Can an Employer Substitute Compensatory Time Off For Cash Overtime Pay?
*Updated 5/3/2017* Under the misleading title of “The Working Families Flexibility Act” (HR 1180), Congressional Republicans are proposing to allow employers to offer private sector employees
compensatory time off instead of paying them time and a half for the overtime they work. Here’s how the law currently works and why employee rights advocates oppose this bill.
Overtime Pay Law in a Nutshell
Private sector employers covered by the Fair Labor Standards Act (FLSA) or Wisconsin wage laws must pay at least
time and a half wages for hours worked over 40 in a workweek by
non-exempt employees.
Private sector employers cannot provide compensatory time off in lieu of cash for these overtime hours. Moreover, an employee cannot waive her right to overtime pay or agree that only 8 hours a day or 40 hours a week will be counted as hours worked. If an employer allows an employee to work over 40 hours a week, those hours must be paid at the overtime rate.
Requiring Overtime Pay Encourages Fair Treatment of Labor
The requirement for pay rather than time off at some later date is an important protection of the law, as
there is no limit to the number of overtime hours an employer can require employees (16 and older) to work. The requirement that employers pay a premium for all overtime hours worked creates a monetary disincentive to working employees more than 40 hours a week, keeping them away from their families and other non-work activities. The
overtime pay requirement also encourages employers to hire additional workers rather than overwork a smaller work force.
Public Employees CAN Be Given Compensatory Time Off
The law treats public workers (those employed by State and local governments) differently. Under certain conditions, these public sector employees may receive compensatory time off, at a rate not less than one and one-half hours, for overtime hours worked rather than cash overtime pay. Law enforcement, fire protection, and emergency response personnel and employees engaged in seasonal activities may accrue up to 480 hours of comp time; all other public employees may accrue up to 240 hours. Unused compensatory time off must be paid to an employee at the time of termination.
A public employee must be permitted to use compensatory time off within a reasonable period after making the request, unless it would “unduly disrupt” the operations of the public employer. FLSA regulations state that for an agency to turn down an employee request for compensatory time off it should “reasonably and in good faith anticipate that it would impose an unreasonable burden on the agency’s ability to provide services of acceptable quality and quantity for the public during the time requested without the use of the employee’s services.” 29 C.F.R. §553.25 However, in disputes over an employee’s ability to use accrued compensatory time off on a requested date, courts have given employers leeway to refuse. For example, one court found that an employee who requested two weeks in advance to use his compensatory time off on a particular date was lawfully refused because there were no available leave slots open on that day.
Mortensen v. County of Sacramento, 368 F.3d 1082 (9th Cir, 2004). An employer can also require employees to schedule time off in order to reduce the amount of accrued time
Christensen v. Harris County 529 U.S. 576 (2000).
New Federal Proposal Would Allow Compensatory Time Off in Private Sector
Given the difficulties many public sector workers have faced with scheduling compensatory time, it is no wonder that workers’ rights advocates have exposed HR 1180 as an effort to strip private sector workers of their overtime pay protection. The bill offers flexibility to employers, not working families, and undermines the purpose of the overtime pay provisions of the law. For more information, see:
Beware the Phony Working Family Flexibility Bill
Calling the "Comp Time" Bill a Scam is Putting in Gently
If you believe you have not been paid properly for overtime hours or improperly denied use of compensatory time off or payment at the time of termination, contact our
Milwaukee attorneys (414-271-8650) or Madison attorneys (608-257-0040) for a free wage and hour consultation.