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Pay & Leave Claim Decisions

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Office of the General Counsel

OPM Ref. Number S96-00882

Dear Mr. [xxx]:

This concerns your claim for premium pay for 159.26 hours of overtime that you worked from September 23, 1990 through February 9, 1991, in connection with Operation Desert Shield. Your appeal is denied for the reasons stated below.

You are employed at the GS-13 grade level as a civilian with the [agency]. Your employing agency reports that you were required to work mandatory overtime in support of Operation Desert Shield, but you were not paid for the overtime that you worked from September 23, 1990 through February 9, 1991, because payment would have resulted in earnings exceeding the limitation on bi-weekly earnings specified in 5 U.S.C. 5547(a). On April 26, 1994, you submitted a claim to your employing agency. You acknowledged in this claim that, during your participation in Desert Shield and Desert Storm, you were told that the biweekly pay cap could not be waived and was absolute. The agency denied your claim on August 16, 1994.

Section 5547(a) of title 5, United States Code, provides that premium pay may be paid under 5 U.S.C. 5542 only to the extent that payment does not cause an employees aggregate rate of pay for any pay period to exceed the maximum rate for GS-15. Section 5547(b) provides for exceptions to the biweekly maximum earnings limit. Until November 5, 1990, section 5547(b) provided for one exception to the biweekly maximum earnings limit for overtime worked during emergency situations. The exception only applied to payment for work performed during forest wildfire emergencies by forest firefighters employed with the Department of Agriculture or the Department of the Interior. 5 U.S.C. 5547(b)(1) and (2) (1988).

On November 5, 1990, Congress amended section 5547(b) to provide for an exception to the biweekly maximum earnings limit for overtime worked during an emergency involving a direct threat to life or property. Pub. L. 101-509, 104 Stat. 1456. However, this exception was not effective until March 15, 1991 and, therefore, could not be applied prior to that date, even though, as you assert, an emergency may have existed before that date. Accordingly, your claim for premium pay is denied.

Sincerely,

Jo-Ann Chabot
Attorney-Advisor

cc. [agency]

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