Comp Time -- Know Your Rights
By Richard Thal, WPPA General Counsel
In 1985, soon after the United States Supreme Court's Garcia decision, Congress amended the Fair Labor Standards Act (FLSA) to allow public employers to offer employees compensatory time (comp time) off as a means of compensating employees for overtime hours worked. Many law enforcement agencies lobbied Congress to allow for comp time because giving employees the option of substituting time off for cash overtime payments can reduce overall overtime costs. Because the proposed FLSA amendments specified that law enforcement officers would always be given the choice of whether or not to substitute comp time off for cash, police unions also lobbied Congress to allow parties to bargain over comp time off procedures.
Now, thirteen years after the 1985 amendments to the FLSA were passed, most of our contracts include provisions that allow employees to take comp time off. In this thirteen-year period, many of you have asked questions about comp time. This article addresses some common questions that have arisen, and it reports on recent legal developments concerning comp time agreements, comp time accrual and comp time usage.
Comp Time Agreements
If your contract does not include a comp time agreement, your local should make negotiating the right to take comp time off a bargaining priority. Without an agreement, you cannot take comp time off.
If you bargain an agreement, the law requires that comp time must be received at the rate of not less than one and one-half hours of comp time for each hour of overtime worked. The FLSA also sets comp time accrual caps of 480 hours (i.e., 320 hours of actual overtime worked) for "public safety" employees and 240 hours for other public sector employees. Those accrual caps specify maximum accruals; many of our locals have agreed to caps lower than the maximum accrual caps.
Comp Time Use
An employee who has banked accrued comp time and requests use of the time must be permitted to use the time off within a "reasonable period" after making the request if it does not "unduly disrupt" the operations of the agency. The following legislative history of the 1985 amendments gives us some guidance on when a comp time off request would "unduly disrupt" a department:
Use of the term "reasonable" is intended to accommodate varying work practices based on the facts and circumstances of each case. When an employer receives such a request for the use of compensatory time, that request should be honored unless to do so would be unduly disruptive. By the term "unduly disruptive," the Committee means something more than mere inconvenience. For example, a request by a snow plow operator in Vermont to use 40 hours of compensatory time in February probably would be unduly disruptive. This would be true whether the request was made 48 hours or several months in advance. On the other hand, the same request by the same employee for the same number of hours in June or hunting season probably would not be unduly disruptive.
Undue disruption of operations is the only legitimate reason that your department may deny a comp time off request. The fact that your employer will have to pay overtime to the employee who fills in for you is not a legitimate reason for denying your comp time off request.
Your accrued comp time is your property. For that reason your employer cannot force you to use accrued comp time on a certain day or by a specified date. You are entitled to use your comp time when you choose to use it. If you don't use it before leaving your department, the FLSA regulations require that your department pay you for unused comp time figured at:
1) the average regular rate received by such employee during the last three years of employment; or
2) the final regular rate received by such employee, whichever is higher.
Your "regular rate" of pay is often greater than your base rate because it must be based on longevity pay, education incentives, shift differentials and other wage augments that you have received. The "regular rate" is determined by dividing the employee's total compensation for employment (except certain statutory exclusions) for the workweek by the total number of hours worked for which such compensation is paid.
Non-FLSA Comp Time
Several departments have denied comp time off requests on the basis that the accrued comp time was non-FLSA comp time and therefore the employee had no comp time usage rights under the FLSA. Because the FLSA does not apply to non-FLSA comp time, it is important for you to know the difference between contractual (non-FLSA) comp time and FLSA comp time. If you are a law enforcement official with arrest powers, your department may declare a work period of up to 28 days and take advantage of the FLSA's 7(k) exemption from the 40-hour workweek. Following is a table of the FLSA overtime thresholds associated with different work periods.
Maximum Hours Standard for Law Enforcement Officials Work Period FLSA Threshold
(days) (hours)
28 171
27 165
26 159
25 153
24 147
23 141
22 134
21 128
20 122
19 116
18 110
17 104
16 98
15 92
14 86
13 79
12 73
11 67
10 61
9 55
8 49
7 43
Assume that you have a contractual comp time agreement, your employer has declared a 28-day work period, and you are subject to the 171-hour threshold. Further, assume that you are on a 6-3 schedule and have actually worked 19 8-hour shifts (or 152 hours worked) in that 28-day work period. That would leave you 19 hours shy of the 171-hour threshold. You would then have to work in excess of 19 hours over your regularly scheduled hours before you would receive FLSA overtime or comp time. Your first 19 hours of overtime could be converted to non-FLSA comp time; overtime worked in excess of the 171-hour threshold would become FLSA comp time if you elected to substitute comp time for these overtime hours worked. Only the overtime worked in excess of the 171-hour threshold would be subject to the FLSA. Thus, to claim that your department must honor your request for comp time off unless it is unduly disruptive, you must have received comp time for working in excess of the FLSA threshold. Other comp time usage disputes are subject to your contractual rights.
