High-Grade Attorneys Face Compensatory Time Cap Trap
By John A. Tolleris, Esq.

[John Tolleris is an FBA member and a retired lawyer for an executive branch agency]

Due to the unfortunate experience of a federal government attorney who recently reported having been credited with less than half the management-approved compensatory time worked within a pay period, the FBA District of Columbia Chapter has learned that GS-14 and 15 level attorneys who perform and earn a significant number of hours of management-approved compensatory hours within a two-week pay-period face a little known compensation cap trap. When they look at their earnings statements for that period, they may find that they had been credited with only a portion of the comp time hours that they thought they had earned. For example, a San Francisco based GS 14 Step 10 attorney who works 6 hours of approved compensatory time within a pay period would be credited with (and entitled to use) only 3 hours of comp time on his/her earnings statement. Also, a Washington-based GS 15 Step 6 Senior Counsel who works 12 approved comp hours within a pay period would receive only a 6 hour comp time credit. And this may even be legal and required by federal civil service law!

These disconcerting outcomes are due to the provisions of 5 U.S.C. 5547(a) and 5 CFR 550.105. Under these statutory provisions, General Schedule (GS) employees generally may receive certain types of premium pay (such as compensatory time) for a biweekly pay period only to the extent that the sum of basic pay and premium pay (including comp time hours converted into their monetary equivalence) for the pay period does not exceed the biweekly pay cap for their POD’s locality ($5,960.80 in 2010 in Washington D.C,, San Francisco and many other high cost localities in this country, slightly lower in other parts of this country such as Buffalo, New York and Cincinnati, Ohio). The number of hours professionals can earn under this cap is determined by dividing the difference between their regular biweekly pay rate and the biweekly pay cap for their POD by their hourly pay rate.  The federal Fair Labor Standards Act overrides these rules for most federal employees, but not for employees exempt from the FLSA (“exempt employees”) such as professionals, administrative and executive employees.