Non-exempt employees & comp time

Ki

We are a private non-profit organization with a 35 hour work week. We have some non-exempt employees that occassionally work more than 35 hours/week, but less than 40 hours per week.

An HR Consultant told us several years ago that we are permitted to give the employees comp-time instead of overtime for hours worked over 35, but less than 40. For example, an employee that works 37 hours one week can work 33 hours the next week.

Can anyone point me to the law that allows this? To me it appears to simply be a loop-hole in the law that is not really addressed, but perhaps I just can't find it.

Thanks.

stilldazed

Can't speak for your state or your own company policy, which might be the source of your specific situation in that you are speaking a a comp time trade off for a number of hours under 40. Look to your own state's legislation on labor issues or your own state's department that helps with workforce issues.

If there is nothing at the state level or at your own company's policy level, there is nothing at the federal level except Fair Labor Standards Act (FLSA). FLSA will address issues at the 40-hour mark in a single pay week, not a 'magic' number that is less than 40. The specifics on its guidelines will depend on specifics in your situation. Namely, unless you are using the 8&80 exception (very specific applications), there is no comp time trade off allowed, and there really isnt with 8&80. Under FLSA, there is nonOT and OT compensation/wage calculations.

What you offered as a potential dilemma is very limited, and my response is based on the assumption that you also have no employee contracts, union issues, 24/7 operations with round-the-clock staffing in unique first responder roles.

ACU Frank

[font size="1" color="#FF0000"]LAST EDITED ON 04-18-07 AT 01:23PM (CST)[/font][br][br]To look at it slightly differently than stilldazed... Absolutely you can offer comp time in the situation you described. FLSA only prohibits comp time in lieu of OT. Since OT is not a part of your equation, comp time is not a problem.

Your last sentence is dead on - except I wouldn't necessarily call it a "loop hole". It's just the absence of a prohibition. You typically don't find laws that specifically "allow" something. They just don't prohibit it, and we accept that as "allowing".

Dutch2

If overtime pay is not an issue, hours in excess of 40, why not just pay them for actual time worked each week. So they get paid 37 hours one week and 33 hours the next; it still comes out to average 35 hours per week and the cost to teh company would be the same. To me this would be far less confusing to the ee's and your payroll staff.
Just my two cents worth....

Ki

I should have mentioned in my original posting...these are SALARIED non-exempt employees.

Thanks everyone for your feedback.

njjel

I'd like to add that if you are a New JErsey employer you may NOT grant ee's comp time as hourly ee's must be paid for all hours worked in the work week. However exempt ee's may receive comp time. Within the same work week you may have an ee work 35 hours (or 40 whatever you case may be) in 4 days and let them take off one day, etc.