(a) General. (1) As a condition for use of compensatory time in lieu
of overtime payment in cash, section 7(o)(2)(A) of the Act requires an
agreement or understanding reached prior to the performance of work.
This can be accomplished pursuant to a collective bargaining agreement,
a memorandum of understanding or any other agreement between the public
agency and representatives of the employees. If the employees do not
have a representative, compensatory time may be used in lieu of cash
overtime compensation only if such an agreement or understanding has
been arrived at between the public agency and the individual employee
before the performance of work. No agreement or understanding is
required with respect to employees hired prior to April 15, 1986, who do
not have a representative, if the employer had a regular practice in
effect on April 15, 1986, of granting compensatory time off in lieu of
overtime pay.
(2) Agreements or understandings may provide that compensatory time
off in lieu of overtime payment in cash may be restricted to certain
hours of work only. In addition, agreements or understandings may
provide for any combination of compensatory time off and overtime
payment in cash (e.g., one hour compensatory time credit plus one-half
the employee's regular hourly rate of pay in cash for each hour of
overtime worked) so long as the premium pay principle of at least ``time
and one-half'' is maintained. The agreement or understanding may include
other provisions governing the preservation, use, or cashing out of
compensatory time so long as these provisions are consistent with
section 7(o) of the Act. To the extent that any provision of an
agreement or understanding is in violation of section 7(o) of the Act,
the provision is superseded by the requirements of section 7(o).
(b) Agreement or understanding between the public agency and a
representative of the employees. (1) Where employees have a
representative, the agreement or understanding concerning the use of
compensatory time must be between the representative and the public
agency either through a collective bargaining agreement or through a
memorandum of understanding or other type of oral or written agreement.
In the absence of a collective bargaining agreement applicable to the
employees, the representative need not be a formal or recognized
bargaining agent as long as the representative is designated by the
employees. Any agreement must be consistent with the provisions of
section 7(o) of the Act.
(2) Section 2(b) of the 1985 Amendments provides that a collective
bargaining agreement in effect on April 15, 1986, which permits
compensatory time off in lieu of overtime compensation, will remain in
effect until the expiration date of the collective bargaining agreement
unless otherwise modified. However, the terms and conditions of such
agreement under which compensatory time off is provided after April 14,
1986, must not violate the requirements of section 7(o) of the Act and
these regulations.
(c) Agreement or understanding between the public agency and
individual employees. (1) Where employees of a public agency do not have
a recognized or otherwise designated representative, the agreement or
understanding concerning compensatory time off must be between the
public agency and the individual employee and must be reached prior to
the performance of work. This agreement or understanding with individual
employees need not be in writing, but a record of its existence must be
kept. (See Sec. 553.50.) An employer need not adopt the same agreement
or understanding with different employees and need not provide
compensatory time to all employees. The agreement or understanding to
provide compensatory time off in lieu of cash overtime compensation may
take the form of an express condition of employment, provided (i) the
employee knowingly and voluntarily agrees to it as a condition of
employment and (ii) the employee is informed that the compensatory time
received may be preserved, used or cashed out consistent with the
provisions of section 7(o) of the Act. An agreement or understanding may
be evidenced by a notice to the employee that compensatory time off will
be given in lieu of overtime pay. In such a case, an agreement or
understanding
would be presumed to exist for purposes of section 7(o) with respect to
any employee who fails to express to the employer an unwillingness to
accept compensatory time off in lieu of overtime pay. However, the
employee's decision to accept compensatory time off in lieu of cash
overtime payments must be made freely and without coercion or pressure.
(2) Section 2(a) of the 1985 Amendments provides that in the case of
employees who have no representative and were employed prior to April
15, 1986, a public agency that has had a regular practice of awarding
compensatory time off in lieu of overtime pay is deemed to have reached
an agreement or understanding with these employees as of April 15, 1986.
A public agency need not secure an agreement or understanding with each
employee employed prior to that date. If, however, such a regular
practice does not conform to the provisions of section 7(o) of the Act,
it must be modified to do so with regard to practices after April 14,
1986. With respect to employees hired after April 14, 1986, the public
employer who elects to use compensatory time must follow the guidelines
on agreements discussed in paragraph (c)(1) of this section.
[52 FR 2032, Jan. 16, 1987; 52 FR 2648, Jan. 23, 1987]
