If a non-exempt employee works over 40 hours in a work week, can an employer compensate with only comp. time and not pay the employee for hours worked?

Statement from HR concerning overtime hours see below

You may be aware that recently the Department of Labor issued new rules on overtime eligibility for employees that increases the salary threshold under which workers are entitled to overtime compensation. In our case, overtime is typically handled by granting compensatory time instead of actual overtime compensation. This will not change as a result of the new rules. This basically means that certain exempt positions staff only will be changed to non-exempt positions. These new rules go into effect on December 1, 2016.

Asked on June 30, 2016 under Employment Labor Law, South Carolina


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

As a general rule, under federal/state law, an employer cannot offer comp or flex time instead of overtime. If the employee is eligible for overtime (i.e. they are "non-exempt"), their employer must pay overtime whenever the employee works more than 40 hours per work week. That having been said, an employer can offer comp time over and above overtime, to incentivize the employee to go beyond the "call of duty" as it were. The exceptions would be if the above does not violate the terms of an employment contract or union/collective bargaining agreement.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

There are certain unionized jobs where comp time, rather than overtime, can be provided for working more than 40 hours in a week, if that provision is in the union or collective bargaining contract. But if you are not in a union job, subject to a collective bargaining contract with such a provision, as a non-exempt employee, you must be paid overtime (NOT comp time) for all hours worked beyond 40 hours in a week. (Your employer is free to give you comp time in *addition* to overtime for a job well done if it likes.)

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