Comp Time Again

njjel

I'm in need of clarification on the comp time issue for non-exempt union employees who work a 35 hour work-week for a private corporation in NJ. Can comp time be put in a comp bank for any hours worked between 35 and 40 without being in violation? I know we can give them comp time if it's used inthe same week, but what about putting it into a comp bank for future use? Currently it is written that way in our union contracts. We do pay overtime for hours worked over 40. Thanks for your help!

Terry

You answered my next question. As long as your are paying non-exempts OT after 40 hours there should not be a problem. The comp bank is not instead of OT but in addition to OT.

njjel

However, I hve been told that in NJ employees must be paid "for all hours worked". We are NOT paying them for the time worked between 35 and 40 hours but are giving them hour for hour comp time which goes into their comp time bank. Under FLSA and NJ law how do we stand?

Terry

Anything between 35-40 hours is not paid but put in a comp time bank? And after 40 they start to be paid again at 1 1/2? I am inclined to say you may have a problem. Can you paste the exact language of the contract into the BB?

santire

Just to make sure we are using the term “comp time” as it is typically used which is to designate time off accumulated in place of pay for time worked. The basic premise of the FLSA is that time worked is time paid, except for the public sector. No exception exists allowing comp time in the private sector. Because of the exception in the public sector, a public sector employer can give comp time in place of pay for time worked if the employee has agreed to such an arrangement. The reason for this is a specific amendment to the FLSA allowing comp time for public sector employees. In the public sector, the employee can agree to this through a union contract or, if not covered by a union with such a contract provision, by individual consent. None of this exception applies in the private sector. In the private sector, overtime must be paid regardless of whether in a union contract comp time provision or not. I too would like to see your union language. Not only would it be in violation of the FLSA but it would also differ from the position taken by unions in Congress where they have been opposed to passage of the Working Families Flexibility Act (so called by the Act’s sponsors) which would allow comp time in the private sector in situations where employees agree including union provisions. That bill has been pending for at least a couple of years and I have seen no notice that it has passed yet. As to the appplication of comp time for time worked less than 40 hours, again time worked is time paid in the private sector and cannot be varied. Of course this does not mean that an employer cannot allow an employee who has worked 40 hours before the end of the work week to take time off for the rest of the week. This is not comp time and cannot be accumulated to be taken some time later in place of pay. An employer per the FLSA can require nonexempt employees to work as few or as many hours as desired by the employer (subject to a union contract as well as common sense management) as long as time less than 40 is paid regular rate and over 40 is paid time and a half. California is an exception to this in that they require overtime for excess of 8 hours in a single day for a nonexempt employee.

njjel

Terry - Our employees work a 35-hour work week. On occasion they may have to work 39 hours in a particular week and they can take time off for the four hours at a later date (and be paid for them). Are we still in violation of FLSA and/or NJ Wage & Hour regulations?

Terry

If they are non-exempt the answer is they cannot. Time worked must be paid in the workweek it is earned.