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Washington, D.C.—The National Treasury Employees Union (NTEU) today asked the U.S. Supreme Court to overturn an appeals court decision permitting government agencies to exempt themselves from a federal law requiring them to pay overtime to federal employees.

In an amicus brief filed in a class action suit involving attorneys of the Department of Justice (DOJ), NTEU said the appeals court’s approval of a DOJ policy of prohibiting payment of overtime unless the person working the overtime obtains written approval opens “an enormous loophole” in the mandatory overtime provisions of the Federal Employees Pay Act (FEPA).

NTEU President Colleen M. Kelley said allowing a court decision to stand that permits such treatment of federal workers would be “clearly unjust.”

FEPA sets the overtime rules for roughly one million federal workers not covered by overtime provisions of the Fair Labor Standards Act (FLSA)—including thousands represented by NTEU.

The 1945 law dictates that federal workers are entitled to compensation for overtime hours worked that are “officially ordered or approved.” An Office of Personnel Management (OPM)

regulation, however, provides that overtime under FEPA is compensable only if it was ordered or

approved in writing by an official to whom authority to approve overtime has been delegated.

DOJ attorneys, who work considerable unpaid overtime because of their demanding jobs, sued over their department’s interpretation and application of the OPM regulation. The U.S. Court of

Appeals for the Federal Circuit, however, upheld the department’s position.

The NTEU brief argues that the appeals court’s decision gives the federal government “carte blanche to exploit its professional workforce by requiring untold hours of overtime work without compensation.”

The brief adds that this “unfettered discretion” given to management to decide whether to approve any compensation for overtime work “surely is not the scheme that Congress intended to create when it made overtime pay a statutory entitlement for virtually all federal employees.”

For five decades, NTEU argued, federal workers, particularly professionals like attorneys who face special time constraints imposed by judges and courts, have been able to rely on FEPA for overtime pay for time their agencies induced them to work, regardless of whether there was a written order or formal approval for the overtime. “Those settled expectations have been undone,” the union told the Court.

“It is incomprehensible,” NTEU said in its brief, “that Congress would enact a law establishing special overtime rules for federal employees…and then allow OPM to grant agencies the authority to nullify that law.”

Moreover, NTEU said, the impact is far more than theoretical. Pointing to the clear evidence in the class-action suit, NTEU told the Justices that the appeals court suggestion that employees can merely refuse to work overtime is “pure fantasy.” The brief notes that DOJ gave lower performance ratings and fewer performance awards, among other penalties, to attorneys who declined to work uncompensated overtime.

This shows, the union said, that a class member’s decision “whether to work uncompensated overtime significantly affects his or her working environment.”

NTEU is the largest independent federal union, representing some 150,000 employees in 30 agencies and departments.