Some employers allow their employees to take time off after working extra hours. Substituting extra time off for overtime pay is known as compensation (“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:
- What is compensatory (“comp”) time?
- Are there are any states that allow an employer to give employees comp time?
- Can’t government employees receive comp time?
- Does it matter whether I am an exempt or nonexempt employee?
- May a government agency require an employee to take comp time?
- Are there any time limits on when a government agency can require an employee to use accrued comp time?
- But what if I want comp time? I’d rather have time off to spend with my family than the extra money.
- What if I don’t get the comp time promised to me?
- Who enforces the law?
- What are the remedies available to me?
- 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.” Comp time refers to the practice of allowing an employee to take extra time off from work after a long week, instead of overtime pay. What you may not know, is that in most situations, the practice is illegal, if you are working for a private, non-government employer, and you are a “non-exempt” employee who is otherwise eligible for overtime pay.
For example, if you work 56 hours in a week and you get two eight-hour days off in some other week to offset the extra 16 hours, this might be illegal. You should get paid overtime for the 16 hours you worked in the first week.
2. Are there are any states that allow an employer to give employees comp time?
There are some states that allow private employers to give employees comp time instead of overtime pay. Each state’s law is different, and the circumstances under which employees can receive comp time may be complex. If you have questions about comp time under your state’s law, you can contact the agency for wage and hour/labor standards violations in your state. You can find contact information on our site’s state government agencies page.
3. Can’t government 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 government employer and the employee agree to the comp time arrangement before the extra work begins (not after the fact.)
Employers may give comp time in place of regularly scheduled overtime work only for employees who must work overtime hours under flexible work schedules. Additionally, comp time may be approved instead of overtime pay for irregular or occasional overtime work.
4. Does it matter whether I am an exempt or nonexempt employee?
Yes. Whether you are entitled to overtime pay for working more than 40 hours per week depends on your exemption status under the Fair Labor Standards Act (FLSA).
Exempt employees are not entitled to overtime pay. Under the FLSA, exempt employees are only entitled to receive their base salary.
Nonexempt employees must be paid overtime for time worked beyond 40 hours in a given week. Under the FLSA they are entitled to one-half times their regular rate for the overtime hours worked.
5. May a government agency require an employee to take comp time?
It depends. Agencies may require an exempt employee to take comp time instead of overtime for irregular or occasional overtime work, but only if the employee’s rate of basic pay is above the rate of GS-10.
A government agency may not require mandatory comp time for wage earning employees or as a substitute for required overtime pay.
6. Are there any time limits on when a government agency can require an employee to use accrued comp time?
Yes. An exempt employee must use accrued comp time within 26 pay periods from the pay period in which they earned it. If it is not used within the 26 pay periods, or if the employee transfers to another agency, the employee may get the earned comp time at the overtime rate. In the alternative, they may forfeit the unused comp time off, unless the failure to use the comp time is due to an exigency of the service beyond the employee’s control.
An FLSA nonexempt employee must also use accrued comp time within 26 pay periods from the pay period during which they earned it. If it is not used within 26 pay periods or if the employee transfers to another agency before the 26 pay period, the employee must be paid for the earned comp time off at the overtime rate.
7. But what if I want comp time? I’d rather have time off to spend with my family than the extra money.
It might be frustrating to learn that you cannot have comp time, even if you and your employer both want it. But overtime laws help discourage employers from overworking employees instead of hiring people when they’re needed. A system that is voluntary and permits employees to choose the option best for them (overtime pay or time off) might seem ideal. In reality, however, 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 best interest.
Workers who want time off instead of overtime pay are not completely without options if their employers want to accommodate them. You and your employer can accomplish this goal by rearranging the work schedule within the same week that you work overtime.
For example, a worker who normally works an eight-hour day, Monday to Friday, needs to work several 10-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 10 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, if a worker who makes $10 per hour works fifty hours during the first week of their pay period, their gross weekly paycheck will amount to $550 (40 hours paid at $10, plus 10 hours paid at the time-and-a-half rate, $15.) If the worker worked only 25 hours during the second week of the pay period, the worker would earn $250 in gross pay, but their 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.
8. What if I don’t get the comp time promised to me?
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 or a lawyer in your area to help you determine how to proceed. Depending on how much in wages is 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.
9. Who enforces the law?
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, to determine whether an employer has complied with the law. Where they find violations, 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 are 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 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 or wish to report a potential state 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.
10. What are the remedies available to me?
There are several different methods for recovering unpaid wages; each method has different remedies.
The Wage & Hour Division may supervise the 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 WHD 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.
11. 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 Wage-Hour Division, 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 Wage & Hour Division or your state agency to file a claim. There are strict time limits within which you must file charges of unpaid wages. To preserve your claim under federal law, you must file a lawsuit in court within two 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 three-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. It may be helpful to consult with an attorney before filing your claim, but 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 or comp time. For further information, select your state from the map below or this list.