If you work for an employer who has a “comp” time policy you have likely never questioned the policy.
In fact you may even like the fact that your employer offers you the option to use “comp” time.
Unfortunately, many employees – and some employers – don’t realize that under federal law “comp” time is NOT legal.
The Fair Labor Standards Act, or FLSA, specifically forbids an employer from instituting a policy that allows an employee to use “ comp ” time.
The concept of “comp” time involves “banking” time worked for use at a later time.
For example, suppose you worked 50 hours this week, ten hours of which would be considered “overtime” since they are beyond the maximum 40 hour workweek.
Instead of being paid overtime for those ten hours, however, your employer allow you to “bank” those hours to be used next month when you need ten hours off one week.
Although this type of a system is popular with both employers and employees, the FLSA expressly forbids such a system.
The reason comp time is prohibited under federal law is that it allows an employer to get out of paying an employee overtime as required under the FLSA.
The Fair Labor Standards Act requires a non-exempt employee to be paid time and one-half for all hours worked in excess of 40 hours in a single week.
When overtime hours are “banked” an employee ends up being paid his or her regular hourly rate instead of the overtime rate to which he/she is entitled.
The FLSA does allow a very narrow exception to the prohibition against comp time. Known as the “time off plan” it is explained in the DOL’s Field Operatives Handbook, Section 32j16b as followed:
“To comply with the FLSA and to continue to pay a fixed wage or salary each pay period, even though the employee works OT in some week or weeks within the pay period, the employer lays off the employee a sufficient number of hours during some other week or weeks of the pay period to offset the amount of OT worked so that the desired wage or salary for the pay period covers the total amount of compensation, including OT compensation, due the employee under the FLSA for each w/w taken separately.”
Put simply, unless your employer’s “comp time” policy adheres to the “time off plan”, it is illegal. If your employer has been using a comp time system there is a good chance you are owed back pay for the hours that were “banked” using the system. Contact the experienced Florida employment law attorneys at Celler Legal, P.A. to discuss your situation.