U.S. Code » Title 38 » Part PART V— BOARDS, ADMINISTRATIONS, AND SERVICES › Chapter CHAPTER 74— VETERANS HEALTH ADMINISTRATION—PERSONNEL › Subchapter SUBCHAPTER IV— PAY FOR NURSES AND OTHER HEALTH-CARE PERSONNEL

38 U.S.C. § 7453

Nurses: additional pay

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(a) In addition to the rate of basic pay provided for nurses, a full-time nurse or part-time nurse shall receive additional pay as provided by this section.(b) A nurse performing service, any part of which is within the period commencing at 6 postmeridian and ending at 6 antemeridian, shall receive additional pay for each hour of such service at a rate equal to 10 percent of the nurse’s hourly rate of basic pay if at least four hours of such service fall between 6 postmeridian and 6 antemeridian. When less than four hours of such service fall between 6 postmeridian and 6 antemeridian, the nurse shall be paid the differential for each hour of service performed between those hours.(c) A nurse performing service, any part of which is within the period commencing at midnight Friday and ending at midnight Sunday, shall receive additional pay for each hour of such service at a rate equal to 25 percent of such nurse’s hourly rate of basic pay.(d) A nurse performing service on a holiday designated by Federal statute or Executive order shall receive for each hour of such service the nurse’s hourly rate of basic pay, plus additional pay at a rate equal to such hourly rate of basic pay, for that holiday service, including overtime service. Any service required to be performed by a nurse on such a designated holiday shall be deemed to be a minimum of two hours in duration.(e)(1) A nurse performing officially ordered or approved hours of service in excess of 40 hours in an administrative workweek, or in excess of eight consecutive hours, shall receive overtime pay for each hour of such additional service. The overtime rates shall be one and one-half times such nurse’s hourly rate of basic pay.(2) For the purposes of this subsection, overtime must be of at least 15 minutes duration in a day to be creditable for overtime pay.(3) Compensatory time off in lieu of pay for service performed under the provisions of this subsection shall not be permitted, except as voluntarily requested in writing by the nurse in question.(4) Any excess service performed under this subsection on a day when service was not scheduled for such nurse, or for which such nurse is required to return to the nurse’s place of employment, shall be deemed to be a minimum of two hours in duration.(5) For the purposes of this subsection, the period of a nurse’s officially ordered or approved travel away from such nurse’s duty station may not be considered to be hours of service unless—(A) such travel occurs during such nurse’s period of service; or(B) such travel—(i) involves the performance of services while traveling,(ii) is incident to travel that involves the performance of services while traveling,(iii) is carried out under arduous conditions as determined by the Secretary, or(iv) results from an event which could not be scheduled or controlled administratively.(f) For the purpose of computing the additional pay provided by subsection (b), (c), (d), or (e), a nurse’s hourly rate of basic pay shall be derived by dividing such nurse’s annual rate of basic pay by 2,080.(g) When a nurse is entitled to two or more forms of additional pay under subsection (b), (c), (d), or (e) for the same period of service, the amounts of such additional pay shall be computed separately on the basis of such nurse’s hourly rate of basic pay, except that no overtime pay as provided in subsection (e) shall be payable for overtime service performed on a holiday designated by Federal statute or Executive order in addition to pay received under subsection (d) for such service.(h) A nurse who is officially scheduled to be on call outside such nurse’s regular hours or on a holiday designated by Federal statute or Executive order shall be paid for each hour of such on-call duty, except for such time as such nurse may be called back to work, at a rate equal to 10 percent of the hourly rate for excess service as provided in subsection (e).(i) Any additional pay paid pursuant to this section shall not be considered as basic pay for the purposes of the following provisions of title 5 (and any other provision of law relating to benefits based on basic pay):(1) Subchapter VI of chapter 55.(2) Section 5595.(3) Chapters 81, 83, 84, and 87.(j)(1) Notwithstanding any other provision of law and subject to paragraph (2), the Secretary may increase the rates of additional pay authorized under subsections (b) through (h) if the Secretary determines that it is necessary to do so in order to obtain or retain the services of nurses.(2) An increase under paragraph (1) in rates of additional pay—(A) may be made at any specific Department health-care facility in order to provide nurses, or any category of nurses, at such facility additional pay in an amount competitive with, but not exceeding, the amount of the same type of pay that is paid to the same category of nurses at non-Federal health-care facilities in the same geographic area as such Department health-care facility (based upon a reasonably representative sampling of such non-Federal facilities); and(B) may be made on a nationwide, local, or other geographic basis if the Secretary finds that such an increase is justified on the basis of a review of the need for such increase (based upon a reasonably representative sampling of non-Federal health-care facilities in the geographic area involved).(Added Pub. L. 102–40, title IV, § 401(b)(4), May 7, 1991, 105 Stat. 232; amended Pub. L. 103–446, title XII, § 1201(e)(24), (g)(6), Nov. 2, 1994, 108 Stat. 4686, 4687; Pub. L. 111–163, title VI, § 601(k)(1), May 5, 2010, 124 Stat. 1171.)Editorial NotesPrior Provisions

Provisions similar to those in this section were contained in section 4107(e) of this title prior to the repeal of that section as part of the complete revision of chapter 73 of this title by Pub. L. 102–40.

Amendments

2010—Subsec. (a). Pub. L. 111–163, § 601(k)(1)(A), substituted “a full-time nurse or part-time nurse” for “a nurse”.

Subsec. (b). Pub. L. 111–163, § 601(k)(1)(B), struck out “on a tour of duty” after “performing service” and substituted “hour of such service” for “hour of service on such tour”, “at least four hours of such service” for “at least four hours of such tour”, and “less than four hours of such service” for “less than four hours of such tour”.

Subsec. (c). Pub. L. 111–163, § 601(k)(1)(C), struck out “on a tour of duty” after “performing service” and substituted “such service” for “service on such tour”.

Subsec. (e)(1). Pub. L. 111–163, § 601(k)(1)(D)(i), substituted “eight consecutive hours” for “eight hours in a day”.

Subsec. (e)(5)(A). Pub. L. 111–163, § 601(k)(1)(D)(ii), substituted “period of service” for “tour of duty”.

1994—Subsecs. (f), (g). Pub. L. 103–446, § 1201(e)(24), substituted “subsection (b), (c), (d), or (e)” for “subsections (b), (c), (d), or (e)”.

Subsec. (i)(3). Pub. L. 103–446, § 1201(g)(6), struck out “of title 5” before period at end.

Notes of Decisions
Cited in 31 cases (9 in the last 5 years), 2003–2026 · leading case: Filosa v. United States, 70 Fed. Cl. 609 (Fed. Cl. 2006).
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Filosa v. United States, 70 Fed. Cl. 609 (Fed. Cl. 2006). · cites it 23× “PROCEDURAL HISTORY On April 22, 2004, Plaintiffs filed a Complaint in the United States Court of Federal Claims, alleging a violation of 38 U.S.C. § 7453 (h) 6 by the VHA for failing to pay *614 “additional pay” for on-eall duty services extending beyond regular working hours.”
Athey v. United States, 908 F.3d 696 (Fed. Cir. 2018). · cites it 9× “The government argued that title 38 entitles Appellants to a lump-sum payment of accrued annual leave, calculated based on the basic rate of pay they were earning prior to separation, but that 38 U.S.C. § 7453 (i) prohibits the inclusion of "additional pay" (pay for evening and…”
Austin v. United States, 124 Fed. Cl. 410 (Fed. Cl. 2015). · cites it 21× “Keywords: 38 U.S.C. § 7453 ; Holiday Pay; 5 U.S.C. § 6103 ; Executive Order No.”
Curry v. United States, 66 Fed. Cl. 593 (Fed. Cl. 2005). · cites it 9× ““Additional pay” provisions Registered nurses are entitled to receive a form of premium pay, called “additional pay,” under 38 U.S.C. § 7453 . Additional pay is awarded for night work (work between 6 p.”
Mercier v. United States, 114 Fed. Cl. 795 (Fed. Cl. 2014). · cites it 11× “They contend that they were denied basic and overtime pay as well as compensatory time off to which they are entitled under 38 U.S.C. § 7453 , as well as VA regulations and policies.”
Mercier v. United States, 786 F.3d 971 (Fed. Cir. 2015). · cites it 7× “38 U.S.C. § 7453 (e)(1). The trial court dismissed the nurses’ claim because they did not allege that the agency “expressly directed” their overtime.”
Athey v. United States, 78 Fed. Cl. 157 (Fed. Cl. 2007). · cites it 7× “The Defendant relies on 38 U.S.C. § 7453 (i) which states: Any additional pay paid pursuant to this section shall not be considered as basic pay for the purposes of the following provisions of title 5 (and any other provision of law relating to benefits based on basic pay): (1)…”
Curry v. United States, 81 Fed. Cl. 328 (Fed. Cl. 2008). · cites it 3× “who regularly received “additional pay” pursuant to 38 U.S.C. §§ 7453 or 7454 for working their regular and customary work schedule; and 4.”
Adams v. United States, 99 Fed. Cl. 700 (Fed. Cl. 2011). · cites it 11× “38 U.S.C. § 7453 (e) (2006). As of January 1, 2004, Class Plaintiffs have been entitled to receive the same pay that nurses receive under section 7453(e).”
Am. Fed'n of Gov't Employees v. Nicholson, 475 F.3d 341 (D.C. Cir. 2007). · cites it 5× “The arbitrator based this decision on 38 U.S.C. § 7453 , which governs VA nurses’ premium pay, and on corresponding provisions in the collective bargaining agreement.”
Am. Fed'n of Gov't Employees, Local 446 v. Principi, 404 F. Supp. 2d 14 (D.D.C. 2005). · cites it 4× “The underlying substantive dispute in this case concerns Plaintiffs grievance that beginning February 1, 1999, operating room (“OR”) nurses at the VAMC were not receiving premium pay for night and weekend work allegedly owed to them under 38 U.S.C. §§ 7453 (b) and (c), as…”
Athey v. United States, 132 Fed. Cl. 683 (Fed. Cl. 2017). · cites it 2× “Saturday under 38 U.S.C. § 7453 (c), and as comparably provided to physician assistants and EFDAs pursuant to 38 U.”
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— 38 U.S.C. § 7453(e) — 1 case
Athey v. United States, 132 Fed. Cl. 683 (Fed. Cl. 2017). “Saturday under 38 U.S.C. § 7453 (c), and as comparably provided to physician assistants and EFDAs pursuant to 38 U.”
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