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Could Comp Time be Coming to the Private Sector?

Regular readers of this blog and attendees of this month’s Lunch and Learn Seminar know that compensatory time off, A.K.A. comp time, is a top wage and hour myth to private sector employers.  For more than 30 years, non-exempt public sector employees have been able to accept comp time instead of receiving overtime pay for hours worked in excess of 40 in a workweek.  Although such an arrangement is not available to private sector employees under the Fair Labor Standards Act (FLSA), that may soon change.

Republican legislators in both houses of the United States Congress have introduced a bill that would amend the FLSA to give non-exempt private sector employees the option of receiving comp time in lieu of overtime pay.  The bill, known as the Working Families Flexibility Act of 2017, would allow eligible employees – those who have worked at least 1,000 hours for the employer in the past 12 months – to earn 1.5 hours of comp time for every hour of overtime worked in a given workweek.  Importantly, an employee must “knowingly and voluntarily” enter into a written agreement with the employer regarding comp time before the overtime work is performed.  The bill would also require an employer to grant an employee’s request to use accrued comp time within a “reasonable period” after the request unless doing so would “unduly disrupt” the employer’s operations.  Employees could accrue up to 160 hours of comp time per year and any accrued, unused time would be paid out at the end of the year and upon the employee’s separation from employment.

As the legislative and executive branches of the federal government are controlled by Republicans, employers would be wise to keep an eye on this bill.  We will be sure to update you on any key developments.  For questions about this or any other labor and employment topic, please do not hesitate to contact a member of our Labor and Employment Department.