TEST YOURSELF- The Correct OT Remedy
Let’s assume that you find management has incorrectly told some employees over the last nine months that they may only be compensated with comp time to work extra hours, not time-and-one-half overtime pay. Then, as soon as you point out to LR that the FLSA-covered employees should have received the extra money, it agrees you are right and offers to settle the dispute. Its offer is to give them the difference between the straight-time salary rate of any comp time they already used and time-and one-half overtime pay. Unused comp time would be compensated at the full overtime rate. Is that a good deal?
A lot more goes into determining whether a settlement offer is a good deal than what the law provides, but when measured just against the law this is not a good deal.
For a long time FLRA held that this was the correct reading of the law where the employee had already used the comp time he/she earned. If his/her hourly straight-time salary rate was $15.00 and the employee took 10 hours of comp time at that rate, he/she was entitled to the difference between $15.00 and time-and-one-half $22.50 for every hour—or $75.00. Check out IFPTE, 57 FLRA 543 (2001) for an example.
However, in 2010 AFGE came away with a much better deal. In AFGE, 65 FLRA 252 (2010) the union convinced the arbitrator and FLRA that the appropriate remedy is the difference between the straight-time salary rate for any comp time taken already and the overtime rate, plus liquidated damages. Loosely stated, liquidated damages require that the employer pay the employee at twice the overtime rate if it violates the employee’s FLSA overtime rights. So, using the example above whose the straight-time rate is $15.00, the union argued that the grievant was entitled to the difference between $15.00 and $45.00 ($22.50 per overtime hour doubled) for every comp time hour used.
Although FLRA agreed that the IFPTE remedy was inadequate, it would not go as far as AFGE asked. It held that the agency was entitled to deduct the $15.00 straight-time figure from the normal $22.50 overtime rate and then only double that resulting figure—or $7.50 x 2 for a payment of $15.00 owed for each comp time hour already used—or $150.00.
If faced with a similar grievance, remember that the remedy for any comp time hours already used is different from those not yet used. Those not yet used are compensated at the normal time-and-one-half overtime rate. Those already used are paid at an adjusted liquidated damages rate. Interest is owed on both those amounts, and if the agency refuses to settle before arbitration the union could get attorney fees that will add substantially to its costs.