Under the law, an executive branch employee's premium pay -- which includes overtime -- combined with basic pay can't exceed the maximum rate of basic pay for certain categories of employees. An email to staff from FEMA November 2 offered the example of a category of employees based in Washington, D.C. who this year get a regular salary of $153,730; for those workers, Congress has capped the premium pay they can receive, including for working extra hours, at $7,636.40.
Along with the annual cap, there is also a ceiling on how much overtime compensation employees can receive each two-week period, but agencies have the discretion to waive that one, as the Department of Homeland Security did this year for hurricane relief -- contributing to the annual cap issue.
"Employees who have exceeded the annual premium pay cap will be contacted and provided options on the overpayment process," the agency told its employees. They will be able to give back the money via payroll deduction or simply pay the full sum, according to the Nov. 3 Q&A.
The House is slated Tuesday to consider a bill that would raise the cap on overtime for Secret Service agents, a third of whom had already hit the limit as of August. The agency, in a statement, said the bill would be a "tremendous lift to employee morale."
The bill has not yet been voted on in the Senate.
Homeland Security is not powerless to address the situation for FEMA, said attorney Jacob Statman, who represents federal workers in employment disputes.
While the agency can't waive the pay cap, a different law grants it the discretion to waive the requirement that a particular employee pay back the excessive compensation, if the employee requests the waiver and the government determines that collection "would be against equity and good conscience and not in the best interests of the United States."
Agencies are generally hesitant to grant such waivers, said Richard Loeb, an attorney for the American Federation of Government Employees, in part because waiving repayments could draw scrutiny from their inspector generals.
Former OPM director Donald Devine, who led the agency under President Ronald Reagan, said Congress never should have deprived the executive branch of the authority to waive pay caps in the first place. "You need a certain amount of flexibility in terms of running the government," Devine said. "Unfortunately, Congress gets frustrated about something, they usually try to find some blunt instrument way to do something."
(With assistance from Christopher Flavelle.)
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