7(o)(5) of the FLSA provides that any employee of a public agency who
has accrued compensatory time and requested use of this compensatory
time, shall be permitted to use such time off within a ``reasonable
period'' after making the request, if such use does not ``unduly
disrupt'' the operations of the agency. This provision, however, does
not apply to ``other compensatory time'' (as defined below in Sec.
553.28), including compensatory time accrued for overtime worked prior
to April 15, 1986.
Compensatory time cannot be used as a means to avoid statutory overtime
compensation. An employee has the right to use compensatory time earned
and must not be coerced to accept more compensatory time than an
employer can realistically and in good faith expect to be able to grant
within a reasonable period of his or her making a request for use of
period. (1) Whether a request to use compensatory time has been granted
within a ``reasonable period'' will be determined by considering the
customary work practices within the agency based on the facts and
circumstances in each case. Such practices include, but are not limited
to (a) the normal schedule of work, (b) anticipated peak workloads based
on past experience, (c) emergency requirements for staff and services,
and (d) the availability of qualified substitute staff.
(2) The use of
compensatory time in lieu of cash payment for overtime must be pursuant
to some form of agreement or understanding between the employer and the
employee (or the representative of the employee) reached prior to the
performance of the work. (See Sec. 553.23.) To the extent that the
(conditions under which an employee can take compensatory time off are
contained in an agreement or understanding as defined in Sec. 553.23,
the terms of such agreement or understanding will govern the meaning of
disrupt. When an employer receives a request for compensatory time off,
it shall be honored unless to do so would be ``unduly disruptive'' to
the agency's operations. Mere inconvenience to the employer is an
insufficient basis for denial of a request for compensatory time off.
(See H. Rep. 99-331, p. 23.) For an agency to turn down a request from
an employee for compensatory time off requires that it should reasonably
and in good faith anticipate that it would impose an unreasonable burden
on the agency's ability to provide services of acceptable quality and
quantity for the public during the time requested without the use of the
[52 FR 2032, Jan.
16, 1987; 52 FR 2648, Jan. 23, 1987]