#### § 208.39 Reimbursement for personnel costs incurred during Activation.

(a) *Compensation.* DHS will reimburse the Sponsoring Agency for costs incurred for the compensation of each Activated System Member during Activation. Reimbursement of compensation costs for Activated Support Specialists will be limited to periods of time during which they were actively supporting the Activation or traveling to or from locations at which they were actively supporting the Activation. The provisions of [§ 208.40 of this part](/on/2024-09-09/title-44/part-208/section-208.40) govern costs incurred for providing fringe benefits to System Members.

(b) *Public Safety Exemption not applicable.* DHS will reimburse Sponsoring Agencies for costs incurred by Non-Exempt System Members in accordance with [29 U.S.C. 207(a)](https://www.govinfo.gov/link/uscode/29/207) of the Fair Labor Standards Act, without regard to the public safety exemption contained in [29 U.S.C. 207(k)](https://www.govinfo.gov/link/uscode/29/207). In other words, DHS will reimburse Sponsoring Agencies on an overtime basis for any hours worked by Non-Exempt System Members greater than 40 hours during a regular workweek.

(c) *Tour of duty.* The tour of duty for all Activated System Members will be 24 hours. DHS will reimburse the Sponsoring Agency for salary and overtime costs incurred in compensating System Members for meal periods and regularly scheduled sleep periods during Activation. Activated System Members are considered “on-duty” and must be available for immediate response at all times during Activation.

(d) *Regular rate.* The regular rate for purposes of calculating allowable salary and overtime costs is the amount determined in accordance with [§ 208.39(e)(1)](/on/2024-09-09/title-44/part-208/section-208.39#p-208.39(e)(1)) through [(3) of this subpart](/on/2024-09-09/title-44/part-208/section-208.39#p-208.39(e)(3)).

(e) *Procedures for calculating compensation during Activation.* A Sponsoring Agency or Participating Agency must:

(1) Convert the base hourly wage of any Non-Exempt System Member regularly paid under [29 U.S.C. 207(k)](https://www.govinfo.gov/link/uscode/29/207) to its equivalent for a 40-hour work week;

(2) Convert the annual salary of any salaried Non-Exempt System Member to its hourly equivalent for a 40-hour workweek;

(3) Calculate the daily compensation of Exempt System Members based on their current annual salary, exclusive of fringe benefits;

(4) Calculate the total number of hours worked by each System Member to be included in the Sponsoring Agency's request for reimbursement; and

(5) Submit a request for reimbursement under [§ 208.52 of this part](/on/2024-09-09/title-44/part-208/section-208.52) according to the following table:

| If the Sponsoring Agency or Participating Agency \* \* \* | And the Sponsoring Agency or Participating Agency \* \* \* | Then the following compensation costs are allowable: |
| --- | --- | --- |
| (i) Customarily and usually compensates Exempt System Members by paying a salary, but not overtime, | Does not customarily and usually grant compensatory time or other form of overtime substitute to Exempt System members | The daily compensation equivalent calculated under [§ 208.39(e)(3) of this part](/on/2024-09-09/title-44/part-208/section-208.39#p-208.39(e)(3)) for each Activated Exempt System Member for each full or partial day during Activation. |
| (ii) Customarily and usually compensates Exempt System Members by paying a salary but not overtime | Customarily and usually awards compensatory time or other overtime substitute for Exempt System Members for hours worked above a predetermined hours threshold (for example, the Sponsoring Agency customarily and usually grants compensatory time for all hours worked above 60 in a given week) | The daily compensation equivalent calculated under [§ 208.39(e)(3) of this part](/on/2024-09-09/title-44/part-208/section-208.39#p-208.39(e)(3)) for each Activated Exempt System Member for each full or partial day during Activation AND the dollar value at the time of accrual of the compensatory time or other overtime substitute for each Activated Exempt System Member based on the duration of the Activation. |
| (iii) Customarily and usually compensates Exempt System Members by paying a salary and overtime, | Customarily and usually calculates overtime for Exempt System Members by paying a predetermined overtime payment for each hour worked above a predetermined hours threshold, | The daily compensation equivalent calculated under [§ 208.39(e)(3) of this part](/on/2024-09-09/title-44/part-208/section-208.39#p-208.39(e)(3)) for each Activated Exempt System Member for each full or partial day during Activation AND the predetermined overtime payment for each hour during the Activation above the previously determined hours threshold for each Activated Exempt System Member. |
| (iv) Customarily and usually compensates Non-Exempt System Members by paying overtime after 40 hours per week, | Does not customarily and usually grant compensatory time or other form of overtime substitute to Non-Exempt System members, | For each seven-day period during the Activation, the hourly wage of each Activated Non-Exempt System Member for the first 40 hours AND the overtime payment for each Activated Non-Exempt System Member for every hour over 40. |
| (v) Customarily and usually compensates Non-Exempt System Members according to a compensation plan established under [29 U.S.C. 207(k)](https://www.govinfo.gov/link/uscode/29/207), | Does not customarily and usually grant compensatory time or other form of overtime substitute to Non-Exempt System Members, | For each seven-day period during the Activation, the hourly wage equivalent of each Activated Non-Exempt System Member calculated under [§ 208.39(e)(1) of this part](/on/2024-09-09/title-44/part-208/section-208.39#p-208.39(e)(1)) for the first 40 hours AND the overtime payment equivalent for each Activated Non-Exempt System Member calculated under [§ 208.39(e)(1) of this part](/on/2024-09-09/title-44/part-208/section-208.39#p-208.39(e)(1)) for every hour over 40. |
| (vi) Activates Personnel, who are customarily and usually paid an hourly wage according to the Maximum Pay Rate Table, | | For each seven-day period during the Affiliated Activation, the hourly wage for each Activated Affiliated Personnel for the first 40 hours and one and one-half times the hourly wage for each Activated Affiliated Personnel for every hour over 40. |
| (vii) Activates Affiliated Personnel who are customarily and usually paid a daily compensation rate according to the Maximum Pay Rate Table, | | The daily compensation rate for each Activated Affiliated Personnel for each full or partial day during the Activation. |

(f) *Reimbursement of additional salary and overtime costs.* DHS will reimburse any identified additional salary and overtime cost incurred by a Sponsoring Agency as a result of the temporary conversion of a Non-Exempt System Member normally compensated under [29 U.S.C. 207(k)](https://www.govinfo.gov/link/uscode/29/207) to a 40-hour work week under [29 U.S.C. 207(a)](https://www.govinfo.gov/link/uscode/29/207).

(g) *Reimbursement for Backfill costs upon Activation.* DHS will reimburse the cost to Backfill System Members. Backfill costs consist of the expenses generated by filling the position in which the Activated System Member should have been working. These costs are calculated by subtracting the non-overtime compensation, including fringe benefits, of Activated System Members from the total costs (non-overtime and overtime compensation, including fringe benefits) paid to Backfill the Activated System Members. Backfill reimbursement is available only for those positions that are normally Backfilled by the Sponsoring Agency or Participating Agency during Activation. Employees exempt under the Fair Labor Standards Act (FLSA) not normally Backfilled by the Sponsoring Agency or Participating Agency are not eligible for Backfill during Activation.