Can An Employer Force Employees To Use Comp Time

Background: The Fair Labor Standards Act (FLSA) allows the use of compensatory time off, or “comp time,” in lieu of overtime compensation for employees of a state, political subdivision of a state, or an interstate government agency. Comp time must be issued at a rate of not less than one and one-half hours for each hour of overtime worked. Employees who have accrued comp time must be allowed to use it within a reasonable period of time, unless to do so would unduly disrupt the employer’s business operations.

Issue: What if employees fail to use their comp time? Can a public employer compel employees to use the comp time after a certain number of hours have been accumulated?

Answer: “Yes,” says the federal appeals court in San Francisco. Employers and employees should reach agreements concerning the use and preservation of comp time, the legislative history and interpretive regulations suggest. However, where there has been no agreement, nothing in the FLSA prohibits public employers from requiring employees to use comp time after they have accumulated a certain number of compensatory hours.

The FLSA does not grant employees absolute discretion over the use of accrued comp time; nothing in the legislative history of the FLSA indicates that comp time is a property right, noted the court. Therefore, a public employer was not violating the FLSA when it compelled employees to use their comp time.

SOURCE: Collins v. Lobdell (9thCir 1999) 139 LC 33,937; Fair Labor Standards Act, Section 7.

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