Compensatory Time

Compensatory time, or "comp time" is time off provided by an employer to an employee to compensate them for overtime worked instead of paying the employee overtime wages. The problem is that providing comp time instead of overtime pay usually violates the FLSA. First, comp time cannot be provided in lieu of overtime pay by a private employer. 29 U.S.C. § 207(o). Second, under the limited circumstances where a public employer may award compensatory time off instead of paying overtime wages, the comp time must be 1.5 hours off for every one hour of overtime worked. This is a common violation of the FLSA. 29 C.F.R. §553.20.

Before a public entity such as a city or county can award an employee compensatory time off in lieu of paying overtime wages, several requirements must be met:

1. Prior to awarding compensatory time to a public employee in lieu of overtime pay, there must be an agreement or understanding between the employer and particular employee that comp time will be awarded instead of overtime wages paid. This agreement or understanding must be in place before the work is performed. However, a collective bargaining agreement which provides for comp time instead of overtime pay satisfies this requirement;

2. No more than 480 hours of compensatory time may be accrued. After that maximum has been reached, all additional overtime hours worked must be compensated with overtime pay;

3. The employee must be permitted to use the compensatory time earned within a reasonable time of the request unless doing so would unduly disrupt the operations of the public employer. However, not wanting to pay overtime to another employee to cover for the employee who seeks to use his compensatory time does not constitute an undue disruption. 29 C.F.R. § 553.21.