House Passes Amendment to Fair Labor Standards Act Which Would Bring Compensatory Time Off To The Private Sector

By David M. Foy, Esq.

If adopted by the Senate, H.R. 1180, titled the “Working Families Flexibility Act of 2017,” would amend the Fair Labor Standards Act of 1938 (codified as 29 U.S.C. 207). The bill would allow private sector employers to offer, and employees to accept, time off in lieu of overtime pay at a rate of 1.5 hours for each hour worked over a 40-hour workweek. The bill has not yet been scheduled for Senate vote.

• Is it mandatory?
Employers are not required to offer a compensatory time option, nor are employees required to accept it if offered. It must be a completely voluntary decision by both parties. An employer may not offer a comp time option if it is contrary to the terms of any applicable collective bargaining agreement.

• What happens once an employee decides to accept comp time?
An employee who has accrued comp time must be given the opportunity to use the time off if requested, so long as it does not cause undue disruption to the employer’s operations. The employee may also request that any accrued comp time be paid out instead.

• Are there limits on how much compensatory time may be accrued?
Accrued comp-time may not be carried over from year-to-year. It must be paid out annually or upon termination. An employee may not accrue more than 160 hours of comp time. An employer also has the option of paying out any comp time earned in excess of 80 hours, after providing the employee with 30 days’ notice.