Cleveland Ohio Facing FLSA Suit Over Comp Time

A veteran Cleveland police officer has filed suit against the city alleging its compensatory time (comp time) policies violate the FLSA. Officer Jeffrey Kozma filed the suit, on behalf of himself and similarly situated individuals, in the U.S. District Court for the Northern District of Ohio on August 15, 2019.

According to the complaint, the city mandates police officers receive comp time in lieu of FLSA overtime. This fact, in and of itself, would most likely not present a problem, however the complaint also alleges the city allows officers to accrue more comp hours than allowed by the FLSA. If proven, this would be a violation of the FLSA.

The FLSA allows public agency employers the option of providing employees comp time in lieu of paying federally mandated overtime. However, in order to utilize the FLSA’s comp time provisions specific rules must be followed. One of these rules relates to the maximum number of hours of comp time that an employee can accrue.

The FLSA and Department of Labor (DOL) regulations cap the maximum number of comp time hours employees engaged in public safety and emergency response activities—like police officers and firefighters—can accrue to four-hundred and eighty (480). Once the employee reaches the 480-hour maximum accrual, FLSA comp time is no longer an option for that employer. Public agency employers need to carefully monitor the number of comp time hours employees have accrued or “banked.” Failure to do so could likely result in a costly FLSA violation.   

Here is an example to help clarify: Firefighter A is owed 10 hours of FLSA overtime. In lieu of paying firefighter A 10 hours of time and one-half, the employer can provide 15 hours of paid leave (i.e. FLSA comp time) that can be utilized at some future point in time. If that firefighter has less than 480 hours of comp time accrued or banked, the fire department can provide comp time in lieu of overtime. However, if this firefighter already has 480 hours accrued, the fire department would not have the option of providing FLSA comp time and would be required to pay the firefighter overtime. (For the sake of this example – we assume that all of the requirements of FLSA comp time have been met.)

Here is more from Kozma’s complaint:

• Defendant failed to pay Plaintiff and the Putative Class members overtime compensation as required by the FLSA at a rate of not less than one and one-half his regular rate, and such overtime remains unpaid.
• Instead, Defendant requires Plaintiff and the Putative Class members to accept “compensatory time off” in lieu of overtime wages in an amount in excess of 480 hours.
• For example, Plaintiff has now accrued, and regularly maintains, over one thousand hours of compensatory time.
• The FLSA prohibits employers from allowing or requiring employees to accrue over 480 hours of compensatory time. See 29 U.S.C. § 207(o)(3)(A) (“…the employee engaged in such work may accrue not more than 480 hours of compensatory time…”).
• In impermissibly requiring Plaintiff and the Putative Class members to accrue “compensatory time” in an amount well in excess of 480 hours, Defendant has violated the FLSA by failing to pay Plaintiff and the Putative Class members overtime compensation as at a rate of not less than one and one-half their regular rate, and such overtime remains unpaid.
• Defendant knowingly and willfully engaged in the above-mentioned violations of the FLSA.
• To the extent that Defendant failed to make, keep, and preserve records of all hours worked, Plaintiff is entitled to a reasonable estimate of such time.

While the initial complaint only involves one officer, it is likely more will opt-in over the coming months. We will keep our eyes on this one. Here is a copy of the complaint.