You work 50 hours one week, and instead of overtime pay your employer offers you a few hours off next week. It sounds fair, and a lot of employers do it. For most private-sector workers it is against the law.
Can a private employer give me comp time instead of paying overtime?
No. Compensatory time off in place of cash overtime is allowed only for state and local government employers, under 29 U.S.C. ยง 207(o), and even then only at a rate of an hour and a half off for every overtime hour, under a prior agreement. A private employer has to pay overtime in cash for every hour over 40 in a workweek. Time off instead does not satisfy federal law, and it does not matter whether you agreed to it. Overtime rights cannot be waived.
My boss lets me take time off later instead of paying overtime. Is that legal?
For a private employer, usually not. The problem is banking overtime from one week to pay it off in another. Under federal law each workweek stands on its own, and overtime you earn in a week has to be paid for that week. Your employer cannot carry this week's extra hours and give you time off two weeks later instead of the overtime you already earned. It is worse when the swap is offered hour for hour, because overtime is owed at one and a half times your rate, not straight across.
Can my employer send me home early to avoid overtime?
Yes, but only within the same workweek, and this is the piece people mistake for comp time. Overtime is measured by the workweek, so an employer can move your hours around inside one week. If you work ten hours Monday, the employer can send you home early later that same week so the week totals 40, and no overtime is owed. That is lawful scheduling. What the employer cannot do is reach across weeks and repay a long week now with a short week later. The workweek is the unit, and it does not carry over.
What can I recover if I was given comp time instead of overtime pay?
You can recover the overtime premium your employer should have paid you in cash, for every week you worked more than 40 hours and got time off, or nothing, instead. Federal law adds liquidated damages equal to that back pay in most cases, which usually doubles it. The lookback is two years, or three for a willful violation, and the employer pays your attorney's fees on top of your recovery.
What to do next
If your employer has been settling your overtime with time off, keep your schedules and pay records, and write down the weeks you went over 40. Then call me at (512) 799-2048 or contact me online for a free consultation. Contingency fee, no upfront costs, and if there is no recovery you pay nothing.