Changes in Comp Time Rules Coming?

Jim is a technician with XYZ Corp. He's non-exempt (hourly) and worked 42 hours last week. Jim's supervisor has asked Jim if he'd like to take 3 hours off next Friday as comp time instead of being paid cash for his overtime last week. Is this OK? Does it matter if Jim would prefer the comp time to cash?

The answer to both questions as of today is "no." Only government workers are allowed to take comp time in lieu of overtime pay.

The Good News:   The U.S. House of Representatives passed HR 1180, sponsored by Virginia Foxx of NC and dubbed The Working Families Flexibility Act, on May 2. This bill, if approved by the Senate, would allow private sector employers similar rights to those enjoyed by public sector folks to decide if they'd prefer cash or time off. The Society for Human Resource Management (SHRM) has been an advocate for this bill.

The Bad News #1:  HR 1180 had zero support from Democrats in the House and none is expected from Senate Democrats either, who are anticipated to filibuster the bill. So its passage is iffy at this point.

The Bad News #2:  If you are a private employer and you are granting comp time to your non-exempt employees who work overtime rather than paying them time plus 1/2, you are likely running afoul of the Fair Labor Standards Act. It doesn't matter whether it's being imposed by management or requested by the employee, either scenario is illegal. 

This doesn't apply to shifting schedules around during the same workweek. If XYZ's official workweek is Sunday through Saturday and Jim worked 10 hours on Monday then 8 hours each on Tuesday, Wednesday and Thursday, then worked only 6 hours on Friday for a total of 40 for the week - that's fine (in most states other than California). But Jim is not allowed to work 10 hours on Monday, 8 hours each day from Tuesday through Friday and carry-over comp time earned this workweek into a future workweek, even if the comp time is calculated at time + 1/2.

And finally, avoid using the term "comp time" in emails or in formal policy language when referring to exempt workers. This can compromise those employees' exempt status in the eyes of the DOL and IRS. If you have an exempt employee who put in a lot of hours in week 1 and knocks off early on Friday of week 2 - don't call that comp time - they're simply exempt.