OPM Waives Premium Pay Cap for Border Detailees
The federal government’s HR agency declared that the influx of children at the southern border is an emergency for the purposes of waiving restrictions on how much premium pay federal employees can earn.
The Office of Personnel Management announced Thursday that it will waive the normal biweekly cap on premium pay for federal employees working along the southern border to help process the increased number of unaccompanied children arriving there.
In March, the Biden administration called on federal workers across government to volunteer for four-month assignments to help the Health and Human Services Department as it struggles to handle the influx of migrants.
In a memo to agency heads, Acting OPM Director Kathleen McGettigan said that HHS employees and workers from other federal agencies who have been detailed to aid in the effort to process children along the border will have their biweekly premium pay cap waived in favor of an annual cap. Such a waiver can only occur when a federal agency—or OPM—determines that employees’ work is needed to address an emergency situation.
“Under OPM regulations, an emergency is defined as a temporary condition posing a direct threat to human life or property,” McGettigan wrote. “The unaccompanied children who are being assisted by HHS following entry are subject to conditions posing a direct threat to their lives, as they are in need of food, shelter, supervision and protection, and unable to provide such resources for themselves. OPM has determined that the presence of unaccompanied children at the southern border constitutes an emergency for purposes of the premium pay cap determination.”
McGettigan wrote that the waiver will apply to all Title 5 employees performing work in support of the unaccompanied children program. Those on voluntary temporary details will return to the normal biweekly premium pay cap when they return to their normal duties.
In additional guidance on OPM’s decision, the agency stated that some activities will remain subject to the normal biweekly cap on premium pay, including standby duty pay, administratively uncontrollable overtime pay, law enforcement availability pay, regular overtime for firefighters, and within-tour overtime pay for Border Patrol agents. And overtime pay for employees not exempt from the Fair Labor Standards Act does not count as premium pay under the biweekly or annual premium pay caps.
“Pay (or compensatory time off hours earned) for overtime work performed by an FLSA-nonexempt employee is not affected by the premium pay caps,” OPM wrote. “However, an FLSA-nonexempt employee may receive other premium pay (e.g., night pay and Sunday pay) that is subject to the cap.”