1. Title 38 premium pay is authorized for employees paid under the General Schedule (GS/GM) pay system and employees in the NIH Clinical Center’s Clinical Research Support (CRS). The CRS program no longer supports new hires, but some Clinical Center employees remain in the program and receive premium pay in accordance with Title 38 premium pay rules. Employees must provide direct patient care services or services incident to direct patient care and must be in one of the approved occupations for receipt of Title 38 premium pay (See Appendix 1). No other occupations are approved to receive Title 38 premium pay at the NIH. Employees may be on permanent or temporary appointments, and may be on full-time, part-time and intermittent schedules.

1. Medical or Dental Officers who have been approved to receive Title 38 Physician and Dentist Pay
2. Senior Executive Service (SES), Executive Schedule (EX), Senior Level/Scientific (SL/ST), Senior Biomedical Research and Biomedical Product Assessment Service (SBRBPAS), or other senior-level systems positions
3. Positions employed or paid under a Title 42 authority (with the exception of CRS legacy employees in the Clinical Center)
4. Other Administratively Determined (AD) positions, (with the exception of CRS legacy employees in the Clinical Center) or
5. Public Health Service Commissioned Corps (CC) officers

1. Employees in positions covered by NIH’s list of occupations that have been approved to receive Title 38 premium pay must be paid accordingly when scheduled and approved to work during hours covered by the premium pay components, including overtime, night differential, Saturday/Sunday differential, holiday pay, and on-call pay.
2. All forms of Title 38 premium pay are available to all tours of duty (full-time, part-time, and intermittent).
3. Title 38 premium pay replaces the comparable premium pay under Title 5, Chapter 55, Subchapter V. Employees do not receive both Title 38 and Title 5 premium pay rates.
4. Employees in occupations not approved for Title 38 premium pay will receive premium pay in accordance with Title 5 regulations and the Fair Labor Standards Act (FLSA).

The following guidance derives from 38 U.S.C., Chapter 74, regarding the payment of premium pay and represents the NIH policy on Title 38 premium pay. A summary of the Title 38 premium pay rates is provided in the link in Appendix 2.

1. Title 38 Premium Pay Hourly Rate of Pay
   1. For purposes of computing the Title 38 overtime rate and all other premium pays, the Title 38 premium pay hourly rate of pay is used. This rate is derived by dividing the employee’s annual rate of basic pay by 2080. The Title 38 premium pay hourly rate differs from the regular hourly rate of basic pay used for all other pay administration purposes, which is calculated by dividing the annual rate of basic pay by 2087.
2. Overtime Rate
   1. The Title 38 overtime rate is one and a half times the premium pay hourly rate of pay. Other than for employees on a Compressed Work Schedule, overtime is received for service in excess of eight hours in one day or forty hours in an administrative workweek.
   2. Alternative Work Schedules: For employees on a Compressed Work Schedule, overtime refers to all officially ordered and approved hours of work in excess of the schedule. For employees on a Flexible Work Schedule, overtime refers to hours worked beyond eight hours in one day or forty hours in an administrative workweek that were officially ordered in advance. For example, an employee who participates in a Compressed Work Schedule of four ten-hour workdays in one week will receive Title 38 overtime for hours ordered and approved in excess of ten hours in one day or forty hours in the week. An employee with a Flexible Work Schedule will receive Title 38 overtime for hours ordered and approved in excess of eight hours in any one day or forty hours in an administrative workweek.
   3. Overtime must be at least fifteen minutes long in one day to be creditable for overtime pay. Overtime less than fifteen minutes long in one day is not creditable for overtime pay.
3. Holiday Pay
   1. The Title 38 holiday pay rate is the regular hourly rate plus the premium pay hourly rate of pay. For example, one hour of Title 38 holiday pay consists of the sum of annual pay divided by 2087 hours (the regular hourly rate) and annual pay divided by 2080 hours (the Title 38 premium pay hourly rate). All hours worked on a holiday, including overtime hours, are paid at this rate.
   2. Employees who are required to work on a holiday are entitled to at least two hours of holiday pay even if they work less than two hours.
   3. Holiday pay is payable for legal federal holidays and for other days declared to be a holiday by federal statute or Executive Order. When a holiday falls on a non-workday outside of a full-time employee’s workweek, the employee is entitled to holiday pay for work performed on his/her designated “in lieu of” holiday. For instance, if New Year’s Day (a federal holiday) falls on a Sunday and is outside the employee’s workweek, the “in lieu of” holiday is the following employee work day and the employee is entitled to holiday pay for any hours worked that day. However, an employee will not have an “in lieu of” holiday if the employee works on the actual holiday (Sunday), as the employee is paid holiday premium pay for work on that day. For instance, if the employee works on New Year’s Day, the employee is paid holiday pay for working on Sunday, but does not have an “in lieu of” holiday and is paid the regular hourly rate of pay for hours worked on Monday.
4. Night Differential
   1. Night differential is an additional 10 percent of the premium pay hourly rate of pay. Employees receive night differential premium pay for their entire tour of duty if at least four hours are performed between 6 p.m. and 6 a.m. If less than four hours are performed between 6 p.m. and 6 a.m., night differential premium pay is paid for only the work performed during those hours.
5. Sunday Differential
   1. Sunday differential is an additional 25 percent of the premium pay hourly rate of pay. Employees receive Sunday differential premium pay for the entire scheduled tour that includes service between midnight on Saturday and midnight on Sunday.
6. Saturday Differential
   1. Saturday differential is an additional 25 percent of the premium pay hourly rate of pay. Employees receive Saturday differential premium pay for the entire scheduled tour that includes service between midnight on Friday and midnight on Saturday.
7. On-Call Pay
   1. On-call pay is granted when an employee is scheduled as ready to return to work when contacted and ready for duty either outside regular work hours, or on a holiday. On-call pay is ten percent of the employee’s overtime rate of pay for each hour of on-call duty on a designated federal holiday or for overtime on-call duty.
   2. Employees who are on-call must be accessible by phone or other device, available to return to the worksite within a designated response time, and be in a physical condition that allows them to perform work. In the event of incapacitation or unavailability during a period of on-call duty, an employee must contact the supervisor to be released from on-call duty. If released from on-call duty, the employee will not be paid on-call pay for the period of time they were relieved from duty.
   3. On-call pay is suspended during periods of actual call-back overtime or call-back holiday duty. On-call resumes after the call-back period is complete if there is any scheduled on-call duty remaining. See section ‘h.’ for a definition of call-back pay.
   4. Relationship of Title 38 On-Call pay to Regularly Scheduled Standby Duty Pay under Title 5
      1. Regularly scheduled standby duty pay is premium pay approved for a position on an annual basis under 5 U.S.C. 5545(c)(1). It is paid when an employee is regularly required to remain at or within the confines of his/her worksite during longer-than-ordinary periods of duty, a substantial part of which consists of remaining in standby status rather than performing work.
      2. While both Title 5 standby duty pay and Title 38 on-call pay provide employees are paid to stand ready to work, the conditions under which the premium pay is granted and the restrictions on the employee’s location and activities differ significantly.
      3. Standby duty pay is paid on an annual basis for regularly scheduled overtime work, i.e., overtime work regularly assigned and scheduled before the beginning of the administrative workweek. Standby duty pay is determined by a percentage of the employee’s annual basic salary which may not exceed 25% of the basic rate of a GS-10, Step 1 employee, including any applicable locality-based comparability payment or special rate. Conversely, on-call pay is paid on a bi- weekly basis for on-call duty on an overtime basis or on a holiday. On-call duty does not need to be regularly scheduled, i.e., it may be scheduled at any time before it is worked.
      4. While on standby duty, employees are not allowed to leave their worksite. By contrast, under Title 38 on-call pay, employees may leave their worksite as long as they carry a phone or other device on which they may be quickly reached.
8. Call-Back Pay
   1. Call-back pay is paid for work performed outside regular work hours for which an employee is required to remain at the worksite at the end of the tour, return to the worksite to perform, or report on a day for which they were not scheduled to work. Part-time and intermittent employees are eligible for call-back pay as well. Call-back pay starts when the employee reports to work. If the employee was on-call prior to the call-back, on-call pay is suspended during the time an employee works the call-back. Call-back is paid for a minimum of two hours and is paid at the Title 38 overtime rate for service in excess of eight hours in a day, the employee’s compressed work schedule or 40 hours in a week. For non-overtime hours, call-back pay is paid at the regular rate or at the holiday rate for service on a holiday.

1. When compensatory time-off has been authorized in lieu of overtime pay, the amount of the compensatory time off will equal the amount of time worked in an overtime status, except for call-back overtime, in which case the employee is entitled to a minimum of two hours of compensatory time-off for each call back. Compensatory time-off may only be authorized when voluntarily requested in writing by the employee.

1. Employees eligible for Title 38 premium pay may receive two or more types of premium pay for the same period of service. For example, an employee scheduled to work from 3 p.m. Sunday to 11 p.m. on Sunday is eligible for both Sunday differential at twenty five percent and night differential at ten percent of the employee’s Title 38 premium pay hourly rate of basic pay.
2. Employees who perform overtime on a holiday are entitled to the holiday rate of pay for each hour of overtime work, instead of the Title 38 base overtime rate of pay for those hours. Other forms of premium pay continue to be available for work on a holiday, e.g., night differential, weekend differential, etc.

1. Eligible employees may receive Title 38 premium pay even if the receipt of this premium pay causes the employees’ aggregate pay for any pay period to exceed the maximum rate payable to GS-15 (GS-15, step 10). The Title 5 bi-weekly limitation on premium pay, under 5 U.S.C. 5547(a) and 5 CFR 550.105, does not apply to Title 38 premium pay.

1. Determines the occupations eligible for Title 38 premium pay in accordance with Title 38, Chapter 74.
2. Oversees the NIH Title 38 premium pay program and ensures compliance with law and with the OPM-HHS Delegation Agreement.

1. Communicate Title 38 premium pay eligibility with program area upon recruitment, new hire actions or other applicable personnel actions. Inform the program area if there are any changes to Title 38 premium pay eligibility if any employee converts to another position.
2. Accurately record Title 38 premium pay eligibility in the HR processing system when processing all HR actions for eligible employees.

1. Ensure eligible employees’ profiles in the NIH time and attendance system reflect eligibility for Title 38 premium pay. Advise supervisors and employees regarding Title 38 premium pay policies and procedures.

1. Ensure employees who are eligible for Title 38 premium pay are advised how Title 38 premium pay differs from Title 5 premium pay. Verify and approve the hours worked by employees in the NIH time and attendance system.