Introduction to the Fair Labor Standards Act (FLSA)

C OMPENSATORY T IME O FF

S ECTION 6

A. T HE B ASIC R EQUIREMENTS

Under the FLSA, employees of public agencies may receive compensatory time off (“CTO”) in lieu of overtime compensation. 153

1. D ISTINCTION B ETWEEN FLSA CTO AND N ON -FLSA CTO The provisions of the FLSA only apply to FLSA CTO. 154 FLSA CTO is hours that are accrued for working FLSA overtime. The FLSA defines overtime as hours actually worked in excess of a specified number in the FLSA work period, which is typically 40 hours in a workweek (except for certain safety and hospital employees). Thus, any CTO hours granted for working hours in excess of the applicable FLSA maximum hours threshold (e.g., a daily maximum) will be considered to be FLSA CTO hours.

2. E MPLOYER AND E MPLOYEE M UST A GREE

The FLSA requires an agreement to compensate in the form of CTO credits for FLSA overtime (i.e., each party has a veto to whether an agreement is formed).

In the case of represented (e.g., union) employees, the agreement must be reflected by the provisions of the labor agreement “or any other agreement between the public agency and representatives of such employees.” 155 The agreement may specify the various terms and conditions regarding the option to accumulate, preserve, use or pay out CTO, so long as these are not inconsistent with the terms of the Act. If the agreement does not contain a provision on the use of CTO, but such is a mutually concurred past practice, this would, presumably, satisfy the “any other agreement” condition of the legislation. An employee is “unrepresented” for purposes of being eligible to enter into an individual CTO agreement with his or her employer, even if the employee has a designated union representative, if the employee lacks “a representative with the authority to negotiate and agree with the employer on ‘applicable provisions of a collective bargaining agreement’ authorizing comp time.” 156 An unrepresented employee may only enter into a CTO agreement with his employer if the employee and the employer arrive at “an agreement or understanding…before the performance of the work.” 157 3. C REDITED AT T IME AND O NE H ALF CTO earned for FLSA overtime hours worked must be credited at time and one-half. 158 That is, for every hour of FLSA overtime the employee must have his or her “CTO bank” credited with one and a half hours. (Of course an agreement may provide for any combination of CTO credit and cash payment, so long as it totals time and one-half compensation.)

Introduction to the Fair Labor Standards Act (FLSA) ©2019 (s) Liebert Cassidy Whitmore 32