This is in response to your letter making an inquiry regarding provisions of the family and medical leave act of 1993 fmla. Another way employers may try to get away with not paying overtime is by giving a nonexempt employee comp time, compensatory time, in lieu of paying them the time andahalf overtime wages that are due them. In the survey, almost 30 % of business owners use comp time with nonexempt employees. Therefore, you do not need to be paid for overtime hours worked. The flsa also specifies who is entitled to receive overtime pay. Overtime is costly, so you might try other ways to compensate. Any additional time worked must be paid either as overtime pay or. Chamberlain, kaufman and jones is a law firm with a nationwide reputation in helping employees receive the wages they are due for all hours worked, specializing in overtime law specifically collection of unpaid overtime pay due under the federal fair labor standards act flsa. The flsa fair labor standards act lays out strict rules for what basis can be used for awarding comp time, when. Eligibility for overtime pay is only one of the matters governed by the flsa. Employees engaged in police and fire protection work may accrue up to 480 hours of compensatory time.
The employee will need to reelect this option with the new agency, if eligible. The fair labor standards act and compensatory time off use. Find an overtime lawyer in your area flsa attorney. Jun 15, 2012 awarding comp time for extra hours worked is a common strategy that can backfire.
In accordance with the provisions of the fair labor standards act flsa and the michigan state university support staff compensatory time policy, nonexempt employees. In the survey, almost 30% of business owners use comp time with nonexempt employees. Flsa compliance pto, comp time, and other wage and hour law. However, for those covered by the flsa the only form of compensation that is authorized for regularly scheduled overtime is overtime pay. Everything you need to know about comp time of private employers are at risk for an flsa lawsuit are you one. In a recent independent survey, onethird of 500 privatesector employers said they used comp time or compensatory time instead of overtime a common violation of the flsa.
One of those conditions dealt with the use of comp time. The flsas overtime pay provisions for law enforcement and. Under the flsa a supervisor may approve comp time for irregular or occasional overtime if the employee requests the comp time. Fair labor standards act flsa overtime the online wages. Flsa litigation forecast perfect storm continues continue to be fights for minimum wage hikes at state and federal level continues to be a wellpublicized regulatory focus on misclassifications. An flsa nonexempt employee must also use accrued comp time within 26 pay. The flsa comp election will not automatically move when an employee is transferring to another agency. Section 7o allowed a limited form of comp time, but only in the public sector and only under some conditions. The act established a minimum wage system and regulated child labor. The fair labor standards act and compensatory time off use poam. You request guidance regarding the relationship between compensatory time accumulated by a public employee and the taking of fmla leave. The underlying question that determines if you will be compensated is whether or not the time you spend on call qualifies as hours worked when calculating overtime and minimum wage. If a public employee wants to use compensatory time off on a particular day, does the employer have to grant the day. Substituting extra time off for overtime pay is known as compensation comp.
These benefits are considered to be a matter of agreement between an. Use of comp time employee requests for comp time an employee must be permitted to use comp time within a reasonable period of time after it is accrued and may not be denied the use of comp time unless the request would unduly disrupt the employers operations. Many other federal employees are designated n and, therefore, are covered by flsa. The fair labor standards act flsa is a federal law that sets minimum wage, overtime pay, recordkeeping, and youth employment rules for most private. Because neither the statute nor regulations authorize its use in this way, accrued flsa comp time may not be made subject to a lose it or use it policy. Aug 01, 2009 forcing the use of comp time for normal sick leave purposes, the officers argued, the city was avoiding the comp time cashout requirements of the flsa.
The fair labor standards act flsa, enacted in 1938, defined the federal guidelines that govern whether or not you will be paid for oncall hours. Fulltime and permanent parttime employees overtime is authorized or ordered work actually worked by an employee which is in excess of the full regularly scheduled work period. This is legal and permitted by the fair labor standards act flsa regulations. Others are narrower, such as various exemptions from overtime pay. At the same time, the dol emphasizes that an employee has a right to use the compensatory time earned and must not be coerced to accept more compensatory time than an employer can realistically, and in good faith, expect to be able to grant. Comp time is and always has been an illegal form of compensation in the private sector. Comp time may only be used in the manner authorized by the statute and the u. Applies to the following support staff classified as nonexempt under the fair labor standards act flsa and support staff entitled to receive overtime or compensatory time per a collective bargaining agreement1 or policy. The fair labor standards act is designed to insure that wage earners are compensated for overtime hours and provides. Not all sworn police employees are subject to these overtime rules. This is in response to a request from your organization for an opinion concerning the application of section 7o of the fair labor standards act flsa to a compensatory time bank which includes both flsa and non flsa compensatory time. Overview for executive, administrative, professional, computer. Can employers offer compensatory time to exempt employees. Comp time, or compensatory time off, is time off you give employees for working overtime hours instead of paying time andahalf overtime wages.
In other words, onethird of employers surveyed are at risk for a lawsuit scroll down for complete. Compensatory time is granted whenever an officer works more than 171 hours in any 28day period. However, it always has to be paid at the similar rate of overtime wages. Department of labor dol revised a regulation that increased the salary threshold where employees are eligible to receive overtime. Department of labor dol issued its final rule on the fair labor standards act flsa, updating the salary threshold to protect a greater number of u. More employees entitled to overtime beginning december 1, 2016 kelly j. Although compensatory time off for nonexempt employees is an acceptable practice in the public sector, the dol does not permit its use for. At the time of termination an employee must be paid the higher of 1 his or her final regular.
The fair labor standards act flsa is administered by the u. Flsa compliance pto, comp time, and other wage and hour. Jun 01, 2016 many other federal employees are designated n and, therefore, are covered by flsa. This was a major change to employee exemption criteria under the fair labor standards act flsa. What are the changes to the fair labor standards act flsa. Multiply the straight time rate of pay by all overtime hours worked plus onehalf of the employees hourly regular rate of pay times all overtime hours worked. Nov 16, 2014 a supervisor may suggest taking comp time to you as an flsa nonexempt employee, but you have the right to choose the comp time or to choose overtime pay for the irregular overtime you worked on thursday.
Under the federal fair labor standards act, the rules for private sector employees are different than those for public employees, particularly when it comes to overtime pay and comp time. Comp time off is time off with pay in lieu of overtime pay for irregular or occasional overtime work, or when permitted under agency flexible work schedule programs. Employers may give paid time off for overtime workers, rather than giving overtime pay or. Comp time may, indeed, be legal according to flsa comp time. The flsa fair labor standards act lays out strict rules for what basis can be. How does an employee make the change from being paid for overtime to earning flsa compensatory leave or vice versa. Comp time, or compensatory time off, is time off you give employees for working overtime hours instead of paying timeandahalf overtime wages. The only effective restraint, in the citys view, is that officers may not accumulate more than 480 hours of leave. An employee must be permitted to use compensatory time on the date requested unless doing so would unduly disrupt the operations of the agency. Understanding overtimecompensatory time and the flsa workweek overtimecompensatory time and the flsa workweek under the fair labor standards act flsa, nonexempt employees earn overtime or compensatory time at one and onehalf times the amount of time physically worked in excess of 40 hours per week. Comp time must be issued at a rate of not less than one and onehalf hours for each hour of overtime worked. Under the flsa, state and local employees can accrue up to 240 hours of comp time, although police and fire protection personnel are allowed more see below. Awarding comp time for extra hours worked is a common strategy that can backfire.
Use rias self service to view comp balances and usage receives comp payout at end of june, if applicable. The fair labor standards act flsa allows the use of compensatory time off, or comp time, in lieu of overtime compensation for employees of a state, political subdivision of a state, or an interstate government agency. Follow the steps below to compute flsa overtime pay. Understanding overtimecompensatory time and the flsa workweek. Governmentsponsored employment development programs are addressed in. More employees entitled to overtime beginning december 1. Private employers use of comp time in lieu of overtime unlawful.
Nonprofits are not permitted to utilize compensatory time for salaried employees instead of paying overtime. Is compensatory time allowed in the private sector. The court found that the flsa does not prohibit employers from forcing employees to use compensatory time. Department of labor wage and hour division whd fmla34. An flsaexempt or nonexempt employee must be paid for compensatory time off not used by the end of the 26th pay period after the pay period during which it was earned at the overtime rate in effect when earned if the employee is unable to use the compensatory time off because of separation or placement in a leave without pay status 1 to. Some employers place restrictions on when employees can use their paid vacation time, with some going as far as forcing employees to take their vacations at certain times. Oct 15, 2004 wage and hour division whd flsa200424na. More employees entitled to overtime beginning december 1, 2016. We accomplish this by matching those in need with a qualified legal professional with extensive experience dealing with.
Bill advances to allow choice of paid time off for. For questions on the use of vacation leave during the covid19 crisis, see this page for general information and the latest legislative updates. So, what is comp time, who can use it, and when is it legal and illegal. Can you offer comp time, flex time, or some other additional compensated time off to your exempt employees. Please refer to a professional hr or legal advisor regarding specific requirements about comp time, the flsa, and how they impact your business. Overtime hours are typically any hours an employee works beyond 40 hours in a week. Ninety minutes of comp time are awarded for each extra hour worked.
The overtime pay issue in public accounting the cpa journal. Understanding overtimecompensatory time and the flsa. The flsa requires that most employees in the united states be paid at least the. May 03, 2017 comp time, or compensatory time off, is time off you give employees for working overtime hours instead of paying time andahalf overtime wages. Time off given to an employee in place of overtime pay. When permitted under agency flexible work schedule programs, time off with pay in lieu of overtime pay for regularly scheduled or irregular or occasional overtime. Forcing the use of comp time for normal sick leave purposes, the officers argued, the city was avoiding the comp time cashout requirements of the flsa. Another way employers may try to get away with not paying overtime is by giving a nonexempt employee comp time, compensatory time, in lieu of paying them the timeandahalf overtime wages that are due them. The fair labor standards act flsa, sometimes known as the flsa overtime law, does not require employers to pay employees for any time not worked, including vacations, sick leave, and holidays. The employee may make the change to earn flsa comp time by completing the following steps. As long as this time is recorded separately from flsa comp time, this other comp time is not subject to the requirements applicable to flsa comp time such as the 240 or 480 hour limit, or the requirement that it be earned at one and onehalf times the regular rate. Private employers use of comp time in lieu of overtime unlawful by ronald miller, j. I am a nonexempt employee and have 20 hours in my federal comp time bank.
You can only give comp time to nonexempt employees in the public sector. This federal mandate becomes effective december 1, 2016. Mar 27, 2020 the fair labor standards act flsa, sometimes known as the flsa overtime law, does not require employers to pay employees for any time not worked, including vacations, sick leave, and holidays. Flsa compliance pto, comp time, and other wage and hour law matters andy phillips chrissy hamiel. Home flsa coverage might new comp time bill actually pass this time. Fair labor standards act flsa glossary the online wages. Until then, the rules for comp time use will vary depending upon where in. Employees can be forced to use comp time in lieu of sick. Insight and commentary on wage and hour law developments affecting employers. A supervisor may suggest taking comp time to you as an flsa nonexempt employee, but you have the right to choose the comp time or to choose overtime pay for the irregular overtime you worked on thursday. Private employers use of comp time in lieu of overtime. Employees of a private housing development were granted summary judgment on their claim that their employer unlawfully provided compensatory time off in lieu of overtime wages. Compensatory time off is paid time off the job which is earned and accrued by an employee in lieu of immediate cash payment for employment in excess of the statutory hours for which overtime compensation is required by section 7 of the flsa. The real benefit of comp time to public employers is that it smooths out their payroll costs over time, helping them avoid spikes in any pay period due to employee overtime.
These benefits are considered to be a matter of agreement between an employer and the employees. Flsa faqs fair labor standards act flsa information. The fair labor standards act has two exceptions from its overtime pay rules for nonexempt employees who work different numbers of hours from week to week. Fair labor standards act flsa compensatory leave frequently asked questions nonops 1. Jul 28, 2015 another reader wondered if banking flex time would be an illegal use of comp time by a private employer. The fair labor standards act flsa can be found under title 29 of the united states code, with the portions relating specifically to public employees in subtitle b, chapter v, subchapter a, part 553. Comp time generally is not permissible in the private sector. May 05, 2017 however, putting aside various nuances and state law differences, it has long been the case that the fair labor standards act flsa requires private sector employers to pay nonexempt employees timeandahalf for all work performed beyond 40 hours in a workweek. This is in response to a request from your organization for an opinion concerning the application of section 7o of the fair labor standards act flsa to a compensatory time bank which includes both flsa and nonflsa compensatory time. Johns boss could be exposing his company to a lawsuit. As long as this time is recorded separately from flsa comp time, this other comp time is not subject to the requirements applicable to flsa comp time such as the 240 or 480 hour limit, or the requirement that it. May 01, 2011 san antonio metropolitan transit authority resulted in the flsa being applied to cities and counties, congress amended the flsa to add a new section 7o to the law.
The flsa was enacted in 1938 and initially mandated a maximum 45hour workweek with time andahalf pay for overtime. The flsa was enacted in 1938 and initially mandated a maximum 45hour workweek with timeandahalf pay for overtime. Another reader wondered if banking flex time would be an illegal use of comp time by a private employer. For example, it can be earned if you are traveling outside normal work hours for agencyrelated work purposes but not if you are on unionrelated business. Exemption for employees in computerrelated occupations. An employer may grant particular comp time in lieu of overtime and must ensure that comp time is granted at time and one half of the hours worked beyond the regular workweek. This provision, however, does not apply to other compensatory time. Executive, administrative, and professional fact sheets. Understanding overtimecompensatory time and the flsa workweek overtimecompensatory time and the flsa workweek under the fair labor standards act flsa, nonexempt employees earn overtime or compensatory time at one and onehalf times the amount of time physically worked in.
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