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Bryan E. Kuhn
Counselor at Law, P.C.
Business & Employment Law Attorney

Is Comp Time in Place of Overtime Pay Acceptable for Private Employees Who Have Worked Overtime?

In lieu of actual overtime pay, employers often attempt to compensate employees for overtime hours worked with something called compensatory time. This practice, while common, isn’t legally acceptable. This article looks at this practice, and at employees’ rights in this area.

If you hold private employment in the state of Colorado, the FLSA (Fair Labor Standards Act) and the COMPS Order (Colorado Overtime and Minimum Pay Standards Order) offer protections: if you work more than 40 hours in any week or more than 12 hours on any given day, your employer must pay you an additional overtime hourly rate that is 150% of what you make during regular hours. If your employer neglects to pay you at this increased rate, they may be liable, under the law, to compensate you for the wages that you’ve been denied. If the nonpayment is found to have been willful, your employer may owe you liquidated damages on top, as well – twice the back pay owed. You can even recover anything that it cost you to file a claim in court. Your window of opportunity, when it comes to suing for compensation in an FLSA case, is between two and three years.

Compensatory time

In some cases, employers try to compensate their employees for overtime hours put in, in other ways: namely, with comp time. An employer who uses this practice avoids paying overtime wages, and may offer paid time off, instead. For example, if an employee works an additional 16 hours in a given week over the regular 40 hours, they would have worked the equivalent of two extra workdays. The employer, rather than pay them the increased overtime pay rate, would give them two days off, and pay them at the regular rate, as if they had come in to work on those days. Comp time is a common practice with employers in Colorado.

Comp time isn’t a legally valid alternative

As common as comp time may be among employers, the practice isn’t legally valid. Granting time off in lieu of actual additional pay violates both the FLSA and the COMPS Order. According to the website of the Colorado Department of Labor and Employment, offering paid time off in place of actual overtime pay is not allowed.

These rules only apply to private employers. Government agencies are exempt. They are able to legally apply comp time to compensate employees who work overtime hours. Some private-sector employers tend to be confused by the exemption that public employers receive; they tend to find it hard to believe that the law could treat public employers differently from private employers. The fact is, however, that the rule only applies to non-governmental employers.

The law doesn’t allow comp time even in cases in which employees express a preference for it. If an employee agrees to comp time, they are still able to sue their employer for denying them overtime pay in actual money. The rule against comp time is set out by Federal and Colorado law, and cannot be set aside by private agreement, even in situations in which there are written statements by an employee to that effect.

If your employer has compensated you with comp time at some point, and you don’t believe that the arrangement is fair, getting in touch with a Colorado employment lawyer would be a good idea. Your lawyer could help you understand your options.

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