FLSA Mandatory Time Off "UNDUE HARDSHIP"

Under FLSA an employee can take FLSA compensatory time off on demand. Even if the request for time off leaves the employer under staffed for that shift, the request can not be denied. The employer is required to find a replacement and pay overtime to the replace if necessary. The only time the requesting employee can be denied the FLSA time off is if it creates an undue hardship to the employer. "Undue hardship" is not defined anywhere that I can tell. My questions in this, does anyone have any experience or a resource where I can better understand "undue hardship"?

Comments

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  • Undue hardship is unique to your own business. A hardship for my company, might not be a hardship for your company. Then again, a jury might not agree with either of us!

    Unless you are a government entity, you cannot allow an employee to accumulate comp time. If you are trying to avoid overtime by allowing the employee to take time off, then they must take equivalent time off [u]within the same workweek.[/u] Your choices are ...give the employee time off in the same week or pay the overtime for hours worked beyond 40.


  • Yes, I do work in government and our work cycle is 28 days. I do believe you are correct in saying an undue hardship may be different for individual organizations. But I was wondering if perhaps anyone has experienced undue hardship and what were the circumstances so I might extrapolate [if you will] that experience into my own situation. Thanks!!!
  • FLSA has no "undue hardship" criteria for FLSA. For the private sector FLSA rquries that the non-exempt emplyee be paid time and one-half the hourly rate employee works for overtime. There is nothing in the law for the empolyer to cite in order claim a hardship that would allow comptime in lieu of pay.

    Overtime is considered under FLSA to be more than 40 hours worked in a work week. Comptime in lieu of overtime pay is only allowed for public sector if the governmental entity has it as a policy. Comptime is also at time and one half but could be a combination of both pay and accrued time that total time and one half time the hourly rate, e.g., one hour straight rate pay and 30 mintues of comp time, or vice verse.

    Take a look at 29CFR778.100 and the following sections that describe compensation for overtime. On the other hand, take a lok at 29CFR553.21 for comptime provisions for public sector employers.

    [url]http://www.access.gpo.gov/nara/cfr/waisidx_98/29cfr778_98.html[/url]

    [url]http://www.access.gpo.gov/nara/cfr/waisidx_98/29cfr553_98.html[/url]



  • I've been given to understand that comp time for exempt employees is permissible that comp time is only an issue for hourly employees.
  • Robert, I once had an involvement with a Deputy Director position who took two years off before he retired based on medical authority that assisted him in developing his request for comp time accurred off. We ate his two years of being off and could not hire a replacement. We were unable to develop any "undue hardship" issues, which would allow for us to require him to be at work rather than on the "golf course". I can feel for your situation but I don't offer any hope. Pork
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