Home Media Center News Releases

Washington, D.C.—A coalition of federal labor unions representing more than 800,000 federal workers and led by the National Treasury Employees Union (NTEU) is pressing for a rehearing by a federal appeals court of a decision that could legitimize the concept of forced but unpaid overtime work.

The decision by a three-judge panel of the U.S. Court of Appeals for the Federal Circuit potentially denies overtime pay for current and former Department of Justice (DOJ) attorneys because they did not obtain written approval. The decision by the appeals court overturns a 2002 decision by the U.S. Court of Federal Claims which held that a class of some 9,000 DOJ attorneys had worked overtime with at least tacit approval from management and were entitled to overtime pay for it.

The appeals court panel ruled in June, however, that the DOJ attorneys were not entitled to the extra pay because the overtime had not been officially ordered or approved in writing, as required by a regulation of the Office of Personnel Management (OPM).

Along with the American Federation of Government Employees (AFGE) and the National Federation of Federal Employees (NFFE), NTEU filed a brief in support of the plaintiffs’ petition asking either that the panel or the entire court rehear the matter.

This decision, said NTEU President Colleen M. Kelley, “creates a very serious barrier” to employees’ ability to recover the overtime pay to which they are entitled under federal law.

Moreover, she said, the ruling “has a direct impact on NTEU-represented employees” in the Internal Revenue Service Office of Chief Counsel. NTEU is pursuing a class action suit on behalf of Chief Counsel attorneys nationwide, claiming violations of the overtime provisions of the 1945 Federal Employees Pay Act (FEPA)—the same statute involved in the DOJ case.

The petition filed by the unions argues that the decision of the appeals court panel “impermissibly permits federal agencies to exempt themselves” from the requirements of FEPA by declining to put in writing their orders to work overtime; that it forces employees into the untenable position of having to choose between working without pay or refusing to work beyond their regularly scheduled tour of duty; and that the judges committed legal error in giving retroactive effect to an OPM regulation that had lacked the force of law for five decades.

The unions noted that while the OPM regulation in question does provide that agencies are only required to pay overtime under FEPA for work approved in writing by an official to whom authority to approve overtime has been delegated, various court decisions essentially had reversed the OPM position.

As the petition forcefully points out, the three-member appeals court panel itself acknowledged in its decision that “the binding precedent from its predecessor court” had held that the writing requirement was “invalid as inconsistent with the purpose of FEPA.”

And this was the state of the law for nearly five decades, the unions argue. The panel’s purported reversal of that interpretation, the unions said, subverts FEPA entirely because “it leaves it to the whim of high-level agency managers to decide if and when to authorize FEPA overtime compensation in writing.”

Moreover, they said, it is unfair to say now that employees who worked overtime made necessary by the dictates of their job—and with the expectation that it would be paid—should somehow have known the legal interpretation of the OPM regulations would be overturned—and thus should have known to obtain written permission to work overtime.