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<br />~553.11(a)
<br />
<br />and officials In pOllcymaklng positions
<br />who are selected or appointed by the
<br />elected public officials and certain ad-
<br />visers to such officials.
<br />(b) The statutory term "member of
<br />personal staff" generally Includes only
<br />persons who are under the direct su-
<br />pervision of the selecting elected offi-
<br />cial and have regular contact with
<br />such official. The term typically does
<br />not Include Individuals who are direct-
<br />ly supervised by someone other than
<br />the elected official even though they
<br />may have been selected by the official.
<br />For example, the term might Include
<br />the elected official's personal secre-
<br />tary, but would not Include the secre-
<br />tary to an assistant,
<br />(c) In order to Qualify as personal
<br />staff members or officials In policy-
<br />making positions, the Individuals In
<br />Question must not be subject to the
<br />civil service laws of their employing
<br />agencies. The term "civil service laws"
<br />refers to a personnel system estab-
<br />lished by law which Is designed to pro.
<br />tect employees from arbitrary action,
<br />personal favoritism, and political coer-
<br />cion, and which uses a competitive or
<br />merit examination process for selec-
<br />tion and placement. Continued tenure
<br />of employment of employees under
<br />civil service, except for cause, Is pro-
<br />vided. In addition, such personal staff
<br />members must be appOinted by, and
<br />serve solely at the pleasure or discre-
<br />tion of, the elected official.
<br />(d) The exclusion for "Immediate ad-
<br />viser" to elected officials Is limited to
<br />staff who serve as advisers on constitu.
<br />tional or legal matters, and who are
<br />not subject to the civil service rules of
<br />their employing agency.
<br />
<br />!l 553.12 Exclusion for employees of legis.
<br />lative hranches.
<br />
<br />(a) Section 3(e)(2)(C) of the Act pro-
<br />vides an exclusion from the definition
<br />of the term "employee" for Individuals
<br />who are not subject to the civil service
<br />laws of their employing agencies and
<br />are employed by legislative branches
<br />or bodies of States, their political sub.
<br />divisions or interstate governmental
<br />agencies.
<br />(b) Employees of State or local legis.
<br />latlve libraries do not come within this
<br />statutory exclusion. Also, employees
<br />of school boards, other than elected
<br />officials and their appointees (as dis-
<br />cussed in 1553.11), do not come within
<br />this exclusion.
<br />
<br />SECTION 7(0)-COMPENSATORY TIME
<br />AND COMPENSATORY TIME OFF
<br />
<br />6 553.20 Introduction.
<br />
<br />Section 7 of the FLSA requires that
<br />covered, nonexempt employees receive
<br />not less than one and one-half times
<br />their regular rates of pay for hours
<br />worked In excess of the applicable
<br />maximum hours standards. However,
<br />section 7(0) of the Act provides an ele-
<br />ment of flexibility to State and local
<br />government employers and an element
<br />of choice to their employees or the
<br />representatives of their employees reo
<br />gardlng compensation for statutory
<br />
<br />overtime hours. The exemption pro.
<br />vided by this subsection authorizes a
<br />public agency which is a State, a polit-
<br />ical subdivision of a State, or an inter-
<br />state governmental agency, to provide
<br />compensatory time off (with certain
<br />limitations, as prOVided In ~ 553.21> In
<br />lieu of monetary overtime compensa.
<br />tion that would otherwise be required
<br />under section 7. Compensatory time
<br />received by an employee in lieu of
<br />cash must be at the rate of not less
<br />than one and one-half hours of com-
<br />pensatory time for each hour of over.
<br />time work, just as the monetary rate
<br />for overtime Is calculated at the rate
<br />of not less than one and one-half
<br />times the regular rate of pay.
<br />
<br />Ii 553.21 Statutory provisions.
<br />Section 7(0) provides as follows:
<br />
<br />(0)(1) Employees of a public agency which
<br />Is a State, a political subdivision of a State,
<br />or an interstate governmental agency may
<br />receive, In accordance with this subsection
<br />and In lieu ol overtime compensation, com-
<br />pensatory time off at a rate not less than
<br />one and one-half hours for each hour of em-
<br />ployment for which overtime compensation
<br />Is required by this section.
<br />(2l A public agency may provide compen-
<br />satory time under paragraph (1) only-
<br />(A) Pursuant to-
<br />(\) Applicable provisions of a collective
<br />bargaining agreement, memorandum of un-
<br />derstanding, or any other agreement be-
<br />tween the public agency and representatives
<br />of such employees; or
<br />(jj) In the case of employees not covered
<br />by subclause (I>, an agreement or under-
<br />standing arrived at between the employer
<br />and employee before the performance ol
<br />the work; and--
<br />(a) If the employee has not accrued com-
<br />pensatory time In excess of the limit appli-
<br />cable to the employee prescribed by para-
<br />graph (3).
<br />In the case of employees described In
<br />clause (A)(jj) hired prior to AprJ] IS, 1986,
<br />the regular practice In effect on April 15,
<br />1986, with respect to compensatory time off
<br />for such employees In lieu of the receipt of
<br />overtime compensation, shall constitute an
<br />agreement or understanding under such
<br />clause (A)(II). Except as provided In the pre-
<br />vious sentence, the provision of compensato-
<br />ry time off to such employees for hours
<br />worked after April 14, 1986, shall be In ac-
<br />cordance wlth this subsection.
<br />(3)(A) If the work of an employee for
<br />which compensatory time inay be provlded
<br />Included work In a public safety actlvlty, an
<br />emergency response activity, or a seasonal
<br />actlvlty, the employee engaged In such work
<br />may accrue not more than 480 hours of
<br />compensatory time lor hours worked after
<br />April IS, 1986. If such work was any other
<br />work, the employee engaged In such work
<br />may accrue not more than 240 hours of
<br />compensatory time for hours worked after
<br />April IS, 1986. Any such employee who,
<br />after April 15, 1986, has accrued 480 or 240
<br />hours, as the case may be, of compensatory
<br />time off shall, lor additional overtime hours
<br />ol work, be paid overtime compensation.
<br />(Bl If compensation Is paid to an employ-
<br />ee for accrued compensatory time olf, such
<br />compensation shall be paid at the regular
<br />rate eamed by the employee at the time the
<br />employee receives such payment.
<br />(4) An employee who has accrued compen-
<br />satory time off authorized to be provided
<br />under paragraph (1) shall, upon termination
<br />ol employment, be paid for the unused com-
<br />pensatory time at a rate ol compensation
<br />not less than-
<br />
<br />2
<br />
<br />(A) The average regular rate rec(,ived by
<br />such employee during tht!. last 3 years of the
<br />employee's employment, or
<br />(B) The tlnal regular rate recelv<,ct by
<br />such employee, whichever Is higher.
<br />(5) An employee of a public agency which
<br />Is a State, political subdivisIon of a SU,te. or
<br />an Interstate governmental agency-
<br />(A) Who has accrued compensatory ~ime
<br />off authorized to be provided under ;:m:-'1-
<br />graph (1), and
<br />(Bl Who has requested the use of "ueh
<br />compensatory time, shall be permitted by
<br />the employee's employer to use such time
<br />within a reasonable period after making the
<br />request U the use of the compensattory time
<br />does not unduly disrupt the operatir,I's of
<br />the pUblic agency.
<br />(6) For purposes of this subsectlon-
<br />(A) The term overtime compensation
<br />means the compensation required by subu'~-
<br />tlon (a), and
<br />(B) The terms compensatory time !!nc.
<br />compenaatory time 011 means hours durin;,
<br />which an employee Is not working, whiCh
<br />are not counted as hours worked during the
<br />applJcable workweek or other work pNiod
<br />for purposes of overtime compensation. s.nd
<br />lor which the employee Is compensat.,d at
<br />the employee'S regular rate.
<br />
<br />[52 FR 2032, Jan. 16, 1987: 52 FR 2648, Jan.
<br />23, 1!lB71
<br />
<br />Il 553.22 "FLSA compensatory time" and
<br />"FLSA compensatory time off".
<br />
<br />(a) Compensatory time and compen-
<br />satory time off are interchangeable
<br />terms under the FLSA. Compensatory
<br />time off is paid time off the job which
<br />Is earned and accrued by an employee
<br />IIi lieu of Immediate cash payment f'Jr
<br />employment In excess of the statutory
<br />hours for which overtime compensa-
<br />tion Is required by section 7 of the
<br />FLSA.
<br />(b) The Act requires that compen<;a-
<br />tory time under section 7(0) be earned
<br />at a rate not less than one and one-
<br />half hours for each hour of employ-
<br />ment for which overtime compensr--
<br />tion is required by section 7 of the
<br />FLSA. Thus, the 480-hour limit on ac-
<br />crued compensatory time represents
<br />not more than 320 hours of actual
<br />overtime worked. and the 240-hour
<br />limit represents not more than 160
<br />hours of actual overtime worked.
<br />(c) The 480- and 240-hour limits or.
<br />accrued compensatory time only apply
<br />to overtinle hours worked after April
<br />15, 1986. Compensatory time which an
<br />employee has accrued prior to April
<br />15, 1986, is not subject to the overtime
<br />requirements of the FLSA and need
<br />not be aggregated with compensatory
<br />time accrued after that date.
<br />
<br />6 553.23 Agreement or understanding
<br />prior to performance of work.
<br />
<br />(a) GeneraL (1) As a condition for
<br />use of compensatory time In lieu of
<br />overtime payment In cash, section
<br />7(o)(2)(A) of the Act requires an
<br />agreement or understanding reached
<br />prior to the performance of work. This
<br />can be accomplished pursuant to a col-
<br />lective bargaining agreement, a memo-
<br />randum of understanding or any other
<br />agreement between the public agency
<br />
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