“Comp Time” For Private Sector Employees: What’s Not To Like?

by Constangy, Brooks, Smith & Prophete, LLP

Little League.flickrCC.RobBixby

House and Senate Republicans have introduced legislation — the Working Families Flexibility Act of 2017 — that would amend the Fair Labor Standards Act to allow private sector employers to provide “comp time” to employees in lieu of overtime pay. I’ve read the House version of the bill, and I’m having a hard time finding anything to dislike.

A few weeks ago, I said that I thought the FLSA needed to be updated to better reflect our more flexible workplaces, but I admitted that I didn’t really know how to accomplish that while still preserving employee rights. The GOP bill seems to be a healthy step in that direction.

I think employees might like love the option of having extra time off instead of overtime pay, and the House bill appears to have plenty of safeguards to protect employees’ rights. Here’s the rundown:

Generally. If both the employer and the employee agree (more on this in a minute), or if it’s provided in a collective bargaining agreement, the employer can provide “comp time” hours at the rate of one and a half hours for every hour of overtime that the employee works. So, for example, if I work 45 hours this week, instead of five hours of overtime pay, I would get 7.5 hours of comp time put in my bank (5 overtime hours times 1.5 = 7.5 hours).

Use of comp time. If an employee asks to use his or her accrued comp time, the employer must grant the request “within a reasonable period” after the request as long as doing so will not “unduly disrupt the operations of the employer.”


Limits, payouts. The limit on accrued comp time is 160 hours per year. Any comp time not taken by the end of the calendar year (or another year designated by the employer) would be paid out at the employee’s regular rate when the comp time was accrued or the employee’s current regular rate, whichever is higher. The payout would have to be made no later than 31 days after the end of the “comp time year.” If employment terminates voluntarily or involuntarily, the employer is required to pay out all accrued comp time to the employee.

Changes of plan. If the employer gives 30 days’ notice to the employee, it can pay out any accrued comp time that exceeds 80 hours for the year. The employer can discontinue comp time whenever it wants by providing 30 days’ prior notice to the employees.

The employee also has the right to stop participating in the comp time arrangement at any time. The employee also may provide a written request to be paid for all accrued comp time, and the employer must provide the payout within 30 days.

All Work No Play.flickrCC.JacobHaddon

Employee protections. According to an article in Bloomberg BNA, Democrats in Congress believe that this legislation will result in abuse of workers. I’m not seeing that. Here are the protections for employees in the House bill:

*The employee cannot agree to a comp time arrangement until he or she has worked for the employer at least 1,000 hours in the past 12 months, and the employment has to be continuous. (I assume that this is intended to prevent overreaching with new employees, or with contingent workers, who might be more insecure and therefore more likely to feel pressured to accept the arrangement.)

*The agreement must be entered into before the overtime work is performed, and it must be in writing or otherwise appropriately documented.

*The comp time arrangement must have been entered into “knowingly and voluntarily” by the employee and cannot be a take-it-or-leave-it “condition of employment.”

*It would be unlawful for an employer to “directly or indirectly intimidate, threaten, or coerce or attempt to intimidate, threaten, or coerce” the employee in an attempt to influence the employee’s decision to either accept or decline a comp time arrangement, or to require the employee to use comp time.

*Employers who violate the comp time provisions are liable for the amount of accrued comp time plus that much again as liquidated damages, minus the comp time that the employee had already used.

I like it. I’d love to hear from you, especially those of you who think it might be abused. I’ve never heard a public sector employee complain about comp time, but maybe I hang with the wrong people.

Easter bunny.flickrCC.MikeProcario

BUNNY ALERT! Because of the Easter holiday, this will be our “Friday” blog post. We’ll be back to our regular schedule next week. We wish you all a happy Easter, a happy Passover, and a good weekend!

Image Credits: From flickr, Creative Commons license. T-ball girl by Rob Bixby; charcoal drawing by valkyre131; creepy “novel” by Jacob Hadon; bunny by Mike Procario.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Constangy, Brooks, Smith & Prophete, LLP | Attorney Advertising

Written by:

Constangy, Brooks, Smith & Prophete, LLP

Constangy, Brooks, Smith & Prophete, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.