This information applies to all government agencies--with the exception of the federal government--but including counties, municipalities, municipal corporations, political subdivisions, school districts and state agencies.
The use of compensatory time, more commonly referred to as "comp time" is only available to government employers. Employers in the private sector or non-profit agencies that are not part of a federal, state or local government agency are not permitted to use compensatory time in place of the payment of overtime.
All state and local government agencies are subject to the Fair Labor Standards Act that regulates minimum wage, overtime, recordkeeping and the employment of minors. In addition, these agencies are subject to ORS 653.268 (formerly 279.340); 653.269 and 650.070 which regulate overtime. In 1995, the requirement to pay overtime after eight hours in a day was deleted from existing law. At the same time, the scope of the statute’s coverage was expanded to include all public agencies. Now, the overtime requirement for both state and local government agencies is the same: employees who work more than 40 hours in a workweek must be paid overtime.
Compensatory Time (or "Comp Time") Generally
Q. Are local government agencies allowed to use comp time in lieu of the overtime requirement?
A. Yes, when budgeted funds are not available to pay overtime, government agencies may use compensatory time. It must be computed at one and one-half hours for each hour of overtime worked. ORS 653.268.
Q. Do the federal caps on comp time apply?
A. Yes. Federal law allows a maximum of 240 hours of comp time which represents 160 hours worked. If an employee works any additional overtime after 240 hours have been accrued, the time must be paid. The agency may set lower caps on comp time. 29 CFR 553.21(3)(A).
Q. May the agency set limits on the use of comp time?
A. Employees must be permitted to use comp time within a reasonable period after requesting time off, unless it would unduly disrupt the operations of the agency. 29 CFR 553.25.
Q. May the employer cash comp time out at the rate that was in effect when the time was earned?
A. No. Federal law requires that comp time be cashed out at the rate earned by the employee at the time the employee receives the payment. In cases of termination, comp time must be cashed out at the current rate earned or the average rate earned during the last three years of employment, whichever is higher. 29 CFR 553.27.
Comp Time for Seasonal Workers
Q. Are seasonal employees allowed higher limits on the accrual of comp time?
A. Yes. Workers in seasonal jobs having periods of significantly increased demand of a regular and recurring nature may accrue a maximum of 480 hours of comp time if during those periods they are likely to accrue more than 240 hours based on the employer’s past experience with similar employment situations.
Comp Time for Fire, Police & Emergency Response Personnel
Q. Is there a higher comp time limit available to fire and police protection personnel and to emergency response personnel?
A. Yes, a 480-hour limit is available to these employees as well as to drivers and dispatchers of emergency response vehicles in connection with fire or police protection.
Q. What are the overtime requirements for firefighters?
A. If an agency employs five or more firefighters, the agency may pay them overtime after 53 hours in a week. This only allowed only for employees who are actually engaged in fire protection activities.
Q. Is it true that fire district employers having five or more firefighters may average an employee’s hours worked over a four-week period for the purpose of calculating the overtime?
A. Yes. In averaging of firefighters´ hours worked over a four-week period will comply with state law as well.
Q. May other employees of fire districts be paid in the same way, that is, averaging their hours over a 28-day period?
A. No. Civilian employees who work in dispatching, repair or maintenance, and clerical workers are excluded from this provision and must be paid overtime for hours worked over 40 in a week.
Q. Are there overtime requirements in fire districts employing fewer than five firefighters?
A. Yes. State law requires that any "regularly organized fire department," maintained by a city, municipality or fire district and employs four employees, must pay overtime anytime a firefighter works more than 56 hours in a week. Such fire departments may average the hours worked per week over each quarter of the fiscal year for the purpose of calculating overtime.
Fire departments employing fewer than four firefighters must pay overtime for any week that a firefighter works more than 72 hours. The fire department may average the hours worked per week over each quarter of its fiscal year for the purpose of calculating overtime. ORS 652.060
Q. Is there any requirement to give days off?
A. In Oregon, allfirefighters must be allowed 48 consecutive hours off duty during each seven-day period.
Q. For purposes of overtime payment and keeping time records, how are vacation and sick leave hours handled?
A. State law requires fire district employers to include and count vacation and sick leave hours along with hours actually worked for the purpose of calculating overtime. For example, if a firefighter actually worked 53 hours in a work week and, in addition, was on sick leave for eight hours, the employee must be paid 53 hours at straight time and eight hours must be paid at time and a half.
Fire department employers having four or more firefighters may, if the firefighter agrees, pay straight time wages for hours worked in a week when an employee is replacing another on authorized leave or filling a vacancy temporarily, even though the employee has worked more than 53 hours, provided the employee’s decision to fill the vacancy is freely made.
Comp Time for Law Enforcement
Q. Are police officers subject to the payment of overtime?
A. Yes, federal law requires that in governments employing five or more law enforcement personnel, law enforcement officers and subordinates who have power to arrest mustbe paid one and one half times their regular rates for hours worked over 43 in a week, or 171 in a 28-day period.
Federal regulations are available from the US. Department of Labor, Telephone: (503) 326-3057.
Nothing on this
website is intended as legal advice. Any responses to specific questions
are based on the facts as we understand them, and not intended to apply to any
other situations. This communication is not an agency order. If you
need legal advice, please consult an attorney. We attempt to update the
information on this website as soon as practicable following changes or
developments in the laws and rules affecting Oregon employers, but we make no
warranties or representations, express or implied, about whether the
information provided is current. We urge you to check the applicable
statutes and administrative rules yourself and to consult with legal counsel
prior to taking action that may invoke employee rights or employer responsibilities
or omitting to act when required by law to act.
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