Introduction to the Fair Labor Standards Act (FLSA)

2. “U NDULY D ISRUPT ” An employer can deny a request to use CTO within a reasonable period if it would unduly disrupt the employer’s operations. The DOL regulations specify the following standard in order to establish an “unduly disrupt” situation:

The agency must “reasonably and in good faith anticipate that [the employee’s request] would impose an unreasonable burden on the agency’s ability to provide services of acceptable quality and quantity for the public during the time required without the use of the employee's services.” 170

Mere inconvenience to the employer is not enough to deny an employee’s request to take CTO on the basis that it would be unduly disruptive. 171 The DOL has stated that the fact that a replacement employee would need to be called in at overtime rates to substitute for the employee taking his/her CTO off would not, in and of itself, be considered unduly disruptive. 172 However, the DOL’s regulations have been questioned by several courts that have noted the intent of Congress in providing CTO to public employers was to minimize their CTO liabilities. Under this reasoning, employers have been permitted to define a reasonable window of time in which an employee may use CTO instead of on the specific date requested by the employee. 173 3. F ORCED U SE OF CTO Public employers may force an employee to use accrued CTO without violating the FLSA. The Act allows an employer to reduce the amount of hours that an employee works and to cash out an employee’s CTO at any time. The Court held that the forced use of CTO is permissible because it is equivalent to a cash-out of the employee’s CTO and a reduction in hours worked. 174

LCW Practice Advisor

Although an employer may force employees to use their CTO, any creation of or changes in an employer’s policies regarding the forced use of CTO would likely need to be negotiated with the authorized collective bargaining representative.

4. T HERE A RE N O FLSA S TANDARDS FOR U SE OF N ON -FLSA CTO The Act does not contain any standards regarding the use of non-FLSA CTO. 175 Thus, the unduly disruptive standard does not apply to requests to use non-FLSA CTO. Employers are free to create their own standards for the use of non-FLSA CTO. However, such standards may need to be negotiated with the authorized collective bargaining representative for employees.

Introduction to the Fair Labor Standards Act (FLSA) ©2020 (s) Liebert Cassidy Whitmore 35