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Download NowWhat happened. The comp time arrangement for municipal police in Marlborough
was part of the collective bargaining agreement between the city and International
Brotherhood of Police Officers from 1992 until 2003. In 2001, 41 current and
former Marlborough officers took the city to federal district court, con-tending
that the policy violated FLSA. They argued that the city had prevented them
from using their accrued comp time. The union contract included the provision
that the use of comp time could not create a need for overtime, as well as other
limitations. Very soon, the city acknowledged the violation and moved to negotiate.
A district judge ruled that the employees were entitled to remuneration only
for the comp time hours they had accrued but not used, and possibly, to liquidated
damages. The officers felt they should also be paid for the compensatory hours
they had been able to use, because the policy violated FLSA. So they
appealed to the 1st Circuit, which covers Maine, Massachusetts, New Hampshire,
and Rhode Island.
What the court said. Appellate judges noted that liquidated damages
are available under FLSA when an employer has violated the law. So they upheld
the compensatory damages award of some $13,535 for unused comp time, adding
50 percent of that amount as liquidated damages. To pay the officers again for
comp time they had taken would, they said, provide them with a "windfall"not
the intent of FLSA. Lupien et al. v. City of Marlborough, U.S. Court
of Appeals for the 1st Circuit, No. 04-1188 (10/28/04).
Point to remember: Public, but not private, employers can offer comp
time instead of overtime pay. According to Section 207(o) of FLSA, employees
"shall be permitted ? to use such time within a reasonable period
after making the request if the use of the compensatory time does not unduly
disrupt the operations of the public agency." Since 1994, the Department
of Labor has taken the position that the need to pay overtime to a replacement
employee (to maintain proper staffing levels) does not amount to undue disruption.