Subsec. (a). Pub. L. 113–277, § 2(g)(1)(A), struck out “and” before “5546(a) and (b)” and inserted “, and 5550” after “5546(a) and (b)”.
Subsec. (e). Pub. L. 113–277, § 2(g)(1)(B), added subsec. (e).
2001—Pub. L. 107–107 reenacted section catchline without change and amended text generally. Prior to amendment, text read as follows:
“(a) An employee may be paid premium pay under sections 5542, 5545(a), (b), and (c), 5545a, and 5546(a) and (b) of this title only to the extent that the payment does not cause his aggregate rate of pay for any pay period to exceed the maximum rate for GS–15 (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law). The first sentence of this subsection shall not apply to any employee of the Federal Aviation Administration or the Department of Defense who is paid premium pay under section 5546a of this title.
“(b)(1) Subject to regulations prescribed by the Office of Personnel Management, the first sentence of subsection (a) shall not apply to an employee who is paid premium pay by reason of work in connection with an emergency which involves a direct threat to life or property, including a forest wildfire emergency.
“(2) Notwithstanding paragraph (1), no employee referred to in such paragraph may be paid premium pay under the provisions of law cited in the first sentence of subsection (a) if, or to the extent that, the aggregate of such employee’s basic pay and premium pay under those provisions would, in any calendar year, exceed the maximum rate payable for GS–15 in effect at the end of such calendar year.
“(c)(1) Subsections (a) and (b) shall not apply to a law enforcement officer.
“(2) A law enforcement officer may be paid premium pay under the provisions of law cited in the first sentence of subsection (a) only to the extent that the payment does not cause the officer’s aggregate rate of pay for any pay period to exceed the lesser of—
“(A) 150 percent of the minimum rate payable for GS–15 (including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law); or
“(B) the rate payable for level V of the Executive Schedule.”
1994—Subsec. (a). Pub. L. 103–329 inserted “5545a,” after “5545(a), (b), and (c),”.
1992—Subsec. (c)(3). Pub. L. 102–378 struck out par. (3) which read as follows: “For the purposes of this subsection, ‘law enforcement officer’ means any law enforcement officer within the meaning of section 8331(20) or section 8401(17).”
1990—Subsec. (a). Pub. L. 101–509, § 529 [title II, § 204(1)], inserted “(including any applicable locality-based comparability payment under section 5304 or similar provision of law and any applicable special rate of pay under section 5305 or similar provision of law)” after “GS–15”.
Subsec. (b). Pub. L. 101–509, § 529 [title II, § 204(2)], amended subsec. (b) generally, substituting present provisions for former provisions consisting of pars. (1) to (3) that related to pay of forest firefighters working on forest wildfire emergencies.
Subsec. (c). Pub. L. 101–509, § 529 [title IV, § 410(b)], added subsec. (c).
1988—Pub. L. 100–523 amended section generally, designating existing provisions as subsec. (a) and adding subsec. (b).
1984—Pub. L. 98–525 inserted “or the Department of Defense”.
1982—Pub. L. 97–276 inserted provision directing that first sentence of this section not apply to any employee of Federal Aviation Administration who is paid premium pay under section 5546a of this title.

Effective Date of 2014 Amendment

Amendment by Pub. L. 113–277 effective on the first day of the first pay period beginning on or after
Jan. 1, 2016
, subject to certain exceptions, see section 2(i) of Pub. L. 113–277, set out as a note under section 5542 of this title.

Effective Date of 2001 Amendment

Pub. L. 107–107, div. A, title XI, § 1114(c),
Dec. 28, 2001
, 115 Stat. 1240, provided that:
“The amendments made by subsections (a) and (b) [amending this section and provisions set out as a note under this section] shall take effect on the first day of the first pay period beginning on or after the date that is 120 days following the date of enactment of this Act [
Dec. 28, 2001
].”

Effective Date of 1994 Amendment

Amendment by Pub. L. 103–329 effective first day of first applicable pay period beginning on or after 30th day following
Sept. 30, 1994
, with exceptions relating to criminal investigators employed in Offices of Inspectors General, see section 633(e) of Pub. L. 103–329, set out as an Effective Date note under section 5545a of this title.

Effective Date of 1992 Amendment

Amendment by Pub. L. 102–378 effective as of first day of first applicable pay period beginning on or after
Oct. 2, 1992
, see section 9(b)(9) of Pub. L. 102–378, set out as a note under section 6303 of this title.

Effective Date of 1990 Amendment

Amendment by section 529 [title II, § 204] of Pub. L. 101–509 effective on such date as the President shall determine, but not earlier than 90 days, and not later than 180 days, after
Nov. 5, 1990
, see section 529 [title III, § 305] of Pub. L. 101–509, set out as a note under section 5301 of this title.

Effective Date of 1984 Amendment

Amendment by Pub. L. 98–525 effective
Oct. 1, 1984
, see section 1537(f) of Pub. L. 98–525, set out as a note under section 4109 of this title.

Effective Date of 1982 Amendment

Amendment by Pub. L. 97–276 effective at 5 o’clock ante meridian eastern daylight time,
Aug. 3, 1981
, see section 151(h)(1) of Pub. L. 97–276, set out as an Effective Date note under section 5546a of this title.

Short Title of 1988 Amendment

Pub. L. 100–523, § 1,
Oct. 24, 1988
, 102 Stat. 2605, provided:
“That this Act [amending this section] may be cited as the ‘Forest Wildfire Emergency Pay Equity Act of 1988’.”

Overtime Pay for Protective Services

Pub. L. 114–311,
Dec. 16, 2016
, 130 Stat. 1531, provided that:
“SECTION 1.

SHORT TITLE.

“This Act may be cited as the ‘Overtime Pay for Protective Services Act of 2016’.

“SEC. 2.

PREMIUM PAY EXCEPTION DURING 2016 THROUGH 2018 FOR PROTECTIVE SERVICES.

“(a)

Definition.—

In this section, the term ‘covered employee’ means any officer, employee, or agent employed by the United States Secret Service who performs protective services for an individual or event protected by the United States Secret Service during 2016, 2017, or 2018.

“(b)

Exception to the Limitation on Premium Pay for Protective Services.—

“(1)
In general.—

Notwithstanding any other provision of law, including section 5547(a) of title 5, United States Code, and only to the extent that an appropriation is provided specifically in an appropriations Act for premium pay in excess of the annual equivalent of the limitation on the rate of pay contained in section 5547(a), any covered employee may receive premium pay during 2016, 2017, and 2018, to the extent provided under section 118 of the Treasury and General Government Appropriations Act, 2001 (5 U.S.C. 5547 note).

“(2)
Technical and conforming amendment.—

[Amended section 1(a)(3) [title I, § 118] of Pub. L. 106–554, set out below.]

“(c)

Treatment of Additional Pay.—

If subsection (b) results in the payment of additional premium pay to a covered employee of a type that is normally creditable as basic pay for retirement or any other purpose, that additional pay shall not—

“(1)

be considered to be basic pay of the covered employee for any purpose; or

“(2)

be used in computing a lump-sum payment to the covered employee for accumulated and accrued annual leave under section 5551 or section 5552 of title 5, United States Code.

“(d)

Aggregate Limit.—

With respect to the application of section 5307 of title 5, United States Code, the payment of any additional premium pay to a covered employee as a result of subsection (b) shall not be counted as part of the aggregate compensation of the covered employee.

“(e)

Effective Date.—

This section and the amendments made by this section shall take effect as if enacted on

December 31, 2015
.”

[Pub. L. 115–160, § 2(b),
Apr. 3, 2018
, 132 Stat. 1246, provided that:
“The amendments made by subsection (a) [amending Pub. L. 114–311, set out above, and section 1(a)(3) [title I, § 118] of Pub. L. 106–554, set out below] shall take effect as if enacted on
December 31, 2016
.”
]

Premium Pay for Protective Services of United States Secret Service

Pub. L. 106–554, § 1(a)(3) [title I, § 118],
Dec. 21, 2000
, 114 Stat. 2763, 2763A–134, as amended by Pub. L. 107–107, div. A, title XI, § 1114(b),
Dec. 28, 2001
, 115 Stat. 1240; Pub. L. 114–311, § 2(b)(2),
Dec. 16, 2016
, 130 Stat. 1531; Pub. L. 115–160, § 2(a)(2),
Apr. 3, 2018
, 132 Stat. 1246, provided that:
“Hereafter, funds made available by this or any other Act may be used to pay premium pay for protective services authorized by section 3056(a) or 3056A of title 18, United States Code, without regard to the restrictions contained in section 5547 of title 5, United States Code, except that such premium pay shall not be payable to an employee to the extent that the aggregate of the employee’s basic and premium pay for the year would otherwise exceed the annual equivalent of that limitation or, if the employee qualifies for an exception to such limitation under section 2(b)(1) of the Overtime Pay for Protective Services Act of 2016 [Pub. L. 114–311, set out above], to the extent that such aggregate amount would exceed the rate of basic pay payable for a position at level II of the Executive Schedule under section 5313 of title 5, United States Code. The term premium pay refers to the provisions of law cited in the first sentence of section 5547(a) of title 5, United States Code. Payment of additional premium pay payable under this section may be made in a lump sum on the last payday of the calendar year.”
Similar provisions were contained in Pub. L. 106–58, title I, § 118,
Sept. 29, 1999
, 113 Stat. 441.
[Pub. L. 115–160, § 2(b),
Apr. 3, 2018
, 132 Stat. 1246, provided that:
“The amendments made by subsection (a) [amending Pub. L. 114–311 and section 1(a)(3) [title I, § 118] of Pub. L. 106–554, set out above] shall take effect as if enacted on
December 31, 2016
.”
]
[For transfer of the functions, personnel, assets, and obligations of the United States Secret Service, including the functions of the Secretary of the Treasury relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see sections 381, 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of
November 25, 2002
, as modified, set out as a note under section 542 of Title 6.]

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