§8114 — Title 5 Government Organization and Employees | U.S. Code

Summary

Explains how to figure the pay amount used to decide federal disability or death benefits. "Overtime pay" means pay for hours beyond the usual workweek. "Year" means 12 calendar months, or an equivalent period set by the Secretary of Labor. Monthly pay at the time of injury is one-twelfth of the employee’s average annual earnings. The weekly equivalent is one-fifty-second of that average. For up to 90 calendar days of total disability after the injury, the Secretary of Labor may instead use the worker’s actual daily wage and pay for the days the worker would have worked. If the worker was in the same job most of the year before the injury and had a fixed annual rate, use that rate. If the annual rate was not fixed, multiply the daily wage (or its average if it varied) by 300 for a 6-day week, 280 for a 5½-day week, or 260 for a 5-day week. If the worker did not work the full prior year but the job would normally last a full year, use the average for similar employees in the area. If none of these fit, pick a reasonable annual amount based on past federal pay and similar employees, but not less than 150 times the average daily wage earned in the year before the injury. For unpaid or very low-pay service, apply the same rules as far as possible but do not exceed the GS–15 minimum pay; if a fair amount still cannot be found, use a reasonable value not over $3,600 a year. Include the money value of food, housing, other pay-in-kind that can be valued, and certain premium pay under federal pay law. Do not count overtime, extra pay or allowances paid outside the United States for cost-of-living or similar reasons, or bonuses for extraordinary or hazardous wartime service.

Title 5, §8114

Government Organization and Employees — Source: USLM XML via OLRC

(a)For the purpose of this section—

(1)“overtime pay” means pay for hours of service in excess of a statutory or other basic workweek or other basic unit of worktime, as observed by the employing establishment; and

(2)“year” means a period of 12 calendar months, or the equivalent thereof as specified by regulations prescribed by the Secretary of Labor.

(b)In computing monetary compensation for disability or death on the basis of monthly pay, that pay is determined under this section.

(c)The monthly pay at the time of injury is deemed one-twelfth of the average annual earnings of the employee at that time. When compensation is paid on a weekly basis, the weekly equivalent of the monthly pay is deemed one-fifty-second of the average annual earnings. However, for so much of a period of total disability as does not exceed 90 calendar days from the date of the beginning of compensable disability, the compensation, in the discretion of the Secretary of Labor, may be computed on the basis of the actual daily wage of the employee at the time of injury in which event he may be paid compensation for the days he would have worked but for the injury.

(d)Average annual earnings are determined as follows:

(1)If the employee worked in the employment in which he was employed at the time of his injury during substantially the whole year immediately preceding the injury and the employment was in a position for which an annual rate of pay—

(A)was fixed, the average annual earnings are the annual rate of pay; or

(B)was not fixed, the average annual earnings are the product obtained by multiplying his daily wage for the particular employment, or the average thereof if the daily wage has fluctuated, by 300 if he was employed on the basis of a 6-day workweek, 280 if employed on the basis of a 5½-day week, and 260 if employed on the basis of a 5-day week.

(2)If the employee did not work in employment in which he was employed at the time of his injury during substantially the whole year immediately preceding the injury, but the position was one which would have afforded employment for substantially a whole year, the average annual earnings are a sum equal to the average annual earnings of an employee of the same class working substantially the whole immediately preceding year in the same or similar employment by the United States in the same or neighboring place, as determined under paragraph (1) of this subsection.

(3)If either of the foregoing methods of determining the average annual earnings cannot be applied reasonably and fairly, the average annual earnings are a sum that reasonably represents the annual earning capacity of the injured employee in the employment in which he was working at the time of the injury having regard to the previous earnings of the employee in Federal employment, and of other employees of the United States in the same or most similar class working in the same or most similar employment in the same or neighboring location, other previous employment of the employee, or other relevant factors. However, the average annual earnings may not be less than 150 times the average daily wage the employee earned in the employment during the days employed within 1 year immediately preceding his injury.

(4)If the employee served without pay or at nominal pay, paragraphs (1), (2), and (3) of this subsection apply as far as practicable, but the average annual earnings of the employee may not exceed the minimum rate of basic pay for GS–15. If the average annual earnings cannot be determined reasonably and fairly in the manner otherwise provided by this section, the average annual earnings shall be determined at the reasonable value of the service performed but not in excess of $3,600 a year.

(e)The value of subsistence and quarters, and of any other form of remuneration in kind for services if its value can be estimated in money, and premium pay under section 5545(c)(1) of this title are included as part of the pay, but account is not taken of—

(1)overtime pay;

(2)additional pay or allowance authorized outside the United States because of differential in cost of living or other special circumstances; or

(3)bonus or premium pay for extraordinary service including bonus or pay for particularly hazardous service in time of war.

Notes & Related Subsidiaries

Historical and Revision Notes

DerivationU.S. CodeRevised Statutes andStatutes at Large 5 U.S.C. 762.Sept. 7, 1916, ch. 458, § 12, 39 Stat. 746. Oct. 14, 1949, ch. 691, § 203, 63 Stat. 862. In subsection (d)(4), the words “the minimum rate of basic pay for GS–15” are substituted for “the basic rate of annual compensation specified under the Classification Act of 1949, as amended, for positions in grade GS–15 at the bottom of such grade”. In former section 762, the words “Classification Act of 1949” were substituted for “Classification Act of 1923” on authority of § 1106(a) of the Act of Oct. 28, 1949, ch. 782, 63 Stat. 972. Administration of this subchapter was transferred to the Secretary of Labor by section 1 of 1950 Reorg. Plan No. 19, 64 Stat. 1271 (see section 8145). Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

Editorial Notes

Amendments

1966—Subsec. (e). Pub. L. 89–737 inserted reference to premium pay under section 5545(c)(1) of this title.

Statutory Notes and Related Subsidiaries

Effective Date

of 1966 Amendment Pub. L. 89–737, § 4, Nov. 2, 1966, 80 Stat. 1164, which provided that the

Amendments

made by this Act [amending this section and section 8331 and 8704 of this title] apply with respect to premium pay payable from and after the first day of the first pay period which begins after the date of enactment of this Act [Nov. 2, 1966], was repealed by Pub. L. 90–83, § 10(b), Sept. 11, 1967, 81 Stat. 223.

§8114 Computation of Pay

Summary

Title 5, §8114

Notes & Related Subsidiaries

Historical and Revision Notes

Editorial Notes

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Amendments

Citations & Metadata