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Your Rights Comp Time

Advertisement: Outten & Golden LLP

Some employers allow their employees to take time off after working extra hours. This is known as compensation or comp time. Surprisingly, in most cases this practice is illegal due to a fear of employer abuse. However, there are possible remedies for employees who truly value comp time. To learn more about comp time, read below:

1. What is compensatory ("comp") time?

2. Are there are any states which allow the employer to give their employees comp time?

3. Can't governmental employees receive comp time?

4. But what if I want comp time? I'd rather have the time off to spend with my family than the extra money.

5. What if I have not been given the comp time I have been promised?

6. Who enforces the law?

7. What are the remedies available to me?

8. How can I file a complaint / how long do I have to file?

1. What is compensatory ("comp") time?

You may be familiar with the term "comp time," which refers to the practice of allowing an employee to take extra time off from work after a long week, instead of being paid overtime wages. What you may not know, however, that in most situations, the practice is illegal, if you are working for a private, non-governmental employer, and you are a "non-exempt" employee otherwise eligible for overtime pay.

For example, if you work 56 hours in a week and you are told that you can have two eight-hour days off in some other week to offset the extra 16 hours, this is probably a violation of the law. You are supposed to be paid overtime for the 16 hours you worked in the first week.

2. Are there are any states which allow the employer to give their employees comp time?

There are some states who allow private employers to give employees comp time instead of overtime pay. However, each state's law can be different, and the circumstances under which comp time can be granted are often complex. If you have questions about whether comp time is allowed under your state's law, then you may wish to contact the agency in your state which handles wage and hour/labor standards violations, listed on our site's state government agencies page.

3. Can't governmental employees receive comp time?

Yes. State or government agencies may give their employees comp time instead of overtime wages, but only if:

There is an agreement arranged by union representatives; or

If the governmental employer and the employee agree to the comp time arrangement before the extra work begins (not after the fact.)

If compensatory time is legally allowed, it has to be awarded at the rate of one and one-half times the overtime hours worked (not hour-for-hour) and the time off must be taken during the same pay period that the overtime hours were initially worked (not weeks or months later.)

4. But what if I want comp time? I'd rather have the time off to spend with my family than the extra money.

In learning about the law, you might find it to be frustrating that you cannot have comp time, even if you and your employer both want it. Part of the reason, however, that there are overtime laws, is because these laws help discourage employers from overworking current employees and failing to hire additional workers. While a system that is truly voluntary and permits employees to choose the option best for them (additional pay or time off) might be ideal, the reality is that most workers have little say in their hours or working conditions, and are unlikely to be able to exercise an option that is not in the employer's interest.

However, workers who want time off instead of overtime are not completely without flexibility, if their employers want to accommodate them. Some of the same goals can be accomplished by rearranging the work schedule within the same week as the extra time is worked.

For example, a worker who normally works an eight-hour day, Monday to Friday, needs to work several ten-hour days to meet a deadline. Since overtime pay only kicks in when a worker has spent more than 40 hours on the job in a particular workweek, the worker could work ten hours each day between Monday and Thursday, and take Friday off. The worker would still be paid for a 40-hour workweek, with no overtime pay due.

Another way to achieve the same outcome is to receive overtime pay in one week, and then reduce the number of hours worked the next week so that the worker's paycheck remains constant.

For example, a worker who makes $10 per hour works fifty hours the first week of his or her pay period, for a gross weekly paycheck amount of $550 (forty hours paid at $10 and ten hours paid at the time-and-a-half rate, $15.) If the worker worked only twenty-five hours the second week of the pay period, the worker would earn $250 in gross pay, but his or her paycheck would be the same ($800) at the end of the two-week pay period. Notice, however, that under this arrangement, the employee must take time off at the time-and-a-half rate applicable to overtime hours, and not simply hour-for-hour.

5. What if I have not been given the comp time I have been promised?

As noted above, many so-called comp time arrangements do not comply with the law. You may have a claim against your employer for unpaid wages if your employer's comp time policy doesn't follow the law. Read below for more information about how you can file a claim for unpaid wages.

If you believe you have a claim against your employer, then you should contact a government agency and/or a lawyer in your area to help you determine how to proceed. Depending on the amount of wages owed you, the amount may be too small for a lawyer to pursue a case against your employer on your behalf, but there are federal and state government agencies that can help you, even if you do not have a lawyer.

If you do not get the help you need from the agencies you contact, small claims court is also an option. Because of the small amount of money involved, you may be able to pursue a claim against your employer more quickly and inexpensively in small claims court, and you will not need a lawyer.

6. Who enforces the law?

The FLSA is enforced by the Wage-Hour Division of the U.S. Department of Labor. Wage-Hour's enforcement of FLSA is carried out by investigators stationed across the U.S., who conduct investigations and gather data on wages, hours, and other employment conditions or practices, in order to determine whether an employer has complied with the law. Where violations are found, they also may recommend changes in employment practices to bring an employer into compliance.

It is a violation to fire or in any other manner discriminate against an employee for filing a complaint or for participating in a legal proceeding under FLSA.

Willful violations may be prosecuted criminally and the violator fined up to $10,000. A second conviction may result in imprisonment. Employers who willfully or repeatedly violate the minimum wage requirements are subject to a civil money penalty of up to $1,000 for each such violation.

The FLSA makes it illegal to ship goods in interstate commerce which were produced in violation of the minimum wage, overtime pay, child labor, or special minimum wage provisions.

To contact the Wage-Hour Division for further information and/or to report a potential FLSA minimum wage violation, call:

Toll Free: (866) 4USWAGE (866-487-9243)
TTY: (877) 889-5627 (available Monday-Friday 8 a.m. to 5 p.m. Eastern Time)
You may also contact your local WHD office.

If you need further information about your state's comp time law and/or wish to report a potential state comp time law violation, then you may wish to contact the agency in your state which handles wage and hour/labor standards violations, listed on our site's state government agencies page.

7. What are the remedies available to me?

There are several different methods under the FLSA for an employee to recover unpaid wages; each method has different remedies.

Wage-Hour may supervise payment of back wages.

The Secretary of Labor may bring suit for back wages and an additional penalty, called "liquidated damages," which can be equal to the back pay award (essentially doubling the damages) if an employer willfully violated the statute.

An employee may file a private lawsuit for back pay and an equal amount as liquidated damages, plus attorney's fees and court costs. An employee may not bring a lawsuit if he or she has been paid back wages under the supervision of Wage-Hour or if the Secretary of Labor has already filed suit to recover the wages.

The Secretary of Labor may obtain an injunction to restrain any person from violating FLSA, including the unlawful withholding of proper minimum wage and overtime pay.

Your state law may have different methods for recovery of unpaid wages, and different remedies to be awarded to those who succeed in proving a violation. For further information, please contact the agency in your state which handles wage and hour/labor standards violations, listed on our site's state government agencies page.

8. How can I file a complaint / how long do I have to file?

To file a complaint for unpaid wages under the FLSA, you may either go to the WHD, which may pursue a complaint on your behalf, or file your own lawsuit in court (which may require you to hire an attorney).

Do not delay in contacting the WHD or your state agency to file a claim. There are strict time limits in which charges of unpaid wages must be filed. To preserve your claim under federal law, you must file a lawsuit in court within 2 years of the violation for which you are claiming back wages, except in the case of an employer's willful violation, in which case a 3-year statute applies. However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. Yet if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the state and federal administrative agencies.

Your state labor standards law may have different deadlines for recovery of unpaid wages and/or comp time. For further information, select your state from the map below or from this list.


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