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Employees’ Right to Comp Time
Do you grant comp time to your employees in lieu of overtime? If so; (1) Do you follow the guidelines contained in County Personnel rule 4-10-020(B)? (2) Are you familiar with comp time usage rules contained in the collective bargaining agreement that covers your employees? (3) And, are you familiar with U.S. Department of Labor (DOL) regulations governing the use of comp time?
The Fair Labor Standards Act (FLSA) states that, when an employee requests to use comp time, he or she “shall be permitted by the employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency.”
DOL regulations define “reasonable period,” as follows:
Whether a request to use compensatory time has been granted within a “reasonable period” will be determined by considering the customary work practices within the agency based on the facts and circumstances in each case. Such practices include, but are not limited to (a) the normal schedule of work, (b) anticipated peak workloads based on past experience, (c) emergency requirements for staff and services, and (d) the availability of qualified substitute staff.
DOL regulations define “unduly disrupt” as follows:
When an employer receives a request for compensatory time off, it shall be honored unless to do so would be “unduly disruptive” to the agency’s operations. Mere inconvenience to the employer is an insufficient basis for denial of a request for compensatory time off. For an agency to turn down a request from an employee for compensatory time off requires that 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.
Federal courts and the DOL have differed widely in their interpretations of the FLSA requirement that employees must be allowed to use compensatory time off within a reasonable period after requesting it.
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In 1994 the DOL issued an opinion letter stating that “an agency may not turn down a request from an employee for comp time off unless 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.”
In 1999 the 6th U.S. Circuit Court of Appeals ruled that the FLSA’s “reasonable period” clause gave a police department “the freedom to define” the conditions under which a comp time request was permitted or denied.
In 2000 the U.S. District Court for Eastern Wisconsin found that an employer’s policy of granting comp time off within one week of the requested date when it could not grant a request for a specific date violated the “reasonable period” requirement.
In 2003 the 5th U.S. Circuit Court of Appeals ruled that employees must be allowed to take comp time within a reasonable period, but they are not entitled to take specific days off.
In 2004 the 9th U.S. Circuit Court of Appeals ruled that an employer’s refusal to allow a deputy sheriff to take a particular day off as comp time was reasonable.
In 2004 the 6th Circuit Court of Appeals rejected a city’s policy of denying police officers’ requests to use comp time if the city would have to pay overtime wages to a substitute officer.
To date, the Supreme Court has not resolved the split of authority among the federal courts.
On July 28, 2008 the DOL issued a Notice of Proposed Rulemaking to change its regulations and bring them in line with the approach adopted by the 9th U.S. Circuit Court of Appeals. If the proposed regulations are issued in their current form, most public employers will safely be able to deny a request by an employee to use comp time on a specific day, as long as the employer offers alternative days within an agreed upon reasonable period of time.
Whether the DOL proposed changes will be approved appears doubtful. President-elect Barack Obama and several of the Senate’s other most powerful members submitted comments that the proposed regulations go beyond DOL’s expressed purpose of bringing the existing regulations in line with FLSA amendments and court rulings.
In conclusion, Multnomah County Labor Relations will continue to monitor court decisions and the DOL concerning employee use of comp time. If this article raised any questions or concerns please contact Labor Relations.
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