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Overtime or Comp Time?

Changes may be coming to how overtime can be handled by your employer.  This week, the U.S. House of Representatives, on a party-line vote, passed the Working Families Flexibility Act.  The legislation moves to the Senate, where it faces an uncertain future.  The legislation is opposed by Democrats in its current form, and the Republicans who support it presently do not have the necessary 60 votes to stop any filibuster.  If passed, President Trump is expected to sign it into law.

The legislation is an amendment to the Fair Labor Standards Act (FLSA).  Currently, private employers may not provide “comp time” in lieu of overtime for hours worked by non-exempt employees over 40 in a work week.  If a non-exempt employee works overtime, the employer is required to pay them overtime, and it violates the FLSA if it provides comp time instead of overtime.  If enacted, the legislation would enable employees to earn compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation would otherwise be required.

There are advantages and disadvantages to this proposal for employees.  Among the advantages to employees is that the decision of whether to accept comp time in lieu of overtime rests entirely with the employee and not the employer.  Employees remain perfectly free to demand overtime pay.  Moreover, the legislation allows employees to choose comp time for any reason they choose.  An employee can use comp time to take the kids to the doctor, or even just to get away for a long weekend.  The flip side is that the employer has the final decision on when the comp time can be taken and can deny comp time leave for a particular day or time period on the grounds that an absence on a given day would “unduly disrupt” business operations and specify an alternative date for the comp time that may very well be inconvenient to the employee.  It is for this reason that opponents of the bill argue that the “flexibility” that the legislation provides to employees is illusory.

The employment law attorneys at The Herron Law Offices will continue to monitor this legislation and will post further updates.

Ohio attorney Mark Herron has been practicing law in Cleveland and Northeast Ohio for over 20 years. Mark opened his law firm in Cleveland in 1993 and since then has concentrated his practice in a variety of areas, including employment law, bankruptcy law, domestic relations law, personal injury, insurance law, business law and litigation.

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