Split decision settles decades-long debate over verbal overtime orders for federal HR
Federal agencies must get overtime approvals in writing, a closely divided appeals court ruled December 12, reaffirming a requirement that has governed federal workplaces for two decades.
The U.S. Court of Appeals for the Federal Circuit upheld an 80-year-old regulation requiring written documentation for federal employee overtime, even though the statute itself never mentions anything about putting it on paper. The 7-4 decision settles a question that has vexed government HR departments and sparked countless disputes: Can a supervisor verbally tell an employee to work overtime, or does it have to be in writing?
The case started with Jillian Lesko, a registered nurse at the Indian Health Service during the pandemic. She worked eight months caring for patients when, according to her lawsuit, nurses were pushed to their breaking point and routinely told to stay late without pay. After she resigned, Lesko sued for unpaid overtime on behalf of herself and other IHS nurses in similar situations.
The problem was she never got written approval for any of that extra work. Federal regulations have required written overtime authorization since 1945, just four days after Congress passed the law creating overtime pay for government workers. But the statute only says overtime must be "officially ordered or approved" without saying how that order or approval should happen.
Lower courts tossed her case, and Lesko appealed. The Federal Circuit, sensing the issue was important enough for its full bench, took the unusual step of hearing arguments before all available judges rather than the typical three-judge panel.
Chief Judge Moore, writing for the majority, acknowledged that the phrase "officially ordered or approved" does not literally require a writing. But she said the word "officially" suggests some kind of formal process with proper authorization, and Congress left it to the Office of Personnel Management to figure out the details.
The court pointed to the law that lets OPM write regulations "necessary for the administration" of overtime rules. That delegation, the majority said, gave OPM room to decide that written documentation was needed. The agency could reasonably conclude that requiring signatures would control costs, prevent disputes about what was actually authorized, create clear records, and give employees certainty about when they would get paid extra.
The government pointed out that without the writing requirement, federal agencies spent decades battling over whether supervisors had silently "induced" employees to work overtime through subtle pressure or unclear expectations. Courts took "almost every conceivable position" on these claims, one judge complained back in 1973, meaning employees could usually find some precedent to support whatever argument they wanted to make.
Four judges disagreed with the outcome. In a dissent written by Circuit Judge Stoll, they argued that Congress knows how to require a writing when it wants one. In fact, another part of the exact same statute explicitly says certain overtime waivers for border patrol agents "must be approved in writing." If Congress wanted that same requirement for all federal overtime, it would have said so.
The dissenters also took issue with the idea that OPM had been delegated this kind of authority. They said the Supreme Court's recent Loper Bright decision, which eliminated automatic deference to agency interpretations, requires courts to determine the best meaning of a statute themselves. And the best meaning of "officially ordered or approved," they argued, includes verbal orders.
For HR teams managing federal employees, the takeaway is straightforward: document everything. The decision makes clear that overtime worked without written authorization, even if a supervisor clearly directed it, will not be compensated. Agencies should ensure supervisors know they cannot casually tell employees to stay late and expect the government to pay for it later.
The court did note one important exception. Some agencies, like the Department of Health and Human Services, allow supervisors to verbally order overtime in emergencies as long as they document the approval the next business day. That flexibility could matter in crisis situations where getting signatures first is not realistic.
The case now goes back to a smaller panel of judges to resolve Lesko's other claims about different types of pay. But the core overtime question that affects thousands of federal HR departments is settled, at least for now.
