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Who Controls Comp Time?

To stamp out the "evils of overwork" rampant in America in the early decades of the twentieth century, Congress enacted the Fair Labor Standards Act (FSLA) of 1938. The original FLSA applied only to private-sector employers, requiring them to pay their hourly paid employees time and a half for every hour worked over 40 hours per week. In 1966, Congress expanded the FLSA's overtime compensation protection to include state and local government employees.

In the mid-1980s, however, the country found itself in an era of acute budget pressures on state and local governments--pressures exacerbated by the overtime cash payment requirements of the FLSA. In response, Congress in 1985 again amended the FLSA to allow public-sector employers, with the agreement of their employees, to pay "time" rather than "cash" for every hour worked over 40 hours a week. Under this arrangement, an employee would receive 1 1/2 hours of "comp time" at full pay for every hour worked above 40 per week, up to a limit of 240 hours of comp time. Above the 240-hour limit, the employer would have to pay cash for an employee's overtime. Further, the FLSA provides that an employee is assured of being able to use his or her comp time within a reasonable time of earning it unless this would "unduly disrupt" the public-sector employer.

This arrangement has worked well over the years. Governments have additional flexibility to meet their budgets. Public-sector employees have additional protection and reward for overtime work, being able to "bank" up to 240 hours of comp time, and once reaching this limit, receiving 150 percent of their regular hourly rate. Further, an employee is entitled to "cash out" accumulated comp time when he or she leaves the job or retires.

In Harris County, Texas, 127 deputy sheriffs agreed to accept comp time in lieu of overtime cash payments. Many of these deputies accrued significant comp time, some having reached the 240-hour limit. Harris County thus became concerned that it didn't have the budgetary resources to pay time and a half to deputies who had reached the 240- hour cap, or to pay the "cash out" to deputies who transferred to other jobs or retired. Seeking a way to reduce accumulated comp time, Harris County adopted a "compensatory time" policy that authorized the sheriff's "bureau commanders" to set "maximums" below which a deputy must keep his or her comp time. When the deputy approaches this internal maximum, the person is advised to take steps to reduce the number of accrued hours. If the deputy does not comply, the commander is authorized to order the deputy to take comp time at a time suitable to that sheriff's bureau.

The deputies sued, filing a class action case against the county in federal District Court, arguing that the FLSA provides the one and only method for using comp time, and that is at the employees' request per the agreement between the employee and the employer. The Harris County policy, they argued, thus violated the FLSA by authorizing the employer to control when comp time will be used and when comp salary will be paid. The court agreed, holding that accumulated comp time and salary must be treated the same way and that employees have a right to use comp time when they so choose.

Harris County appealed to the Fifth U.S. Circuit Court of Appeals, which reversed, holding that because the FLSA was silent on the issue, the FLSA thus did not prohibit the county from implementing its compensatory time policy. This Fifth Circuit decision is in concert with the Ninth Circuit but is at odds with an Eighth Circuit decision that struck down a similar policy compelling compensatory time use. Noting this division among the circuits on the issue, the Supreme Court decided to hear the case Christensen v. Harris County.

The Court, rejecting the deputies argument, reasoned that once a "comp time" agreement was reached between the employer and employee, the FLSA only provided a "minimal guarantee that an employee will be able to make some use of compensatory time when he requests to use it." Thus, the FLSA is "better read not as setting forth the exclusive method by which compensatory time can be used, but as setting up a safeguard to ensure that an employee will receive timely compensation for working overtime." To read the FLSA otherwise would be to convert the FLSA's "shield into a sword." Thus, the Court concluded, "the better reading of [the FLSA] is that it imposes a restriction upon an employer's efforts to prohibit the use of compensatory time when employees request to do so; that provision says nothing about restricting an employer's efforts to require employees to use compensatory time. Because the statute is silent on this issue and because Harris County's policy is entirely compatible with [the FLSA]," the county's compensatory time policy was held not in violation of the FLSA.

This decision clearly shifts control of the use of comp time in the public sector from the employee to the employer. How it will play out across the country remains to be seen. Governments may follow Harris County's lead and start to aggressively compel and control the use of their employees' comp time. Those same employees may well push to reopen negotiations on their comp time agreements. Or, in the end, Congress may step in and yet again amend the FLSA.n

David C. Slade has been a member of the U.S. Supreme Court bar since 1986. In addition to practicing law, he writes freelance from his home in Bowie, Maryland.
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Author:Slade, David C.
Publication:World and I
Article Type:Brief Article
Geographic Code:1USA
Date:Jul 1, 2000
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