Number 80, July-August 2003:
USERRA And The FLSA

By CAPT Samuel F. Wright, JAGC, USNR*

Q: I have read with interest your "Law Review" articles about the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301-4333. I was especially interested in Law Review 26 (June 2001), "Use of Vacation for Military Service," and Law Review 59 (December 2002), "Vacation Benefits under USERRA."

I am a second lieutenant in the Army Reserve. I was recently assigned to a civil affairs unit that has been called to active duty five times in the last 13 years, and we may well be called to active duty again. As you have advised in your articles, I am trying to prepare for the possibility of mobilization.

My civilian pay is substantially greater than my active-duty pay, and I am trying to cushion the shock of mobilization, if and when it happens. I almost never take any vacation at work because I am trying to maximize my vacation in the bank. If mobilized, I would use up my vacation during the first two weeks or so of my active-duty period. That would help some.

At my civilian job, work is very cyclical. In some weeks, there is not enough work to keep us busy for a 40-hour workweek. In other weeks, there is more than we can possibly do in 40 hours, and the employer pays us overtime (150 percent of our regular hourly wage) for the hours worked in addition to 40 per week.

I went to the boss and told him that I would prefer to build up compensatory time ("comp time"), in lieu of being paid the overtime rate. My idea is that I want to build up two weeks of comp time, plus two weeks of unused vacation, so that if mobilized I could get double pay (Army pay plus civilian pay) for the first month or so on active duty. That would amount to a considerable cushion on the shock of mobilization.

The boss told me that he would like to agree to my request, but that making such an arrangement would violate federal law. Is the boss correct?

A: Unfortunately, yes, under the Fair Labor Standards Act (FLSA). That law provides: "Except as provided in this section, no employer shall employ any of his employees … for a workweek longer than 40 hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." [29 U.S.C. 207(a)(1).] In the private sector, the employer and the employee are not permitted to agree to an alternative arrangement, in lieu of the payment of overtime. (The FLSA provides considerably more flexibility in the government sector.)

Rep. Judy Biggert (R-Ill.), with many co-sponsors, has introduced H.R. 1119, the proposed "Family Time Flexibility Act" (FTFA). If enacted, the FTFA would enact a new subsection "r" in 29 U.S.C. 207. That new subsection would allow the employer and the employee to agree on comp time (at the 150 percent rate) in lieu of the payment of overtime. Although the FTFA has been discussed primarily in connection with giving employees flexibility to deal with family responsibilities, this legislation would also be most useful to Reservists and National Guard members, especially those in your situation.

Q: Under the proposed FTFA, how quickly would I accrue comp time, and at what rate would I be paid while utilizing comp time?

A: If you choose, you could accrue comp time instead of overtime. The proposed FTFA contains safeguards to ensure that the choice is entirely voluntary, and not a condition of employment. If you make this choice, you would accrue comp time at the 150 percent rate. For example, if you work eight hours of overtime, you would accrue 12 hours of comp time. [29 U.S.C. 207(r)(1)(A), proposed.] While expending your comp time, you would be paid hour-for-hour at your full regular rate. If your pay rate increased after you earn the comp time but before you expend it, you will be paid at the new, higher rate. If your rate of pay has decreased, you will be paid at the old, higher rate. [29 U.S.C. 207(r)(6)(A), proposed.]

Q: What if I get called up at a time that my employer finds to be particularly burdensome and inconvenient? Is the employer permitted to veto my use of comp time?

A: Under the proposed FTFA, the employee who has accrued comp time and has requested to use it "shall be permitted by the person’s employer to use such [comp] time within a reasonable period after making the request if the use of compensatory time does not unduly disrupt the operations of the employer." [29 U.S.C. 207(r)(7)(B), proposed.] Moreover, one should read the proposed FTFA with USERRA, and specifically 38 U.S.C. 4316(d), which generally allows you to use accrued vacation or similar leave (including comp time) during a period of uniformed service. As is explained in Law Review 30, the employer has no right to veto the timing, frequency, or duration of your uniformed service. Given the protections of USERRA and FTFA’s narrowly construed "unduly disrupt" standard, it is highly unlikely that your employer would be permitted to veto your use of comp time during your uniformed service.

Q: Under the proposed FTFA, how much comp time would I be permitted to accrue?

A: "An employee may accrue not more than 160 hours of compensatory time." [29 U.S.C. 207(r)(3)(A), proposed.]

Q: What if I accrue 160 hours of comp time and then I don’t get called to active duty?

A: In that case, you could use the comp time for some other purpose, or you could be paid for your overtime at the 150 percent rate, at your option. [29 U.S.C. 207(r)(3)(B), proposed.] ROA