HR Order DOJ1200.1: Part 2. Compensation: Chapter 2-1, Availability Pay (August 25, 1998)

A. References.

Statute	5 U.S.C. 5545a
Code of Federal Regulations	5 CFR, Part 550, Subpart A
Guidance	Sample Availability Pay Certifications Travel Time
Key terms	Availability Pay Unscheduled Duty Hours Certification

B. Policy.

1. This chapter applies to Department employees who are officially assigned to a position properly classified in the GS-1811 Criminal Investigating Series under the Position Classification Standards issued by OPM.
    
2. To the extent feasible, management will ensure that a substantial majority of the hours needed to meet the 2-hour average described in 5 CFR 550.183(a) are hours actually worked.
    
3. Availability hours under 5 CFR 550.182(c) will NOT include hours during which a criminal investigator is employed outside the Department.
    
4. Except as provided in paragraph B.5. of this chapter, availability pay will be paid during paid periods of--
    
   1. Absence (such as annual, sick, military, or court leave, excused absence, continuation of pay, and holidays),
       
   2. Officially approved training, and
       
   3. Official travel.
5. Bureau heads will determine whether availability pay is paid during officially approved initial training provided during the first year of service in each authorized position. In making this determination, the bureau head will consider:
    
   1. The extent to which the training includes unscheduled duty hours, and
       
   2. Past practices with respect to payment of AUO pay.
       
6. For a criminal investigator who is receiving availability pay, overtime work scheduled in advance of the administrative workweek that is in excess of 10 hours on a day during the basic 40-hour workweek, or any overtime work scheduled in advance of the workweek that is on a day outside the basic 40-hour workweek, is compensated under 5 U.S.C. 5542 and 5 CFR 550.111.

C. Documentation and Reporting.

1. Certification (1994). Except as provided in paragraphs 5 and 6 of this section, each criminal investigator and a manager or supervisor in the criminal investigator's chain of command must have certified, in writing, by October 30, 1994, that the criminal investigator is expected to meet the required 2-hour average of unscheduled duty hours during the next 12 months.
    
2. Certification--New Appointments. Except as provided in paragraphs C.5. and C.6. of this chapter, no later than 30 days after he or she begins to receive availability pay, each criminal investigator and a manager or supervisor in the criminal investigator's chain of command will certify in writing that the criminal investigator is expected to meet the required 2-hour average of unscheduled duty hours during the next 12 months.
    
3. Certification--Annual. Except as provided in paragraphs C.5. and C.6. of this chapter, beginning in leave year 1995, each criminal investigator and a manager or supervisor in the criminal investigator's chain of command will annually certify in writing as to whether the criminal investigator--
    
   1. Met the required 2-hour average of unscheduled duty hours for the period since the last certification, and
       
   2. Is expected to meet the required 2-hour average of unscheduled duty hours during the next 12 months.
4. Retaining Certifications. Each certification will be retained, as provided by the bureau head until one month after the next annual certification is completed.

   EXCEPTION: When a criminal investigator appeals a decertification under paragraph C.5. or C.6. of this chapter, the original certification will be retained as part of the adverse action file.

5. Decertification (Suspension). Except as provided in paragraph C.6. of this chapter, if a criminal investigator, despite being offered the opportunity to work, fails to meet the required 2-hour average of unscheduled duty hours for the period since the last certification, or is expected to fail to meet the required 2-hour average of unscheduled duty hours during the next 12 months, the criminal investigator will be notified of management's intent to suspend availability pay under adverse action procedures, as provided by 5 U.S.C. 7513(b).
    
6. Decertification (Discontinuance). If management, at its sole discretion, grants a criminal investigator's voluntary written request to be excused from the requirement to average at least 2 unscheduled duty hours per regular workday, the employee may waive in writing his or her right to adverse action procedures under 5 U.S.C. 7513(b). Such a request will be granted only due to a personal or family hardship, and must be for a specified time period (which may be extended). The bureau will discontinue availability pay upon receipt of a written waiver request.
    
7. Resuming Payment. When availability pay is suspended under 5 CFR 550.182(f) or temporarily discontinued under 5 CFR 550.182(e), payment will resume when, in management's judgment, the criminal investigator has demonstrated that he or she is likely to meet the 2-hour requirement in 5 CFR 550.183(a) over the next 12 months. Management may make this determination before the end of the period specified under 5 CFR 550.182(e).
    
8. Suspending or Discontinuing. Suspending or discontinuing availability pay does NOT restrict management's right to order a criminal investigator to perform overtime work under normal overtime rules.

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The following are suggested formats for preparing the certifications required by Part 2, Chapter 1, "Availability Pay" of DOJ Order 1200.1.

#1 Supervisory/Managerial Certification--Initial

#2 Criminal Investigators' Certification--Initial

#3 Supervisory/Managerial Certification--Annual

#4 Criminal Investigators' Certification--Annual

 

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#1 Supervisory/Managerial Certification--Initial

 

This certifies that, over the course of the next 12 months, I expect the criminal investigators on the attached list [attach Certification #2], who are officially assigned to positions properly classified in the GS-1811 Criminal Investigating Series under the Position Classification Standards issued by the U.S. Office of Personnel Management (formerly the U.S. Civil Service Commission), to average at least 2 hours of unscheduled duty per regular workday.

 

Signature and Date

 

Attachment

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#2 Criminal Investigators' Certification--Initial

The undersigned criminal investigators understand that as a condition of receiving availability pay under 5 U.S.C. 5545a, we will be required, over the course of the next 12 months, to perform or be available to average at least 2 hours of unscheduled duty per regular workday. We understand that failing to average at least 2 hours of unscheduled duty per regular workday may result in an overpayment.

 

Signature and Date

 

Signature and Date

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#3 Supervisory/Managerial Certification--Annual

This certifies that, over the course of the last 12 months, the criminal investigators on the attached list [attach Certification #4], who were officially assigned to positions properly classified in the GS-1811 Criminal Investigating Series under the Position Classification Standards issued by the U.S. Office of Personnel Management (formerly the U.S. Civil Service Commission), averaged at least 2 hours of unscheduled duty per regular workday.

Over the course of the next 12 months, I expect the criminal investigators on the attached list to continue to average at least 2 hours of unscheduled duty per regular workday.

 

Signature and Date

 

Attachment

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#4 Criminal Investigators' Certification--Annual

This certifies that, over the course of the last 12 months, the undersigned criminal investigators averaged at least 2 hours of unscheduled duty per regular workday. We understand that failing to average at least 2 hours of unscheduled duty per regular workday may result in an overpayment.

We understand that as a condition of continuing to receive availability pay under 5 U.S.C. 5545a, we will be required, over the course of the next 12 months, to average at least 2 hours of unscheduled duty per regular workday.

 

Signature and Date

 

Signature and Date

Do employees receive availability pay for hours in agency-approved travel status? Yes. Availability pay is paid during all periods of travel falling within the basic 40-hour workweek. 5 U.S.C. 5545a (f)(1)(C) Note: Availability pay is paid only for hours for which basic pay is paid. Do hours in agency-approved travel status count toward determining whether a day is a "regular workday?" No. Travel hours do not count toward the minimum 4-hour requirement for a regular workday. 5 CFR 550.183(b)(3) Do hours in agency-approved travel status count toward the required 2-hour average of "unscheduled duty hours? Only travel hours outside the basic 40-hour workweek that meet the "hours of employment" test in 5 U.S.C. 5542(b)(2) are "unscheduled duty hours." 5 U.S.C. 5545a (a)(3) Example: travel to an administratively uncontrollable event