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Can Comp Time Replace Overtime?

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Miami, FL: "Today's employers believe that they can give comp time—one hour time off for every hour worked passed 40 hours—but I know that is an overtime violation," says Martin.

Martin (not his real name) is correct: although comp time is legal in the public sector, it is generally illegal in the private sector. In 1978 Congress passed the Federal Employees Flexible and Compressed Work Schedules Act, which enabled the federal government to pay its employees comp time instead of overtime pay. Then, in 1985, this provision was also extended to state and local employees at the employee's option. But comp time must be paid in the same increment as overtime wages would have been, at time-and-a-half per hour. FLSA, however, continues to require overtime compensation in dollars for private sector hourly workers.

Can Comp Time Replace Overtime?Still, some employers continue to offer non-exempt workers time off in lieu of overtime pay. For instance, a company may offer comp time during a busy period, which the employee can take after the work has slowed down. But the employee usually misses out the time and a half wages he or she should have received instead of comp time.

Martin's employer, a property owner company, is in violation of the overtime law. They even tried to get around overtime compensation by classifying him as exempt, claiming that he was salaried and therefore not entitled to overtime. But Martin knows his rights.

"I was hired in February as a maintenance technician and within 45 days I was promoted to supervisor," says Martin. "My manager gave me a $2 per hour raise, which bumped my hourly to $14, but the property manager told me that this amount was considered salary and any overtime was considered comp time.

"Before I got this raise I worked from 6 to 10 hours overtime every week. My co-workers and I were told that for every hour worked, we would get an hour off. A lot of companies offer comp—I think it's a toss-up whether this practice is legal or not. And a lot of this goes on in the property management business; these owners think they have figured out a loophole and they are exploiting it.

"And they were never going to give me comp time because they made me supervisor.

"They also had me doing nighttime security—courtesy officer work. They were supposed to give me free rent or more pay for this extra job. I locked the pools at 10 pm every --night, so even if I left the property and go home (a 40-minute drive) I would have to come back and lock the pools. The previous manager said she would be happy to speak on my behalf and residents on the property are willing to sign affidavits stating that I was there until 11 pm almost every day, except for some Sundays.

"The manager said the owner wanted me fired because I had an argument with a vendor and a resident complained about me, but I believe I was fired because I was complaining about my comp time.

"I knew this was coming—that I was getting fired. My manager offered me one week's severance pay if I turned in my resignation. They owe me over 200 hours of overtime and they want to give me $600 before taxes! I filed for unemployment. I know I will get it but it doesn't make up for the money they owe me.

"These property owners in Florida abuse maintenance staff. We have to make sure everything is operational before someone moves into a property and we are compensated very poorly for this job. Up until a few years ago, we would get free rent or 50 percent off the rent to move onto the property. Now they offer 20 percent. Fortunately, most of the big corporations pay overtime, but many, like the one I worked for, don't even give comp time. I think all Floridians and workers nationwide that are subjected to employer overtime abuse should have a voice."

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