(a) Section 7(o)(5) of the FLSA provides that any employee of a
public agency who has accrued compensatory time and requested use of
this compensatory time, shall be permitted to use such time off within a
``reasonable period'' after making the request, if such use does not
``unduly disrupt'' the operations of the agency. This provision,
however, does not apply to ``other compensatory time'' (as defined below
in Sec. 553.28), including compensatory time accrued for overtime worked
prior to April 15, 1986.
(b) Compensatory time cannot be used as a means to avoid statutory
overtime compensation. An employee has the right to use compensatory
time earned and must not be coerced to accept more compensatory time
than an employer can realistically and in good faith expect to be able
to grant within a reasonable period of his or her making a request for
use of such time.
(c) Reasonable period. (1) Whether a request to use compensatory
time has
been granted within a ``reasonable period'' will be determined by
considering the customary work practices within the agency based on the
facts and circumstances in each case. Such practices include, but are
not limited to (a) the normal schedule of work, (b) anticipated peak
workloads based on past experience, (c) emergency requirements for staff
and services, and (d) the availability of qualified substitute staff.
(2) The use of compensatory time in lieu of cash payment for
overtime must be pursuant to some form of agreement or understanding
between the employer and the employee (or the representative of the
employee) reached prior to the performance of the work. (See
Sec. 553.23.) To the extent that the (conditions under which an employee
can take compensatory time off are contained in an agreement or
understanding as defined in Sec. 553.23, the terms of such agreement or
understanding will govern the meaning of ``reasonable period''.
(d) Unduly disrupt. When an employer receives a request for
compensatory time off, it shall be honored unless to do so would be
``unduly disruptive'' to the agency's operations. Mere inconvenience to
the employer is an insufficient basis for denial of a request for
compensatory time off. (See H. Rep. 99-331, p. 23.) For an agency to
turn down a request from an employee for compensatory time off requires
that it should reasonably and in good faith anticipate that it would
impose an unreasonable burden on the agency's ability to provide
services of acceptable quality and quantity for the public during the
time requested without the use of the employee's services.
[52 FR 2032, Jan. 16, 1987; 52 FR 2648, Jan. 23, 1987]
