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View Full Version : Comp time for "state" agency employees Vermont


feliciajjjj
08-03-2006, 09:51 PM
I am trying to figure out if the organization I work for is properly using comp time and non-exempt/exempt designations. We are a non-profit, but by statute considered an "intrumentality of the state," part of which, means that we are, by law, to be treated the same as state employees (same retirement plan, same insurance, same COL raises, etc.).

My position is salaried and non-exempt. I am a director of a department and manage staff. The only reason I mention that is that in trying to understand FLSA laws I got the impression that even though most of us are technically considered non-exempt, maybe we are actually exempt because of the virtue of our job responsibilites and therefore the comp time given to us is a gift not a requirement?

If that is not the case, then it seems that as non-exempt "state" employees, we are not subject to overtime requirements by state law (see here): http://www.labor.vermont.gov/Workers/Employed/CanmyEmployerdoThat/tabid/253/Default.aspx

What I have read about FLSA stuff on DOL says:"Under certain prescribed conditions, employees of State or local government agencies may receive compensatory time off at a rate of not less than one and one-half hours for each overtime hour worked, instead of cash overtime pay, 240 hours."

So, our office currently awards comp time on an hour by hour basis (not one and one-half hours time). Are we in trouble here? If we have been doing it wrong, how do we back track to fix it?

They don't seem to cap the amount of comp time we can earn, nor is there much oversight or management about who takes it when. We do lose it if we haven't used it within a calendar year. Given the nature of professionals working in an understaffed non-profit, many of us have a ridiculous amount of comp time accrued.

last question is: I have often been told that you cannot be compensated for comp time if you leave?

Thanks for helping me understand this better--as an employee and a manager, I need to get a better handle on this.

Pattymd
08-04-2006, 05:31 AM
The idea of "nonexempt" is often used in the context of exempt employees in government because of the fact that the prohibition against docking an exempt employee's salary for partial day absences is permitted under the Accountability in Government Act.

As a department manager, and based on what you've told us, it is likely you actually are an exempt employee. If you can provide more details of your responsibilities, it would help.

So, assuming that you are actually "exempt", they don't have to offer comp time at all and granting it on an hour-for-hour basis is more than the law requires.

The quote from the FLSA that you cited refers to nonexempt employees, not exempt. However, comp time for nonexempt employees must be 1)opted for by the employee (it cannot be forced upon the employee in lieu of paying overtime and, as such; 2)it must be accrued at 1.5 time and; 3)it must be paid out at termination.

I manage the payroll function for a large city in Maryland. If you'd like detailed info about our plan, please feel free to PM me.

feliciajjjj
08-04-2006, 06:54 AM
THanks for your prompt reply. Our org is in the cultural /arts category and my job is overseeing and coordinating education and public programming. I am also involved in strategic planning and in representing the org on a statewide basis. My job requires a masters degree, which I have.

Thanks for any insight. My next question would be to determine if the folks I supervise are exempt- The full time positions are professional- requiring a mix of "intellectual" desk work and the hands-on programming with students and adults.

Appreciate the help thus far!

Pattymd
08-04-2006, 08:19 AM
I'd say you were exempt. Check the criteria for Administrative and Professional exemptions here:
http://www.dol.gov/esa/regs/compliance/whd/fairpay/fs17c_administrative.htm
http://www.dol.gov/esa/regs/compliance/whd/fairpay/fs17d_professional.htm

feliciajjjj
08-04-2006, 09:29 AM
This is very helpful. According to those definitions of administrative and professional, many of our emplyees are probably "exempt." I was mistaken earlier when I called myself a non-exempt employee. It looks like the state categorizes employees either as exempt or "classified". I and most of the staff is technically "classified." So it seems that we might be exempt and the comp time we receive is extra.

If that is the case, the following statement concerned me (from: http://www.entrepreneur.com/article/0,4621,307450,00.html):
"Employers and employees should also keep in mind, though, that if an employee is not covered by the act or is exempt from its overtime provisions, a comp time agreement would be permissible, as long as it does not affect the salary basis of the employee's compensation. Be aware that such agreements can be risky, as some courts have questioned whether a salaried employee who is also paid comp time is really an exempt employee. Therefore, if an employer and a salaried exempt employee decide that they want to enter into an agreement for comp time, counsel should be consulted to ensure compliance with the act."

Do you agree with this statement?

thanks for your help.

Pattymd
08-04-2006, 10:02 AM
Generally speaking, I do agree. However, as I have come to find out after 28 years in payroll and compensation in private industry, government is a whole 'nother ball-of-wax. The difference is that courts generally don't worry about comp time earned hour-for-hour for exempt employees of government specifically because of the fact that such employees may be docked pay for a partial day's absence when (except for intermittent FMLA absences) exempt employees of private employers cannot.

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