comp time

heights · February 2002

I'm having a hard time finding information regarding the legality of comp time. It seems that different companies do different things - and I'm not sure what is the "right" thing. Specifically I am thinking of comp time for non-exempt employees. At one point I thought I read that a non-government employer can give comp time (instead of overtime) to non-exempt employees who work over 40 hours in a week, but only if the comp time is taken within the same pay period it was earned. I thought I remembered that if the time could not be taken off in the same pay period, then it had to be paid as overtime. Now I'm not so sure I heard/remembered right. Anyone know the law on this one? The books/web sites I have been referencing on FLSA don't mention comp time at all.

Cathie · February 2002

For a private employer, comp time for non-exempts can only be given in the same WEEK as the hours were earned. If it cannot be taken within that time, it must be paid as overtime.

This same holds true, technically, even if the employee would prefer to have the comp time, strangely enough.

Down_the_Middle · February 2002

Heights:
Unless you're a governmental/public employer, your difficulty finding info on comp time is becuz comp time is illegal for private employers. If you've not yet started down that road, I would caution you to not go in that direction. It's fraught with sink holes and pot holes. FLSA simply doesn't permit comp time for any private employer and to do so risks more problems that it's ever going to be worth. Altho I know it's commonly done in some industries, it comes with a sizeable risk.

Rockie · March 2002

I agree with Down the Middle! It's just not worth the risk you are taking for private employers.

Don D · March 2002

Actually, the law says that a non-exempt employee can neither be denied nor bargain away his or her due overtime. That means you two cannot reach an agreement to let her slip off early on Friday to comp for over 40 last week, for example. Sounds perfectly harmless to do that and you might ask, "Well, if both parties agree and it was, after all, her idea to begin with..." My Company (without the knowledge of HR)4 years ago got into this thinking it would be ok since all parties were in agreement, and traded off a whole lot of hours for comp afternoons off. Here's the rub: Two of the non-exempts later turned in to DOL an elaborately accurate log of their overtime hours worked over a period of time and here comes the investigative visitor! The company could not dispute the logs and paid out all the overtime due and luckily we were not assessed a penalty. We should have been penalized as well.

Carol CA · March 2002

I believe you can do comp time for non-exempts, but it does have to be in the same week, and it has to be at the employee's request, and it does have to be in writing. So, technically, someone could work an hour late on Wednesday, and leave a hour early on Thursday. You just need to make sure you have all the correct documentation that they are voluntarily forfeiting their overtime so they can take the personal time off in the same week.

Don D · March 2002

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Unless the federal FLSA laws have changed, private employer's cannot opt for comp time with non-exempts. If the law has changed, somebody please tell me so. Knocking off early on Wednesday and coming in early on Thursday to make up for that hour, or similar scenarios, is not related to overtime. That's merely making an agreed upon accomodation. Unless the law has changed, once the employee reaches 40 in his or her standard work week, anything beyond is due time and a half (unless you use the little known formula)even though the employee might suggest comp time. One of the Bibles I use is put out by Business and Legal Reports and is a 3-inch book on federal and state laws (sorry M. Lee Smith). Quoting from that book's overtime section, "Employees may neither waive their right to be compensated for overtime hours worked nor agree to a lower overtime rate than that required by FLSA, or an alternative arrangement. Even if employees have made such an agreement, they retain their right to recover overtime pay required by FLSA." That quote is dated June 2000. Again, maybe I missed a change in FLSA. Please advise if I did. Thanks.

Carol CA · March 2002

I think our problem here is that we are in different states. Where I am in California we have daily overtime. The working late on Wednesday and leaving early on Thursday would get into overtime issues with us and we would have to go through the special girations I mentioned earlier. It sounds like you don't have those issues.

Rockie · March 2002

Carol is absolutely correct about state differences. A few states, and I know California is one, that recogize overtime as those hours in excess of 8 per day. Most states follow the federal DOL rules and regs which is 40 hours in a given workweek and the employer designates the work week.

Don D · March 2002

You're right, in that a state can opt to have daily overtime issues (overtime after 8 in a workday). Fed law is silent on that but states can choose to fool with it, as California has. But, the Federal Wage and Hour Laws are the ones that prohibit a non-governmental or non public employer from ignoring overtime regs even if an employee suggests it. I will concede that maybe California law supercedes since it is "more generous". Side fact here; I was with a large, nationwide refrigerated trucking company for 5 years as HR Director. As such, we had drivers living in 48 states and tons of unemployment insurance issues. I can proudly say that I never lost a case on appeal in 47 of those states. And, I never WON one in that other state. Guess which one it was? Good luck to ya'.

njjel · March 2002

Of course the situation changes if your employees, like ours, work a 35-hour work week. Then comp time is permitted for any time worked over 35 but under the 40.

dwf · March 2002

Don D, I'm interested in learning more about that 3" book you have. Do you have any information on how I can find out more? Thanks. My fax number is 336-662-6645, or email me at [email]davida.foley@ey.com[/email].

comp time

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