Collective Bargaining, Comp Time, and the FLSA

Today’s FLSA Question: My fire department has a firefighter out on long-term leave. He is receiving his normal salary by utilizing his accrued sick leave while out of work. While on leave he performed six hours of computer type work from home. This work wasn’t required. He volunteered to file some reports related to grants and other computer work. As a result, we reduced the sick time he used that week by six hours. However, he is requesting nine hours of comp time instead of 6 hours credit towards his sick time usage. Our labor agreement allows firefighters choose either overtime or time and one-half comp time for any additional hours worked outside of the firefighter’s normal schedule. This has thrown us for a loop. Does the FLSA allow a firefighter to earn comp time for working additional hours when he hasn’t worked his regular scheduled shifts?

Answer: The FLSA would not prohibit this allocation of paid time off. The FLSA allows employers the ability to provide employees with greater benefits than required by the FLSA. However, this is a very involved question. It may not seem like it at first, but it involves numerous areas of both federal and state law in addition to the terms and conditions of your collective bargaining agreement and possibly even city policy. A local attorney needs to analyze all the above to give you some guidance. There are just too many variables involved to provide a concrete answer based on these facts alone.

But your question raises a common comp time related FLSA issue that many public employers and employees frequently do not recognize. Specifically, what is the difference between FLSA comp time and contractual comp time? And additionally, why is it necessary for public employers and employees to understand the difference?

Properly implementing and managing an FLSA comp time agreement can be challenging for all involved. The rules that dictate the eligibility, accrual, and eventual payout of FLSA comp time are long and can be complicated. Unfortunately, employers and employees do not always understand the potential pitfalls involved when a comp time agreement allows employees to accrue comp time for hours worked below the FLSA’s overtime requirement. Let’s examine the basics of FLSA comp time and then compare that to the example that you provided above.

First, FLSA comp time is earned when a firefighter (or other public agency employee) works in excess of the maximum hours for the chosen work period. In these situations, the firefighter is eligible for FLSA overtime. In lieu of FLSA overtime, the employer and employee can agree to provide FLSA comp time. The accrual rate for FLSA comp time is 1.5 hours of FLSA comp time for every hour of overtime owed. There are obviously more requirements related to the usage and payout of accrued FLSA comp time beyond this basic description, but generally these requirements can be straightforward and rather easy to manage with the proper knowledge.

However, the terms of the comp time agreement that you referenced in your question do not appear to always align with the basic FLSA comp time provisions. In your question, you write that your labor agreement “allows firefighters choose either overtime or time and one-half comp time for any additional hours worked outside of the firefighter’s normal schedule.” Therefore, comp time provided under the labor agreement may or may not be FLSA comp time.

Here are two hypothetical examples to help clarify:

Hypo #1 – FFA works all 10 of his 24-hour work shifts in a 28-day work period. FFA also works an additional 24-hour shift on a different platoon or group. As a result, FFA physically works 266 hours in the 28-day work period. He is entitled to FLSA overtime for all hours worked above 212 in the work period. If FFA chooses to receive comp time [under the terms of your labor agreement’s comp time provision] for the additional 24-hour work shift (on the different platoon or group) instead of overtime, the FLSA requires that comp time be accrued at 1.5 hours of comp time for every hour of overtime owed. This is FLSA comp time.

Hypo # 2 – FFB works five of her ten scheduled 24-hour work shifts in a 28-day work period. FFB uses three vacation days, one sick day, and one personal day during the work period. In addition to these five 24-hour scheduled shifts, she also works one extra 24-hour shift filling in for another firefighter on a different platoon or group. Here, FFB is not entitled to any FLSA overtime or comp time. FFB has not worked over 212 hours in the work period. However, FFB is entitled to comp time under the labor agreement. In this hypothetical, there is no requirement for this comp time to be accrued at the rate of 1.5 hours of comp time per hour worked. Remember, this is not FLSA comp time, it is contractual comp time.

This may seem like semantics to some, but by not clearly delineating comp time associated with FLSA overtime versus comp time associated with a contractual benefit, the parties open themselves up to confusion and possible litigation. The example that you provided illustrates this fact rather well. Think about this, you will likely need to consult with an attorney to determine whether this firefighter is entitled to six or nine hours of time/pay. This is probably not the best way to spend the department’s financial resources.

Best practice requires that comp time agreements that include both FLSA and contractual comp time (i.e. non-FLSA comp time) clearly indicate which earned comp time hours are attributable to each category. Any comp time hours accrued in each category should be maintained separately. The rules pertaining to contractual comp time are likely less stringent than FLSA comp time. Additionally, possible violations of contractual comp time versus FLSA comp time may result in a grievance as opposed to a federal lawsuit.

Do you have questions related to comp time, the implications of collective bargaining on firefighter overtime pay and hours worked, or other similar questions? If yes, please consider signing up for the FLSA for Fire Departments Live Webinar. The next offering is only a few weeks away. For more information, click here.