Has "Comp Time" arrived in the Private Sector?
Brent C. Diefenderfer
Early this year, Congress reopened discussions into the “Family Friendly Workplace Act” (H.R. H.R. 6025), which, if passed, would amend the Fair Labor Standards Act (FLSA) and authorize private employers to provide compensatory (or "comp") time off in lieu of overtime pay. The public sector already has been using comp time for 20 years and is a very popular option with many employees. However, many private employers mistakenly believe they can implement similar policies in their own workplace. Unless the Family Friendly Workplace Act is passed into law, private employers that use comp time as compensation are violating the FLSA.
Hourly employees must be compensated at a rate of one and one-half times their regular rate of pay for any hours worked in excess of the standard 40 per week. However, under the new law, employees could elect to receive comp time in lieu of overtime payments. Unless the bill is passed, employers who implement their own flexible work schedule violate the FLSA and subject themselves to liability under the law. Unless the Family Friendly Workplace Act becomes law, private-sector employers have limited options when it comes to compensating employees with time off.
The Act includes strong protections for workers to ensure that no worker is forced to select “family time” over traditional cash wages for over time. The choice of whether and when to use “family time” would be made by the employee. Employees would be permitted to use their accrued comp time “within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the employer.” Employees can withdraw from a compensatory time agreement with an employer at any time. However, employers may not make participation in a “comp time” program a condition of employment. Employees may request in writing to be paid cash wages for any accrued, unused compensatory time. Employers must provide these cash wages within 30 days of the request. Employers are permitted to discontinue the comp time policy with 30 days notice to employees, unless a collective bargaining agreement provides otherwise.
The Act is an important piece of legislation that would revise the Fair Labor Standards Act for the first time since it was enacted in 1938. If passed, employees need to be made aware of their rights and employers aware of their obligations under the Act. For more information on Family Friendly Workplace Act and other employment law related topics, turn to CGA Law Firm’s experienced Labor & Employment Law Department.
