Applicability
This Section applies to GS employees who are assigned to positions properly classified to the GS-1811/1812 Criminal Investigator/Criminal Investigator (Fish and Game) series. The investigator must meet the definition of law enforcement officer for purposes of early retirement under 5 U.S.C. 8331(20) and 8401(17). This will be reflected in assignment to a law enforcement officer position description which satisfies the work requirements for law enforcement officer early retirement. Members of the SES and law enforcement officers who are in FLSA NONEXEMPT positions are not eligible for availability pay.
Authorization
The head of an operating unit or other delegated authority may authorize annual premium pay at the rate of 25 percent of criminal investigator's rate of basic pay to ensure the availability of the criminal investigator for unscheduled duty hours in excess of the 40-hour workweek.
Rate of basic pay includes any applicable special pay adjustment for law enforcement officers under sections 302 and 404 of the Federal Employee's Pay Comparability Act of 1990 (P.L. 101-509), respectively, or locality-based comparability payment under 5 U.S.C. 5304, before any deductions and exclusive of additional pay of any kind.
Definitions
Available hours means hours outside the investigator's 40-hour workweek which are specifically designated by the agency and during which the criminal investigator is to be available and generally and reasonably accessible to perform unscheduled duty. For computational purposes, available hours exclude hours not on a regular workday unless the investigator actually works unscheduled duty during those hours.
Overtime work means work that is scheduled in advance of the administrative workweek and in excess of 10 hours a day on a day containing hours that are part of an investigator's basic 40-hour workweek or on a day outside the basic workweek.
Regular workdays means each day in a criminal investigator's basic workweek during which the investigator works at least 4 hours (excluding overtime and unscheduled duty hours), including hours in which the investigator is in training, performing official travel, using approved leave or excused absence (sometimes called administrative leave), and paid holidays.
Unscheduled duty means duty which meets the needs of the agency and which is officially ordered or approved by the agency. This includes work which is performed without specific supervisory approval but which is approved as compensable after the fact.
Unscheduled hours of duty means hours worked that are not part of the basic 40-hour workweek and not overtime as defined above.
Substantial Hours Requirement
Each criminal investigator whose annual average of unscheduled duty hours is certified to be (or certified as expected to be) two hours or more per regular workday shall be deemed to have met the substantial hours of unscheduled duty requirement for entitlement to availability pay. This average will be computed by dividing the total unscheduled duty hours for the annual period (numerator) by the number of regular workdays (denominator).
It shall be management's responsibility to ensure that every criminal investigator's unscheduled hours of duty are sufficient to meet the substantial hours requirement. This will generally be accomplished by placing the investigator in availability status. Moreover, while availability pay may be based on some hours of unscheduled duty (on a regular workday) during which no work is performed, to the extent feasible each criminal investigator shall perform actual work as opposed to merely being available for work.
Voluntary Opt-Out
A criminal investigator may make a written request that no overtime work (including unscheduled duty) be assigned for a designated period of time because of personal or family hardship, e.g., a serious continuing illness that requires the investigator to care for a family member. At management's discretion, the investigator may be required to provide appropriate justification, e.g., medical certification of the illness which supports the need to be relieved of overtime work including unscheduled duty. In opting out, the investigator must attest in writing to the understanding that availability pay will not be paid for the period of opt-out. An extension of the opt-out period may be granted at management's discretion.
Certification
Initial certification. On the day of appointment, or on completion of officially approved initial training, the investigator and a management official with delegated authority shall make an initial certification to the head of the agency that the investigator is expected to meet the substantial hours requirement during the next 12 months. The sample forms provided at the end of this Section may be used for this purpose and the annual certification required in the heading below. A similar certification will be made for a criminal investigator who will begin receiving availability pay after a period of nonreceipt.
Annual certification. Annually, on or about October 1, each criminal investigator and a manager with delegated authority shall make an annual certification to the head of the agency that the investigator currently meets and is expected to continue to meet the substantial hours requirement in the upcoming 12 months.
Starting and stopping availability pay. An authorized official may start or stop availability pay by processing of an SF-52, Request for Personnel Action. If a certification is issued belatedly or lapses due to administrative error, the situation may be corrected retroactively. In cases of partial payments, the procedures outlined in the Time and Attendance Handbook will apply.
When certification no longer applies. A certification no longer applies when an investigator leaves Federal service, is employed by another agency, moves out of a qualifying position, or opts-out.
Suspension of Certification
Management may suspend or deny certification if a criminal investigator fails to perform scheduled duty which is assigned, which the investigator reports as worked, or which the investigator is unable to perform for a period of time because of health reasons. If certification is cancelled or denied, the investigator's entitlement to availability pay will be suspended for an appropriate period of time. Any new certification will be effective prospectively. If a criminal investigator appeals the suspension or cancellation of certification, the original certification shall be made part of the appeals file.
Appeal of a Suspension of Availability Pay
An involuntary suspension of availability pay shall be deemed a reduction in pay under 5 U.S.C. 7512 and shall be effected under adverse action procedures. An investigator whose certification is cancelled with involuntary suspension of availability pay may appeal the action following negotiated or agency adverse action appeals procedures, as appropriate.
Payment of Availability Pay
Availability pay will be paid for any period during which the investigator receives basic pay, including periods of approved training, authorized travel, or approved leave with pay (including military and court leave).
At management's discretion, availability pay may be paid during basic training provided in the first year of service and for periods of excused absence with pay (e.g., in an evacuation or prolonged facility closure) except that payment is mandatory during a period of excused absence for relocation. The amount of availability pay is not affected by a holiday during the pay period. By definition, Sunday pay and night differential may not be based on availability hours.
Relationship to Other Payments
Availability pay is in lieu of annual premium pay for standby duty or administratively uncontrollable overtime. It does not affect an investigator's entitlement to premium pay for overtime based on hours other than unscheduled hours of duty (see Definitions).
It shall be considered part of basic pay for advances of pay (5 U.S.C. 5524a), severance pay, worker's compensation, retirement benefits, the Thrift savings Plan, life insurance, and lump-sum leave payments.
Availability pay is subject to the biweekly limitation on premium pay (5 U.S.C. 5547(c), the aggregate limitation on pay 5 U.S.C. 5307), garnishment for child support and alimony (5 CFR 581) and garnishment for commercial debts (5 CFR 582).
Criminal Investigator's Certification
I understand that as a condition of receiving availability pay under 5 U.S.C.5545a, I will be required, over the course of the next 12 months, to average not less than 2 hours of unscheduled duty per regular workday. I understand that failing to average at least 2 hours of unscheduled duty per regular workday could result in an overpayment and that hours of work which are misreported or not performed when scheduled could result in adverse action and decertification for availability pay.
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Investigator's Signature and Date
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Supervisor's Signature and Date
Supervisory/Managerial Certification – Annual
This certifies that, over the course of the last 12 months, the criminal investigators whose certifications are attached met all requirements for availability pay.
I expect the criminal investigators whose certifications are attached to average at least 2 hours of unscheduled duty per regular workday.
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Signature and Date
Attachments
