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In Reply Refer To: Your Reference:
OPM Contact: Joann Charleston
An employee of the [agency] requests that we review his claim
for Administratively Uncontrollable Overtime (AUO). We have
completed our review of this claim and have determined that it may
not be allowed.
Briefly stated, the employee is appealing a determination made
by his agency that he is not entitled to AUO. The agency has
determined that the employee is not entitled to be paid any form of
premium pay following his reassignment to the [xxx] position.
Title 5, U.S.C. 5545(c)(2) provides the authority to make AUO
payments. The use of AUO pay to compensate unscheduled irregular
overtime work is a form of premium pay compensated on an annual
rather than hourly basis. The use of AUO pay to compensate required
overtime work of a position is not mandatory, but discretionary
when the agency deems it to be the most appropriate form of premium
pay for the irregular overtime work inherent in the work
requirements of a position. It is a discretionary determination on
the part of an agency to pay AUO, not an entitlement or benefit on
the part of an employee.
In this case, the agency notes that the employee currently is
assigned to a GS-15 position and paid at step 10 of that grade.
Employees receiving AUO, however, are subject to the maximum
bi-weekly earnings limitation in 5 U.S.C. 5547, which happens to be
set for most employees at the maximum rate (step 10) for GS-15. The
employee asserts, however, that he is subject to a higher maximum
earnings limitation established for law enforcement officers at 5
U.S.C. 5547(c). The employee acknowledges that he does not qualify
for law enforcement officer retirement credit, but asserts that the
definition of law enforcement officer for purposes of premium pay
is broader than the retirement definition. The definitions section
of premium pay chapter in the United States Code, however,
expressly states that law enforcement officer means an employee who
qualifies as a law enforcement officer under the employee's
applicable retirement statute. 5 U.S.C. 5541(3).
We are required to settle claims only in accordance with the
applicable laws and regulations, and we cannot waive or modify
their provisions in individual cases. Accordingly, the claim is
This settlement is final. No further administrative review is
available within OPM. Nothing in this settlement limits the
claimant's right to bring an action in an appropriate United States