FLSA Comp Time may not be an option for all Fire Departments

Today’s FLSA Question

I am the administrator for a nonprofit 501(c)(3) volunteer fire company. We are in the process of hiring our own full-time dispatchers. Currently the county provides dispatch services, however we are transitioning from a completely volunteer organization to a combination department. We want to mirror the county’s compensatory time (comp time) policy. All county employees, including county dispatchers, receive the option of comp time in lieu of FLSA overtime. However, I understand comp time may not be an option for our private organization. Is that true? Can we provide our dispatchers comp time in lieu of FLSA overtime?

Excellent question. You are correct: Your nonprofit 501(c)(3) organization would not be able to give dispatchers comp time in lieu of FLSA overtime. The FLSA only allows public agency employers to utilize comp time in lieu of paying FLSA overtime. 29 U.S.C. §207(o) clearly states that only “[e]mployees of a public agency which is a State, a political subdivision of a State, or an interstate governmental agency may receive, in accordance with this subsection and in lieu of overtime compensation, compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation is required by this section.”

FLSA comp time is a relatively new concept. Originally, the FLSA did not apply to public sector workers. Public agency employees, such as county dispatchers, did not receive FLSA overtime. If these workers received any overtime pay it was likely the result of collective bargaining or state laws. In 1985, the U.S. Supreme Court ruled that the FLSA is applicable to public agencies. In response to this new finding, Congress and the Department of Labor enacted several unique modifications to the FLSA designed to soften the economic effects of applying the FLSA to public agencies.

While comp time is not an option for your organization today, it may be in the future. In recent years Congress has debated bringing some form of compensatory time to the private sector. In fact, this past May the U.S. House of Representatives passed the Working Families Flexibility Act. That legislation would allow private employers, like yourself, to utilize comp time in lieu of paying overtime under certain circumstances. But . . . that won’t help you today. Unfortunately, for the foreseeable future FLSA comp time will not be an option for you.

FLSA comp time is a very popular topic which we discuss in-depth at all of the FLSA for fire department seminars. Please consider joining us.

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