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A recent decision by the Fifth U.S. Circuit Court of Appeals
addressed the issue of whether public sector employers could require employees
to use comp time earned under the Fair Labor Standards Act (FLSA) before
using earned vacation time. The case involved guards in a state correctional
facility in Louisiana. Under state policy, when an employee requested vacation, the employee was required
to first use any accrued comp time. If the employee had requested to use more
time than was covered by available comp time, the balance was then charged
against the employee's vacation balance.
The employees in question filed suit against their employer alleging
that this policy violated the FLSA. A district court found
in favor of the employer and the plaintiffs appealed.
The
plaintiffs argued that the language of the FLSA gave employees the right to
control which account would be charged when leave was taken. This was based on
the provision which states that an employee who has accrued comp time and
requests to use it "shall be permitted by the employee's employer to use
that time within a reasonable period after making the request if the use of the
compensatory time does not unduly disrupt the operations of the public
agency."
In addition, the plaintiffs brought out the 1994 ruling
in Heaton v. Moore (Eighth U.S. Circuit Court of Appeals) that prohibits an
employer from forcing an employee to use earned FLSA comp time. In the Heaton
case, the employer was found to be forcing employees to use their earned comp
time and the general stance of the court was that the employer could not tell
employees when to use their comp time any more than they could tell employees
when and how to spend their cash overtime earnings.
The Fifth Circuit,
however reasoned that the Heaton decision did not apply in this situation. In
Heaton, the employees were being forced to take their earned comp time. In this
case, the employees had already asked for leave time and were not being forced
to take time off against their will. Therefore, it was not a violation of the
FLSA to require employees to use their comp time prior to using vacation time.
In its ruling, the Court stated there is no real difference between comp and
earned annual leave. Both give the employee time off with pay and it should not
matter which type of leave is used when an employee asks for time
off.
Counties may want to consider revising their leave policies to
reflect this new decision. This would be one way of helping to control excessive
balances of comp time. However, another issues comes into play which should be
considered. A morale problem could develop if a county has a "use it or
loose it" vacation policy which requires employees to use earned vacation
before a certain date or it will be forfeited. In this case, requiring use of
comp time first would be more likely to cause the employee to loose some or all
of his or her earned vacation.
While allowing state and local
governments the right to pay for overtime in the form of comp time was designed
to help governments handle the cost of overtime, it has also created problems
for many counties. Comp time can be a silent liability. If not monitored
closely, employees may reach the maximum before the county is really aware of
what is happening. Then, when these employees terminate, all unused comp time
must be paid. For most employees, this could be up to six weeks of pay and up to
twelve weeks for law enforcement employees. For this reason, it is important for
supervisors to carefully control overtime to prevent such
liabilities.
One final thing to remember on comp time use is how it
coordinate with leave under the Family and Medical Act (FMLA). While vacation
and sick leave use can run concurrently with FMLA leave, this is not true of
comp time. If an employee elects to use comp time for an absence that is
eligible for leave under the FMLA, that time cannot be charged against the
employee's 12-week FMLA leave eligibility.
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