(a) Section
7(p)(3) of the FLSA provides that two individuals employed in any
occupation by the same public agency may agree, solely at their option
and with the approval of the public agency, to substitute for one
another during scheduled work hours in performance of work in the same
capacity. The hours worked shall be excluded by the employer in the
calculation of the hours for which the substituting employee would
otherwise be entitled to overtime compensation under the Act. Where one
employee substitutes for another, each employee will be credited as if
he or she had worked his or her normal work schedule for that shift.
(b) The
provisions of section 7(p)(3) apply only if employees' decisions to
substitute for one another are made freely and without coercion, direct
or implied. An employer may suggest that an employee substitute or
``trade time'' with another employee working in the same capacity during
regularly scheduled hours, but each employee must be free to refuse to
perform such work without sanction and without being required to explain
or justify the decision. An employee's decision to substitute will be
considered to have been made at his/her sole option when it has been
made (i) without fear of reprisal or promise of reward by the employer,
and (ii) exclusively for the employee's own convenience.
(c) A public
agency which employs individuals who substitute or ``trade time'' under
this subsection is not required to keep a record of the hours of the
substitute work.
(d) In order
to qualify under section 7(p)(3), an agreement between individuals
employed by a public agency to substitute for one another at their own
option must be approved by the agency. This requires that the agency be
aware of the arrangement prior to the work being done, i.e., the
employer must know what work is being done, by whom it is being done,
and where and when it is being done. Approval is manifest when the
employer is aware of the substitution and indicates approval in whatever
manner is customary.
