"Comp time" for private sector employees: What's not to like?

Little League.flickrCC.RobBixby
Paid time off to watch your little slugger - priceless!

House and Senate Republicans have introduced legislation -- the Working Families Flexibility Act of 2017 -- that would amend the Fair Labor Standards Act to allow private sector employers to provide "comp time" to employees in lieu of overtime pay. I've read the House version of the bill, and I'm having a hard time finding anything to dislike.

A few weeks ago, I said that I thought the FLSA needed to be updated to better reflect our more flexible workplaces, but I admitted that I didn't really know how to accomplish that while still preserving employee rights. The GOP bill seems to be a healthy step in that direction.

I think employees might like love the option of having extra time off instead of overtime pay, and the House bill appears to have plenty of safeguards to protect employees' rights. Here's the rundown:

Generally. If both the employer and the employee agree (more on this in a minute), or if it's provided in a collective bargaining agreement, the employer can provide "comp time" hours at the rate of one and a half hours for every hour of overtime that the employee works. So, for example, if I work 45 hours this week, instead of five hours of overtime pay, I would get 7.5 hours of comp time put in my bank (5 overtime hours times 1.5 = 7.5 hours).

Use of comp time. If an employee asks to use his or her accrued comp time, the employer must grant the request "within a reasonable period" after the request as long as doing so will not "unduly disrupt the operations of the employer."

Learn to draw!

Limits, payouts. The limit on accrued comp time is 160 hours per year. Any comp time not taken by the end of the calendar year (or another year designated by the employer) would be paid out at the employee's regular rate when the comp time was accrued or the employee's current regular rate, whichever is higher. The payout would have to be made no later than 31 days after the end of the "comp time year." If employment terminates voluntarily or involuntarily, the employer is required to pay out all accrued comp time to the employee.

Changes of plan. If the employer gives 30 days' notice to the employee, it can pay out any accrued comp time that exceeds 80 hours for the year. The employer can discontinue comp time whenever it wants by providing 30 days' prior notice to the employees.

The employee also has the right to stop participating in the comp time arrangement at any time. The employee also may provide a written request to be paid for all accrued comp time, and the employer must provide the payout within 30 days.

All Work No Play.flickrCC.JacobHaddon
Write that novel!

Employee protections. According to an article in Bloomberg BNA, Democrats in Congress believe that this legislation will result in abuse of workers. I'm not seeing that. Here are the protections for employees in the House bill:

*The employee cannot agree to a comp time arrangement until he or she has worked for the employer at least 1,000 hours in the past 12 months, and the employment has to be continuous. (I assume that this is intended to prevent overreaching with new employees, or with contingent workers, who might be more insecure and therefore more likely to feel pressured to accept the arrangement.)

*The agreement must be entered into before the overtime work is performed, and it must be in writing or otherwise appropriately documented.

*The comp time arrangement must have been entered into "knowingly and voluntarily" by the employee and cannot be a take-it-or-leave-it "condition of employment."

*It would be unlawful for an employer to "directly or indirectly intimidate, threaten, or coerce or attempt to intimidate, threaten, or coerce" the employee in an attempt to influence the employee's decision to either accept or decline a comp time arrangement, or to require the employee to use comp time.

*Employers who violate the comp time provisions are liable for the amount of accrued comp time plus that much again as liquidated damages, minus the comp time that the employee had already used.

I like it. I'd love to hear from you, especially those of you who think it might be abused. I've never heard a public sector employee complain about comp time, but maybe I hang with the wrong people.

Easter bunny.flickrCC.MikeProcario

BUNNY ALERT! Because of the Easter holiday, this will be our "Friday" blog post. We'll be back to our regular schedule next week. We wish you all a happy Easter, a happy Passover, and a good weekend!

Image Credits: From flickr, Creative Commons license. T-ball girl by Rob Bixby; charcoal drawing by valkyre131; creepy "novel" by Jacob Hadon; bunny by Mike Procario.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
Continue Reading



Back to Page