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Public Employees Suspended Without Pay Are Entitled to Burn Compensatory Time Off to Support Themselves and Their Families

Posted On: May 15, 2014

A labor association client recently approached us because members were placed on unpaid suspension and were denied the ability to cash out accrued compensatory time off (“CTO”) credits. Our client wondered whether the employer had the authority to deny employees the right to burn CTO to support themselves and their families financially. Obviously the answer to this question may be critical to an employee’s ability to keep his/her family clothed, sheltered, and fed. Thankfully, we believe the answer is clear—an employer has no discretion to deny employees the right to utilize their accrued CTO under such circumstances.

Some public employers provide employees with CTO in lieu of cash compensation for overtime hours worked. Like cash overtime compensation, CTO accrues at a rate of 1.5 hours per hour of overtime worked. It goes without saying that any accrued CTO represents hours already worked by an employee who, consequently, “owns” such compensation. Thus, it stands to reason that the employer should be required to allow the employee to utilize his/her CTO at any time unless subject to some legally-permissible exception.

CTO is made permissible by the federal Fair Labor Standards Act (“FLSA”). The FLSA states that an employee “shall be permitted by the employee's employer to use such time within a reasonable period after making the request “if the use of the compensatory time does not unduly disrupt the operations of the public agency.” (29 USC section 207(o)(5) [emphasis added].)

Interpreting this provision, the United States Supreme Court concluded that it “is more properly read as a minimal guarantee that an employee will be able to make some use of compensatory time when he requests to use it. As such, the proper [necessary] inference is than an employer may not, at least in the absence of an agreement, deny an employee’s request to use compensatory time for a reason other than that provided in § 207(o)(5).” Christensen v. Harris County, 529 U.S. 576, 583 (2000).

Thus, an employer must permit an employee to burn CTO upon request unless doing so would “unduly disrupt the operations of the public agency.” And no employer can reasonably claim that allowing the use of CTO would disrupt its operations when the requesting employee is already out on employer-mandated leave.

Based on the foregoing analysis, we were able to ensure that the suspended members were able to utilize their accrued CTO.

If you have any questions, please contact Jonathan Yank at jonathan@majlabor.com.

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