Link to comp time memo

June 1, 2020

To: Fire Chiefs Association of Massachusetts

From: Atty. Jack Collins

Re: Comp Time Rules

As a follow-up to discussions I have had recently with various Chiefs, I have prepared this Memo on some of the rules surrounding Comp Time. In general, as many Chiefs have noted, comp time is similar to “money in the bank” for an employee who can spend it when he or she chooses. So long as it does not “unduly disrupt” the operations of the department, a request to use accrued comp time must be granted within a “reasonable period” after the request is made.[1]   A denial must be based on more than inconvenience.  Unless otherwise agreed, the fact that a replacement will have to be paid at overtime is not a sufficient basis for denying the request.[2] There is a possible exception: In the event that the municipal employer and the union have been living under the terms of a collective bargaining agreement, or possibly even a clear past practice, that use of comp time may be denied where overtime replacement would result, this might be found to be enforceable and not in violation of the Fair Labor Standards Act (FLSA).  

The FLSA allows, but does not require, municipal employers to agree with employees (and their union) that comp time may be accrued. If a disagreement over the use of accrued comp time arises, a municipal employer has the right to stop agreeing to such accrual.  As this would be a change in working conditions, the city or town would have to provide the union with notice and, if they made a timely request, engage in good faith negotiations until reaching agreement or impasse.

Compensatory time agreements may regulate the accrual and use of such time by employees.  An employee could be limited to accruing a certain number of hours (see below for maximum allowed).  Restrictions can also be imposed on how long the hours may be “banked”, when they must be used, and what amount of notice will be required before use is allowed.  A requirement that an employee use up all accrued comp time before taking any vacation time is expressly permitted, even if this means that such employee forfeits accrued vacation as a result.[3]  An employer could also agree to retain the right to “cash out” all or any part of an employee’s accrued comp time at any time or under any mutually agreeable circumstances.  Since accrual requires a mutual agreement, an employer can specify whether and for what work hours compensatory time accrual is permitted.[4]  Similarly, the agreement can provide for any combination of money and comp time so long as they are both calculated at time and one-half.[5] 

Fire departments may allow sworn and civilian employees the option of receiving compensatory time off in lieu of monetary overtime compensation.[6]  The rate must be not less than time and one half the number of hours worked for which such overtime compensation is due.  Exempt employees, such as chiefs and certain “salary exempt” supervisors, may also be permitted to accrue compensatory time off under certain circumstances. Firefighters may accrue up to 480 hours of compensatory time (equal to 320 hours of work at time and one-half).  Other employees whose work involves public safety (e.g., police), emergency response or seasonal activity may likewise accumulate up to 480 hours of comp time.  It is not essential that an employee work exclusively in one of these categories to qualify for the higher cap, so long as some of an employee’s work regularly includes such activities.[7]

It is necessary that there be an understanding or agreement of some kind prior to the work being done.[8]  It is not essential that the agreement be in writing, although that is preferable if confusion is to be avoided.  In any event, a record of such agreement must be maintained by the employer in some fashion.  There is also no need to offer compensatory time off to all employees and it is even lawful to make different comp time arrangements with various employees.[9]

At a minimum, an agreement for compensatory time off in lieu of overtime pay shall include: an agreement by the employee or bargaining representative that comp time is a condition of employment, and some notice (orally or in writing) to the employee that under mutually agreeable conditions accrued comp time may be saved, used or, if the employer is so inclined, exchanged for pay.

[1] Fair Labor Standards Act, 29 U.S.C. §207(o)(5)

[2] Wage and Hour Opinion Letter, August 19, 1994

[3] Wage and Hour Opinion Letter, April 1, 1994

[4] Fair Labor Standards Act,  29 C.F.R. §553.23(a)(2)

[5] Ibid.

[6] Fair Labor Standards Act, 29 U.S.C. §207(o).

port 99-331, 99th Cong. 2nd Sess 21 1985.

[8] Fair Labor Standards Act,  29 C.F.R. §553.23(a)

[9] Fair Labor Standards Act,  29 C.F.R. §553.23(c)