April 10, 2013

The comp time myth – changes on the way?

Posted in Compensatory Time Off, Fair Labor Standards Act, Overtime, Uncategorized tagged , , , , , , at 9:25 am by Tom Jacobson

Strange fascination, fascinating me
Changes are taking the pace
I’m going through

Changes — David Bowie, 1971

time clockLast week in The Comp Time Myth I commented on how the Fair Labor Standards Act (FLSA) prohibits the use of compensatory time (that is, paid time off in lieu of overtime pay) by private sector employers. That may be about to change.

Yesterday, U.S. House Republicans, led by Rep. Martha Roby (R-AL), introduced the Working Families Flexibility Act of 2013 (HF 1406). The law would amend the FLSA to allow private sector employers to provide paid time off for overtime hours worked. According to Rep. Roby, the Act:

• Allows employers to offer employees a choice between cash wages and comp time for overtime hours worked.  Employees who want to receive cash wages would continue to do so.

• Protects employees by requiring the employer and the employee to complete a written agreement to use comp time, entered into knowingly and voluntarily by the employee.

• Retains all existing employee protections in current law, including the 40 hour work week and how overtime compensation is accrued. The bill adds additional safeguards for workers to ensure the choice and use of comp time are truly voluntary.

•  Allows employees to accrue up to 160 hours of comp time each year.  An employer would be required to pay cash wages for any unused time at the end of the year. Workers are free to ‘cash out’ their accrued comp time whenever they choose to do so.

What you need to know: Despite the tremendous changes that have taken place in society — and particularly in the workplace  — over the last 75 years, the FLSA has not been substantially revised since it was passed in 1938. It’s time for a change. By removing the comp time prohibition, the Working Families Flexibility Act would give employers and workers a much-needed tool for creating the flexible workplaces that are necessary to meet the needs of today’s American families. Contact your congressional delegation to express your views on this proposed change.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA


  1. Michele Spencer said,

    If an employer offers PTO instead of sick leave, does that employer have to comply? Either way, is this truly voluntary participation?

    • Tom Jacobson said,

      Offering PTO is no substitute for overtime. If a private-sector non-exempt employee works more than 40 hours in a workweek, s/he is entitled to be paid for the overtime. The employer cannot withhold the payment for overtime and instead add the extra hours to the employee’s PTO account or put those hours into a comp time “bucket” for later use.

      • Michele Spencer said,

        I understand the OT payment requirement. I didn’t pose my question properly and got two issues confused with each other. This is obviously different,than what I was originally thinking. Sorry to bother you AND for appearing completely inept. You may know what I confused it with- extending sick leave to care for an employee’s dependents. It appears that if an employer offers PTO they may be exempt from having to adopt the extended sick leave policy…

  2. Tom Jacobson said,

    Michele, it seems like there are a number of issues here. Feel free to contact me off-line if you’d like to discuss this in more detail.

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