FAQ: Can My Supervisor Stop Me From Working AUO

Question

Can my supervisor make me stop working AUO [Administratively Uncontrollable Overtime]?  I thought it was uncontrollable and that I [employee] decide under the law.

Answer

We understand your general position.  However, the same law provides the head of the agency or designee the ability to 1) authorize or de-authorize overtime (premium pay) and 2) control the application of the authorized overtime.  Employees do not have final say as to whether they may work overtime and AUO is considered overtime under the same law. Overtime work is encompassed under management’s right to assign work and determination of particular duties to be assigned and when work assignments happen (SS admin; 58 FLRA 341, 2003 and Bureau of public Debt; 3 FLRA 769, 1980).

OPM noted in a memorandum entitled “Guidance on AUO” dated 1996 (CPM 96-19; but also see DOJ order 1551.4a for more history) that,

“The head of an agency may approve AUO pay for an employee in a position in which the hours of duty cannot be controlled administratively and which requires substantial amounts of irregular, unscheduled overtime work, with the employee generally being responsible for recognizing, without supervision, circumstances which require the employee to remain on duty. AUO pay is a substitute form of payment for such irregular, unscheduled overtime work and is paid on an annual basis instead of on an hourly basis. “

From an objective point of view, this guidance (which mirrors statutory language), tells me the agency head may determine, at absolute sole discretion, whether AUO is paid. Employees have absolutely no input on the decision though they may bargain collectively over impact and implementation.  No further discussion required or warranted on this point.

Also, note the word “generally.”  Neither law nor applicable guidance abrogates the discretion to work AUO to the individual employee.  In other words, let’s say you are working a group past your shift.  Can a supervisor tell you to disengage and return to the station to go home?  The answer is an unequivocal yes.  Whether it is good business sense is a different question altogether but unrelated to whether the supervisor can tell you to disengage and return to the station. 

On the issue of AUO rates as a percentage.

The same OPM circular provides that,

“The rate of AUO pay which is authorized for a position is based on the average number of hours of irregular or occasional overtime work performed per week. For example, a 25 percent rate is authorized for a position that requires an average of over 9 hours per week of irregular or occasional overtime work. (See 5 CFR 550.154. ) Agency reviews of the percentage of AUO pay paid to employees must be conducted “at appropriate intervals” and are typically completed every 3 to 6 months by Federal agencies in accordance with their policy directives or regulations. If the results of these reviews indicate that the employee is not receiving AUO pay in accordance with the law and regulations, the percentage of annual premium pay must be revised or, if appropriate, AUO pay must be discontinued. (See 5 CFR 550.161 (d).) “

Clearly, the guidance indicates there is no single AUO rate via it’s use of the phrase “The rate of AUO pay” and later, “the percentage of annual premium pay [AUO] must be revised.” In short, the above paragraph indicates employees do not have a right to an absolute percentage of AUO.  Combine this paragraph and the first, what you are left with is that management can control the number of hours of AUO worked and that through that control the AUO percentages (rate) will subsequently be adjusted up or down.  I find it odd anyone would dispute this statement, even without the OPM guidance.

Despite the foregoing, even if the decision to terminate or adjust AUO is outside the duty to bargain, an agency must bargain the impact and implementation of a change that has more than a de minimis impact on employees, which loss of AUO clearly would have. (See, Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986) (SSA).  Failure to do so would violate sections 7116(a)(1) and (5) of the Statute.

One of the most compelling AUO determinations I found is an unpublished OPM Case (OPM rejected claim for AUO payment) from June 1999 (OPM S9700834; 99 FPBR 1144) that determined (in regard to AUO (from the decision),

“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.”

But then again, chances are your own Agency folks don’t even know about that unpublished decision. 

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