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STATE OF DELAWARE
COMPENSATORY TIME POLICY
December 16th, 2003- Revised November, 2007
Purpose
The purpose of this policy is to establish consistency across state agencies on compensatory time usage and payment and to ensure conformity with the federal Fair Labor Standards Act (FLSA).
Eligibility
All state employees are subject to this policy except for collective bargaining employees who have negotiated compensatory time in their respective bargaining agreements, school district employees and higher education employees. Each agency shall designate at least one individual in their organization who will determine whether overtime is compensated via cash or compensatory time.
Definitions
- FLSA Covered Positions: Positions that are covered by the Fair Labor Standards Act (also known as FLSA non-exempt). Employees may contact their human resource professional to determine if their position is covered by the FLSA. Human resource professionals can verify this status through the alpha listing within the PHRST system. Employees in positions not covered by the FLSA are referred to as FLSA exempt.
- FLSA Compensatory Time: Compensatory time worked beyond 40 hours in a standard workweek. FLSA non-exempt positions accrue overtime at time and a half (1.5). (Note that FLSA non-exempt positions are not eligible for alternative work schedules that exceed 40 hours in a given week.) FLSA exempt positions (unless otherwise described in this policy) may accrue similar compensatory time at a straight time rate.
- State or Merit Compensatory Time: The amount of compensatory time earned between 37.5 and 40.0 hours in a standard workweek. (Note that this may not apply if on an approved alternative work schedule or those on a 40-hour pay plan). FLSA covered or non-exempt positions accrue time at time and a half (1.5 hours) while non-FLSA covered or exempt positions (unless otherwise described in this policy) receive straight time (one hour for one hour). Merit compensatory time expires after 180 days, and is lost if not utilized within that time period. State or Merit compensatory time must be taken before the employee takes FLSA Compensatory Time. (Note that employee on the PHRST Time & Labor module are permitted to deviate from the 180 day rule.
- Casual/seasonal employees are not Merit employees and are not, therefore, eligible for compensatory time. They are paid on an hourly basis. If the casual/seasonal employee is in an FLSA non-exempt equivalent position, then they will be paid at time and a half after working 40 hours per week unless FLSA law provides for an exception (such as parks' seasonals').
Policy Considerations
- The basis for this policy shall be found in the Merit Rules.
- Employees who request to attend conferences, seminars or other training during weekends or after their regularly scheduled day are not entitled to compensatory time unless in a position covered by the FLSA. Employees may flex their work time around the event with the approval of their supervisor. If management requires the conferences, seminars or other training, then an employee may be entitled to compensatory time. Employees in an FLSA non-exempt position must be compensated if required to attend conferences, seminars or other training during times when they would not normally be required to work. The hours the employee would be compensated in this latter case would exclude the time that the individual would normally travel to his/her job site.
- Each cabinet secretary/agency head (or his/her designee) is responsible for administering this compensatory time policy.
- All overtime services performed beyond the standard workweek must be approved in advance whenever possible. Compensation, either in the form of cash payment or compensatory time, must be determined in advance between the employee and the designated authority within the agency. Supervisors should authorize overtime only when in the best interest of the State of Delaware. Overtime should not be authorized for any assignment, which could have been completed during regular working hours. In accordance with Merit Rule 4.13.1, the method of compensation for overtime is subject to the availability of funds and/or the operational needs of the agency. In emergencies, if prior approval is not obtained, then both the supervisor and the supervisor's supervisor must provide authorization for compensation. If the supervisor is a Division Director or higher, then only that individual's approval is required. However, supervisors who knowingly accept work accomplished by FLSA non-exempt employees on overtime, or who should have known that such work was accomplished on overtime, must document the employee's compensation for such FLSA overtime. A FLSA non-exempt employee who chooses to perform overtime services that are not authorized or required, in advance, by someone within his/her chain of command may be subject to disciplinary/corrective action.
- FLSA exempt employees may be paid only for overtime if approved by the Director of Human Resource Management per Merit Rule 4.13.6. FLSA exempt employees may be compensated at the 1.5 times rate only per Merit Rule 4.13.8. Compensatory time earned in these instances shall be Merit System Compensatory Time.
- FLSA exempt employees in pay grades 15 through 19 will not receive compensatory time for overtime worked less than thirty minutes per day. FLSA exempt employees shall not be compensated for carrying a pager or for being on-call unless covered under a separate merit rule.
- Employees in positions with a pay grade of 20 or higher (or the merit equivalent) may accrue compensation time similar to pay grades 15 and above. However, such time will be forfeited if the individual leaves that specific position.
- Management should encourage flex time (within the 7 day period earned) to reduce compensation for overtime service and should be judicious in granting the use of annual leave and compensatory time use so as to minimize the eligibility for compensation for overtime service. However, management should not require that time be flexed in lieu of use of scheduled sick leave, if used appropriately, regardless of how such use affects compensation for overtime service.
- Unless otherwise specified in the Fair Labor Standards Act for certain positions such as public safety positions, the maximum accrual for FLSA compensatory time shall not exceed 240 hours (160 hours times 1.5). Once the maximum has been reached, then the employee must either be compensated in cash or given time off. However, in accordance with Federal law, management may require employees to utilize their FLSA compensatory time at any time.
- Accrued merit compensatory time may not be transferred to or from, another department or division unless the receiving entity agrees in writing to the transfer, in advance, and the transferring entity certifies in writing the amount of compensatory time being transferred. All FLSA compensatory time will be paid by the losing agency prior to transfer.
- Merit compensatory time may not be cashed out except in unique circumstances and with the approval of Director of Human Resource Management. However FLSA compensatory time may be cashed out during employment and must be cashed out at termination of employment.
- An employee may not earn compensatory time while on paid leave (annual leave, sick leave, compensatory time, etc.).
- Accumulated compensatory time should be used as soon as possible after accrual provided such usage does not disrupt the operations of the agency. The approval process for the use of compensatory time should be similar to the approval process for annual leave. Approval for the usage of compensatory time should not be unreasonably withheld.
- Compensatory time may never be taken before it is earned.
- Supervisors shall be held accountable for ensuring that an official record is maintained of all time earned and used, including overtime and compensatory time. Employees are responsible for knowing their own compensatory accrual, compensatory time expiration and usage thereof.
- For record keeping purposes, compensatory time (unless otherwise specified in this policy) shall be accrued and taken in quarter hour intervals. Less than seven minutes into the quarter is not counted, but seven minutes or more is rounded up to the next quarter hour.
- An employee shall not be approved to work overtime that would exceed a balance of 100 hours without the approval of the cabinet secretary/agency head (or his/her designee).
- FLSA non-exempt employees on a 14-day schedule, also receive time and a half for working over 8 hours in any given day even though they may not exceed 80 hours during the fourteen-day period.
- FLSA non-exempt employees are not normally required to carry pagers or to be on-call. It is anticipated that there will be several exceptional circumstances that should be directed to the agency's human resource office. FLSA non-exempt employees who are required to return to the work site are eligible for call back pay per the merit rules.
- As long as all other applicable laws, rules and regulations are not violated, agencies may make more restrictive compensatory time policies in order to meet operational needs, but cannot make less restrictive policies.
This policy is not intended to create any individual right or cause of action
not already existing and recognized under state or federal law.
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