Posted by Tamara
Jane recently worked 10 hours of overtime and asked her employer for comp time to extend her vacation instead of paying overtime. The employer said comp time was illegal. Is Jane’s employer right?
If the Colorado employer is a private business, and Jane is an hourly employee, then the employer is correct. Comp time for private companies is illegal.
Comp time, the shortened term for compensatory time, is paid time off granted to an employee to use during a future payroll period, instead of being paid overtime. It’s a legal alternative for some state and federal government employees, but not for workers at private companies.
The relevant law is the federal Fair Labor Standards Act (FLSA). Under this law, employees of private businesses must be paid overtime when they work more than 40 hours a week. Overtime is calculated at 1.5 times the employee’s usual hourly rate.
Some Colorado businesses will grant time off in the same week. For example, Heather normally works from 6 a.m. to 2 p.m. Monday through Friday. On Tuesday, she works until 4pm, or two extra hours, to complete a project. Her employer insists Heather leave work two hours early on Wednesday to compensate. This a common method to control overtime expenses, but it is not comp time. Heather has worked only 40 hours in that payroll week, and is not entitled to overtime pay.
Harry, however, is a city employee and works 45 hours in one payroll week. He is entitled to 40 hours of regular pay and 5 hours of overtime at 1.5 times his usual hourly rate. Instead of overtime pay, his employer grants Harry comp time at a mutually convenient time in the future. This is legal comp time.
Understand that comp time is “paid” at the same rate as overtime pay. For every hour Harry worked of overtime, he is entitled to 1.5 hours of comp time. When Harry took the time off, he worked 32.5 hours, but was paid for 40 hours–the time worked plus 7.5 hours of comp time.
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