Fire Chief’s Comp Time Cash Out at Retirement and the FLSA

Today’s FLSA Question: I recently read a news story about a fire chief that retired and received compensation for 93 comp time days in addition to his unused vacation and sick time. My question is specifically about the comp time buy-out. Assuming that each “day” equaled 8 hours of comp time, that equates to 744 hours of comp time. My organization limits firefighter comp time accruals to 480 hours. We were told that the FLSA requires comp time accruals be capped at 480 hours. If that is the case, how can that chief retire with well over 700 hours on comp time?

Answer: There is no way to determine exactly how the chief in the article accrued so many hours of comp time without getting more information, however there is likely a very valid explanation for this occurrence. The ins-and-outs of comp time can get a little tricky and are very often misunderstood. So, let’s take a closer look and see if we can provide some insight on this topic and provide a clearer understanding of the FLSA’s requirements related to comp time and high-ranking fire officers.

First, the folks that told you the FLSA caps comp time accruals at 480 hours are correct. Under the FLSA, non-exempt public agency employees engaged in a “public safety” or “emergency response” activity—like firefighters—are limited to a maximum accrual of 480 hours of FLSA comp time. The maximum comp time accrual for civilian employee’s is 240 hours. Additionally, employers are not per se required to cap comp time accruals for firefighters at 480 hours. The FLSA and Department of Labor (DOL) regulations does not prohibit an employer from setting a lower cap. For more on FLSA comp time accruals, click here.

Now, let’s move on to a possible scenario that explains how a fire chief [or any high-ranking fire officer] could accrue 744 hours of comp time. Under the FLSA, comp time is provided in lieu of overtime pay. Therefore, the FLSA’s comp time provisions are only an option for non-exempt [i.e., overtime eligible] public agency employees. In most instances, a fire chief is an overtime exempt employee. Overtime exempt employees have no right to any FLSA overtime, comp time, or even minimum wage for all hours worked.

Most likely, the accrued time off that this fire chief was paid for at his retirement was not FLSA comp time. It was most likely some other form of paid leave that was provided under an employment contract, city policy, or local practice. In all likelihood, this was additional paid leave provided to the chief for working beyond the chief’s normal workday or coming in for additional duties after-hours. This is not an unusual practice. The fact that this leave is called “comp time” can cause more confusion.

It is important to understand that there is a difference between “FLSA comp time” which is comp time owed to a public agency employee in lieu of receiving overtime pay and other forms of paid leave that happen to be called “comp time.” There is a significant distinction between the two. It is best practice to call this non-FLSA comp time something other than comp time to avoid confusion. Additionally, public agency employers need to ensure they are following the many rules governing the accrual, usage, and cash out of FLSA comp time to avoid a possible FLSA violation.

Do you have questions like this? This is one of the numerous topics covered in-depth at all of our FLSA for Fire Departments live webinars. Time is running out to register for next week’s class.

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