By
Josh Eidelson
(Bloomberg) - The Federal Emergency Management Agency has informed
employees who’ve worked extra hours battling a record wave of natural
disasters in 2017 that they may have to pay back some of their overtime.
Federal
law caps some federal employees’ premium pay and permits agencies to
recover money paid in excess of the maximum from future paychecks. FEMA
says the extraordinary year of hurricanes, wildfires and other disasters
means it may have to take that step.
“This year’s unprecedented
hurricane season led to a record-setting length of national activation,”
the agency said in an emailed statement. “Due to the extended work
hours involved in supporting disaster recovery and response efforts for
multiple storms, some employees have been affected by the annual maximum
earnings limitation.”
The agency last month sent employees a
Frequently Asked Questions document saying that those who hit the annual
cap due to the number of extra hours they’ve worked “may still be
ordered to perform work without receiving further compensation,” and
would “continue to receive their regular base pay regardless of whether
they exceed the annual premium pay cap or not.”
Then, it said, “A
bill will be determined and established for any premium pay amounts over
the annual premium pay cap and the employee will be notified and billed
in 2018 for that amount."
The
issue arises amid broader reckoning at FEMA. On Nov. 30, the agency’s
administrator Brock Long told a House Appropriations subcommittee that
staff were "tapped out" following record activation. "FEMA was never
designed to be the first or only respondent in a disaster, but we often
find ourselves in that situation," he said.
According to FEMA,
there is a pool of about 500 employees whose compensation the agency is
monitoring because they are at risk of exceeding the cap. Those
employees are all exempt from the federal Fair Labor Standards Act and
generally are towards the upper end of the agency’s pay scale.
Waivers Issued
One
FEMA employee, who asked not to be identified because she wasn’t
authorized to speak to media, said workers have voiced concerns to
agency management about the issue. Billing staff or docking pay could
reduce the willingness of FEMA employees or other Homeland Security
staff to sign up for deployments in the future, she said.
The federal Office of Personnel Management, which handles federal workforce human resources, said the
ceiling on annual compensation was out of its hands.
“The
premium pay caps are statutory, and OPM does not have authority to
waive or modify the premium pay caps,” the agency said in an emailed
statement.
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."
Asked about that prospect, the Office of Personnel
Management said in an email that "The head of each agency has authority
to administer the overpayment waiver authority" under the statute.
FEMA didn’t comment on whether it might grant such waivers if employees requested them.
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.”
(Updates with Office of Personnel Management statement in fourth to last paragraph.)
--With assistance from Christopher Flavelle
To contact the reporter on this story: Josh Eidelson in Washington at jeidelson@bloomberg.net.
To contact the editors responsible for this story: Jon Morgan at jmorgan97@bloomberg.net, Michael B. Marois