Private Employers Cannot Pay Comp Time
Although it is illegal for private sector employees, some municipal employees can be properly paid with "comp time."
Such employees include: fire protection personnel employed by a fire department including firefighters, paramedics, emergency medical technicians, rescue workers, ambulance personnel, or hazardous materials workers who are: (1) trained in fire suppression, (2) have the legal authority and responsibility to engage in fire suppression, and (3) are engaged in the prevention, control and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.
Also, law enforcement personnel are employees who are empowered by State or local ordinance to enforce laws designed to maintain peace and order, protect life and property, and to prevent and detect crimes; who have the power to arrest; and who have undergone training in law enforcement.
Employees of State and local governments are covered by the FLSA (section 3(s)(1)(C)), and are the only types of employees who may be paid Comp Time in lieu of time and a half overtime pay.
Hours of work include all of the time an employee is on duty at the employer's establishment or at a prescribed work place, as well as all other time during which the employee is suffered or permitted to work for the employer. Under certain specified conditions time spent in sleeping and eating may be excluded from compensable time.
The FLSA requires that all covered nonexempt employees be paid the statutory minimum wage of not less than $6.55 per hour effective July 24, 2008 and $7.25 per hour effective July 24, 2009.
The FLSA requires that all covered nonexempt employees be paid overtime pay at no less than time and one-half their regular rates of pay for all hours worked in excess of 40 in a workweek.
Who May Receive Comp Time?
Section 13(b)(20) of the FLSA provides an overtime exemption to law enforcement or fire protection employees of a public agency which employs less than five employees in law enforcement or fire protection activities.
Section 7(k) of the FLSA provides that employees engaged in fire protection or law enforcement may be paid overtime on a "work period" basis. A "work period" may be from 7 consecutive days to 28 consecutive days in length. For example, fire protection personnel are due overtime under such a plan after 212 hours worked during a 28-day period, while law enforcement personnel must receive overtime after 171 hours worked during a 28-day period. For work periods of at least 7 but less than 28 days, overtime pay is required when the number of hours worked exceeds the number of hours which bears the same relationship to 212 (fire) or 171 (police) as the number of days in the work period bears to 28.
Under certain prescribed conditions, a State or local government agency may give compensatory time at a rate of not less than one and one-half hours for each overtime hour worked, in lieu of cash overtime compensation. Employees engaged in police and fire protection work may accrue up to 480 hours of compensatory time.
An employee should be permitted to use compensatory time within a reasonable period after making the request, if doing so does not "unduly disrupt" the operations of the employer. An employer who refuses an employee's reasonable request to us comp time, is in violation of the FLSA. Thus, an employer cannot be said to be paying proper comp time in lieu of overtime if it fails to allow employees to take such comp time when requested.
Comp Time Payable At Time Of Termination
At the time of termination an employee must be paid the higher of (1) his/her final regular rate of pay or (2) the average regular rate during his\her last three years of employment for any comp time remaining "on the books" when termination occurs.If you believe you have not been paid proper comp time by your employer or former employer OR that your employer is illegally using comp time rather than paying you time and a half for overtime hours, call 1-888-OVERTIME [888-683-7846] or click here for a free consultation today.