How Much Comp Time Should Federal Employees Get?

By on January 23, 2008 in Court Cases, Current Events with 0 Comments

The Federal Circuit has ruled against un-named employees of the Social Security Administration in their challenge against the agency’s practice of granting compensatory (comp) time and credit hours in lieu of overtime pay to nonexempt employees.

In Jane Doe 1, Jane Doe 2, and Jane Doe 3 v. United States, C.A.F.C. No. 2007-5107, 1/22/08, the anonymous plaintiffs unsuccessfully argue that the SSA practice violates the Fair Labor Standards Act and also breaches the national union agreement between SSA and the American Federation of Government Employees, AFL-CIO.

SSA and most other agencies use the practice of granting credit hours on a one-for-one basis for hours worked in excess of the basic required workweek as part of the flexible work schedule program (flexitime). And in other circumstances, the SSA permits employees to accrue compensatory time off in lieu of overtime pay, also on a one-for-one basis.

Plaintiffs in this case presumably opted to participate in flexitime or to accrue comp time in lieu of overtime pay. Now they try to persuade the courts that the FLSA requires that credit hours and/or comp time must be calculated by crediting an employee with one and a half hours for each extra hour worked. Not so, says the appeals court.

First, with regard to credit hours, the court rules that the plaintiffs’ contention is “directly contrary to the Federal Employees Flexible and Compressed Work Schedules Act of 1982. The court points out that by statutory definition credit hours are not overtime hours. (Opinion, pp. 16-17)

Further, citing regulations issued by the Office of Personnel Management that permit granting comp time one a one-for-one hour basis, the court has this to say: “Those provisions…unambiguously show that OPM intended the amount of compensatory time granted…to equal the amount of overtime work the employee performed, rather than the amount of overtime pay that the employee would otherwise be entitled to receive.” (p. 18)

Finally, the court is not impressed by the argument that the agency’s policy violates its national union agreement: “We reject that argument because…federal employee benefits and pay are government by statute, not by contract.” (p. 18; citations omitted)

Notably in its decision, the court points out that these employees were not deprived of their FLSA benefits. They “were and are free to elect to receive monetary compensation for their overtime at a rate of one and one-half times their regular rate of pay instead of using the compensatory time for time off from work.” (p. 20)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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