Today’s FLSA Question: I work as an administrative assistant for a small municipal fire department. City hall issued a memo last month eliminating non-essential overtime across all city departments. Our fire chief requested an exception from this prohibition for me, since our office is already shorthanded. City hall responded that as an administrative employee, I could agree to accept comp time in lieu of overtime. However, as an “administrative employee” I would be receiving hour for hour comp time, as opposed to time and one-half comp time. Additionally, I would be unable to use any accrued comp time until the end of the summer due to current budget constraints… Historically, I have received overtime for all hours worked over forty every week. Does the FLSA allow hour for hour comp time? Also, does the FLSA allow an employer to restrict using accrued comp time usage this way?
Answer: First, the FLSA requires comp time, for exempt (i.e. overtime eligible) employees, “be earned at a rate not less than one and one-half hours for each hour of employment for which overtime” pay is due. For example, if an employee is owed 10 hours of overtime, the employer and employee can agree to provide 15 hours of comp time in lieu of overtime pay. These comp time hours would be banked for the employee to use at a later date. Employers cannot reach an agreement with overtime eligible employees to provide less than this basic FLSA comp time requirement.
This leads us to your second question. Department of Labor (DOL) regulations require that an employee’s request to use accrued comp time (i.e. take a day off utilizing earned comp time) be granted unless doing so “unduly disrupts” the operations of the agency. So, in another words, the fire department would need to show that your absence would cause “an unreasonable burden on the [department’s] ability to provide services of acceptable quality and quantity for the public” in order to deny a request to use comp time. This is a pretty high standard. As a general rule, an employer would have a very difficult time defending a blanket policy prohibiting the usage of accrued comp time absent serious extenuating circumstances.
Now, there are a couple of caveats that you need to consider. There could be circumstances, where an employer grants an overtime exempt employee hour for hour “comp time.” This would not be a violation of the FLSA since the employee was never entitled to FLSA overtime in the first place. The employer is simply providing the employee with an additional form of paid leave.
Additionally, there is an overtime exemption for some high-level administrative employees. You would need to carefully evaluate your specific job duties and responsibilities in order to ensure that you are not in-fact overtime exempt. However, the vast majority of public sector administrative assistants would not meet this rather limited overtime exemption intended for white-collar employees.