In the past, as a municipal, county, or special district employer, you were likely informed that your employees were not allowed to use compensatory time concurrently with leave under the FMLA. This was because, in effect, the compensatory time would extend FMLA leave. The rationale for this advice sprang from an opinion letter issued by the Department of Labor in 2013. Since then, online research shows that the opinion letter has continued to be cited as the authoritative source regarding use of compensatory time in the public sector, and how such use impedes FMLA rights. Unfortunately, these sources are not dealing with the most-current law.
Shortly after the opinion letter was issued, the FMLA regulations changed, specifically to include 29 CFR 825.207(f). Yet the opinion letter was still on the books. Employers Council’s Northern Regional Office Director, Tina Harkness, was recently confronted with the question and did a little digging. She compared the timing of the opinion letter with the release of the regulations and identified that the opinion letter was, in fact, superseded by regulation. The regulation regarding compensatory time is later in time so it makes the opinion letter, insofar as it is on-topic, outdated.
Consequently, if an employee requests and is permitted to use accrued compensatory time to receive pay for time taken off for an FMLA reason, or if the employer requires such use pursuant to the FLSA, the time taken may be counted against the employee’s FMLA leave entitlement.
This is good news for some public sector employers who have been operating under the guidance provided by the 2013 opinion letter. Given the frequency with which the situation is encountered by our staff, Employers Council published this item to provide clarification to its members. For related questions, please contact your assigned staff representative.