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<br />~553.23(a)(1 )
<br />
<br />and representatives of the employees.
<br />If the employees do not have a repre-
<br />sentative, compensatory time may be
<br />used in lieu of cash overtime compen-
<br />sation only if such an agreement or
<br />understanding has been arrived at be-
<br />tween the public agency and the indi-
<br />vidual employee before the perform-
<br />ance of work. No agreement or under-
<br />standing is required with respect to
<br />employees hired prior to April 15,
<br />1986 who do not have a representa-
<br />tive;' if the employer had a regular
<br />practice in effect on April 15, 1986, of
<br />granting compensatory time off in lieu
<br />of overtime pay.
<br />(2) Agreements or understandings
<br />may provide that compensatory time
<br />off in lieu of overtime payment in cash
<br />may be restricted to certain hours of
<br />work only. In addition, agreements or
<br />understandings may provide for any
<br />combination of compensatory time off
<br />and overtime payment in cash (e.g.,
<br />one hour compensatory time credit
<br />plus one-half the employee's regular
<br />hourly rate of pay in cash for each
<br />,hour of overtime worked) so long as
<br />the premium pay principle of at least
<br />"time and one-half" is maintained.
<br />The agreement ,or understanding may
<br />include other provisions governing the
<br />preservation, use, or cashing out of
<br />compensatory time so long as these
<br />provisions are consistent with section
<br />7(0) of the Act. To the extent that any
<br />provision of an agreement or under-
<br />standing is in violation of section 7(0)
<br />of the Act, the provision is superseded
<br />by the requirements of section 7(0).
<br />(b) Agreement or understanding be-
<br />tween the public agency and a repre-
<br />sentative of the employees. (1) Where
<br />employees have a representative, the
<br />agreement or understanding concern-
<br />ing the use of compensatory time must
<br />be between the representative and the
<br />public agency either through a collec-
<br />tive bargaining agreement or through
<br />a memorandum of understanding or
<br />other type of oral or written agree-
<br />ment. In the absence of a collective
<br />bargaining agreement applicable to
<br />the employees, the representative
<br />need not be a formal or recognized
<br />bargaining agent as long as the repre-
<br />sentative is designated by the employ-
<br />ees. Any agreement must be consistent
<br />with the provisions of section 7(0) of
<br />the Act.
<br />(2) Section 2(b) of the 1985 Amend-
<br />ments provides that a collective bar-
<br />gaining agreement in effect on April
<br />15, 1986, which permits compensatory
<br />time off in lieu of overtime compensa-
<br />tion, will remain in effect until the ex-
<br />piration date of the collective bargain-
<br />ing agreement unless otherwise modi-
<br />fied. However, the terms and condi-
<br />tions of such agreement under which
<br />compensatory time off is provided
<br />after April 14, 1986, must not violate
<br />the requirements of section 7(0) of the
<br />Act and these regulations.
<br />(c) Agreement or understanding be-
<br />tween the public agency and individ-
<br />ual employees. (I) Where employees of
<br />a public agency do not have a recog-
<br />nized or otherwise designated repre-
<br />sentative, the agreement or under-
<br />
<br />standing concerning compensatory
<br />time off must be between the public
<br />agency and the individual employee
<br />and must be reached prior to the per-
<br />formance of work. This agr~ement or
<br />understanding with individuaf\,employ-
<br />ees need not be in writing, but a record
<br />of its existence must be kept. (See
<br />~ 553.50.) An employer need not adopt
<br />the same agreement or understanding
<br />with diffe!'ent employees and need not
<br />provide compensatory time to all em-
<br />ployees. The agreement or under-
<br />standing to provide compensatory
<br />time off in lieu of cash overtime com-
<br />pensation may take the form of an ex-
<br />press condition of employment, pro-
<br />vided (i) the employee knowingly and
<br />voluntarily agrees to it as a. condition
<br />of employment and (if) the employee
<br />is informed that the compensatory
<br />time received may be preserved, used
<br />or cashed out consistent with the pro-
<br />visions of section 7(0) of the Act. An
<br />agreement or understanding may be
<br />evidenced by a notice to the employee
<br />that compensatory time off will be
<br />given in lieu of overtime pay. In such a
<br />case, an agreement or understanding
<br />would be presumed to exist for pur-
<br />poses of section 7(0) with respect to
<br />any employee who faUs to express to
<br />the employer an unwillingness to
<br />accept compensatory time off in lieu
<br />of overtime pay. However, the employ-
<br />ee's decision to accept compensatory
<br />time off in lieu of cash overtime pay-
<br />ments must be made freely and with-
<br />out coercion or pressure.
<br />(2) Section 2(80) of the 1985 Amend-
<br />ments provides that in the case of em-
<br />ployees who have no representative
<br />and were employed prior to April 15,
<br />1986, a public agency that has had a
<br />regular practice of awarding compen-
<br />satory time off in lieu of overtime pay
<br />is deemed to have reached an agree-
<br />ment or understanding with these em-
<br />ployees as of April 15, 1986. A public
<br />agency need not secure an agreement
<br />or understanding with each employee
<br />employed prior to that date. If, howev-
<br />er, such a regular practice does not
<br />conform to the provisions of section
<br />7(0) of the Act, it must be modified to
<br />do so with regard to practices after
<br />April 14, 1986. With respect to employ-
<br />ees hired after April 14, 1986, the
<br />public employer who elects to use com-
<br />pensatory time must follow the guide-
<br />lines on agreements discussed in para-
<br />graph (c)( 1> of this section.
<br />
<br />[52 FR 2032, Jan. 16, 1987: 52 FR 2648. Jan.
<br />23, 1987]
<br />
<br />II 553.24 "Public safety", "emergenc:y re-
<br />sponse", and "seasona'" activities.
<br />
<br />(a) Section 7(0)(3)(A) of the Fl.SA
<br />provides that an employee of a public
<br />agency which is a State, a political
<br />subdivision of a State, or an interstate
<br />governmental agency, may accumulate
<br />not more than 480 hours of compensa-
<br />tory time for Fl.SA overtime hours
<br />which are worked after April 15, 1986,
<br />if the employee is engaged in "public
<br />safety", "emergency response", or
<br />"seasonal" activity. Employees whose
<br />work includes "seasonal", "emergency
<br />
<br />3
<br />
<br />response", or "public safety" activities,
<br />as well as other work, will not be sub-
<br />ject to both limits of accrual for com-
<br />pensatory time. If the employee's
<br />work regularly involves the acUvities
<br />included in the 480-hour limit, the em-
<br />ployee will be covered by that limit. A
<br />public agency cannot utilize the
<br />higher cap by simple classification or
<br />designation of an employee. The work
<br />performed is controlling. Assignment
<br />of occasional duties within the scope
<br />of the higher cap will not entitle the
<br />employer to use the higher cap. Em-
<br />ployees whose work does not regularly
<br />involve "seasonal", "emergency re-
<br />sponse", or "public safety" activities
<br />are subject to a 240-hour compensato-
<br />ry time accrual limit for Fl.SA over-
<br />time hours which are worked after
<br />April 15, 1986.
<br />(b) Employees engaged in "public
<br />safety", "emergency response", or
<br />"seasonal" activities, who transfer to
<br />positions subject to the 240-hour limit,
<br />may carryover to t.he new position
<br />any accrued compensatory time. The
<br />employer will not be required to cash
<br />out the accrued compensatory time
<br />which is in excess of the lower limit.
<br />However, the employee must be com-
<br />pensated in cash wages for any subse-
<br />Quent overtime hours worked until the
<br />number of accrued hours of compensa-
<br />tory time falls below the 240-hour
<br />limit.
<br />(c) "Public safety activities": The
<br />term "public safety activities" as used
<br />in section 7(0)(3)(A) of the Act in-
<br />cludes law enforcement, fire fighting
<br />or related activities as described in
<br />U 553.210 (a) and (b> and 553.211 (a)-
<br />(c>, and ([). An employee whose work
<br />regularly involves such activities will
<br />Qualify for the 480-hour accrual limit.
<br />However, the 480-hour accrual limit
<br />will not apply to office personnel or
<br />other civilian employees who may per-
<br />form public safety activities only in
<br />emergency situations. even if they
<br />spend substantially all of their time in
<br />a particular week in such activities.
<br />For example, a maintenance worker
<br />employed by a public agency who is
<br />called upon to perform fire fighting
<br />activities during an emergency would
<br />remain subject to the 240-hour limit,
<br />even if such employee spent an entire
<br />week or several weeks in a year per-
<br />forming public safety activities. Cer-
<br />tain employees who work in "publlc
<br />safety" activities for purposes of sec-
<br />tion 7(0)(3)(A) may qualify for the
<br />partial overtime exemption in section
<br />7(k) of the Act. (See ~ 553.201>
<br />(d) "Emergency response activity":
<br />The term "emergency response activi-
<br />ty" as used in section 7(o)(3)(A> of the
<br />Act includes dispatching of emergency
<br />vehicles and personnel, rescue work
<br />and ambulance services. As is the case
<br />with "public safety" and ".3easonal"
<br />activities, an employee must regularly
<br />engage in "emergency response" ac-
<br />tivities to be covered under the 480-
<br />hour limit. A city office worker who
<br />may be called upon to perform rescue
<br />work in the event of a flood or snow-
<br />storm would not be covered under the
<br />higher limit, since such emergency re-
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