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<br />~553.24(d)
<br />
<br />sponse activities are not a regular part
<br />of the employee's job. Certain employ-
<br />ees who work in "emergency response"
<br />activities for purposes of section
<br />7(o)(3)(A) may qualify for the partial
<br />overtime exemption in section 7(k) of
<br />the Act. (See ~ 553.215.)
<br />(e)( 1) "Seasonal activity": The term
<br />"seasonal activity" includes work
<br />during periods of significantly in-
<br />creased demand, which are of a regu-
<br />lar and recurring nature. In determin-
<br />ing whether employees are considered
<br />engaged in a seasonal activity, the
<br />first consideration is whether the ac-
<br />tivity in which they are engaged is a
<br />regular and recurring aspect of the
<br />employee's work. The second consider-
<br />ation is whether the projected over-
<br />time hours during the period of sig-
<br />nificantly increased demand are likely
<br />to result in the accumulation during
<br />such period of more than 240 compen-
<br />satory time hours (the number avail-
<br />able u:lder the lower cap). Such pro-
<br />jections will normally be based on the
<br />employer's past experience with simi-
<br />lar employment situations.
<br />(2) Seasonal activity is not limited
<br />strictly to those operations that are
<br />very susceptible to changes in the
<br />weather. As an example, employees
<br />processing tax returns over an ex-
<br />tended period of significantly in-
<br />creased demand whose overtime hours
<br />could be expected to result In the ac-
<br />cumulation during such period of
<br />more than 240 compensatory time
<br />hours will typIcally qualify as engaged
<br />in a seasonal activity.
<br />(3) While parks and recreation activ-
<br />Ity is primarily seasonal because peak
<br />demand is generally experienced In
<br />fair weather. mere periods of short but
<br />intense activity do not make an em-
<br />ployee's job seasonal. For example,
<br />clerical employees working increased
<br />hours for several weeks on a special
<br />project or assigned to an afternoon of
<br />shoveling snow off the courthouse
<br />steps would not be considered engaged
<br />in seasonal activities, since the in-
<br />creased activity would not result in
<br />the accumulation during such period
<br />of more than 240 compensatory time
<br />hours. Further, persons employed in
<br />municipal auditoriums, theaters, and
<br />sports facilities that are opl:'n for spe-
<br />cific, limited seasons would be consid-
<br />ered engaged in seasonal activities,
<br />while those employed in facilities that
<br />operate year round generally would
<br />not.
<br />(4) Road crews, while not necessarily
<br />seasonal workers, may have significant
<br />periods of peak demand, for instance
<br />during the snow plowing season or
<br />road construction season. The snow
<br />plow operator/road crew employee
<br />may be able to accrue compensatory
<br />time to the higher cap, while other
<br />employees of the same department
<br />who do not have lengthy periods of
<br />peak seasonal demand would remain
<br />under the lower cap.
<br />
<br />[52 FR 2032. Jan. 16, 1987; 52 FR 2648, Jan.
<br />23, 1987]
<br />
<br />II 553.25 Conditions for use of compensa.
<br />tory time ("reasonable period",
<br />"unduly disrupt").
<br />
<br />(a) Section 7(0)(5) of the FLSA pro-
<br />vides that any employee of a public
<br />agency who has accrued compensatory
<br />time and requested use of this com.
<br />pensatory time, shall be permItted to
<br />use such time off WIthin a "reasonable
<br />period" -after making the request, jf
<br />such use does not "unduly disrupt"
<br />the operations of the agency. This
<br />provision, however, does not apply to
<br />"other compensatory time" (as defined
<br />below In ~ 553.28), including compensa-
<br />tory time accrued for overtime worked
<br />prior to April 15, 1986.
<br />(b) Compensatory time cannot be
<br />used as a means to avoid statutory
<br />overtime compensation. An employee
<br />has the right to use compensatory
<br />time earned and must not be coerced
<br />to accept more compensatory time
<br />than an employer can realistically and
<br />in good faith expect to be able to
<br />grant within a reasonable period of his
<br />or her making a request for use of
<br />such time.
<br />(c) Reasonable period. (1) Whether a
<br />request to use compensatory time has
<br />been granted wIthin a "reasonable
<br />period" will be determined by consid-
<br />ering the customary work practices
<br />within the agency based on the facts
<br />and circumstances in each case. Such
<br />practices include, but are not limited
<br />to (a) the normal schedule 'of work, (b)
<br />anticipated peak workloads based on
<br />past experience, (c) emergency re-
<br />qUIrements for staff and services, and
<br />(d) the avallabtUty of qualified substi-
<br />tute staff.
<br />(2) The use of compensatory time In
<br />lieu of cash payment for' overtime
<br />must be pursuant to some form of
<br />agreement or understanding between
<br />the employer and the employee (or
<br />the representative of tl1e employee)
<br />reached prior to the performance of
<br />the work. (See ~ 553.23.) To the extent
<br />that the (conditions under which an
<br />employee can take compensatory time
<br />off are contained in an agreement or
<br />understanding as defined in ~ 553.23,
<br />the terms of such agreement or under- '
<br />standing will govern the meaning of
<br />"reasonable period".
<br />(d) Unduly 'disrupL When an em-
<br />ployer receives a request for compen- .
<br />satory time off, It shall be honored
<br />unless to do so would be "unduly dis-
<br />ruptive" to the agency's operations.
<br />Mere inconvenience to the employer is
<br />an insufficient basis for denial of a re-
<br />quest for compensatory time off. (See
<br />H. Rep. 99-331, p. 23.) For an agency
<br />to turn down a request from an em-
<br />ployee for compensatory time off re-
<br />quires that it should reasonably and In
<br />good faith anticipate that it would
<br />impose an unreasonable burden on the
<br />agency's ability to provide services of
<br />acceptable quality and quantity for
<br />the pubUc during the time requested
<br />without the use of the employee's
<br />services.
<br />
<br />[52 FR 2032. Jan. 16, 1987; 52 FR 2648, Jan.
<br />23, 1987]
<br />
<br />4
<br />
<br />II 553.26 Cash overtime payments.
<br />
<br />(a) Overtime compensation due
<br />under section 7 may be paid In cash at
<br />the employer's option, in lieu of pro-
<br />Viding compensatory time off under
<br />section 7(0) of the Act In any work-
<br />week or work period. The FLSA dot":';
<br />not prohibit an empfoyer from freely
<br />substituting cash, In whole or part. for
<br />, compensatory time off; and overtime
<br />. payment in cash would not affect sub-
<br />sequent granting. of compen.<;atory
<br />time off In future workweeks or work
<br />periods. (See ~ 553.23(a)(2)')
<br />(b) The principles for computim;
<br />cash overtime pay are contained in 29
<br />CFR part 778. Cash overtime compen-
<br />sation must be paid at a rate not leS0
<br />than one and one-half times the regu-
<br />lar rate at-which the employee is actu-
<br />ally raid. (See 29 CFR 778.107.)
<br />(c) In a workweek or work period
<br />during which an employee works
<br />hours which, are overtime hours unde:-
<br />FLSA and for which cash overtime
<br />payment will be made, and the em-
<br />ployee also takes compensat.ory time
<br />off, the payment for such time off
<br />may be excluded from the regular ra:e
<br />of pay under section 7(e)(2) of the Act.
<br />Section 7(e)(2) provides t.hat the regu-
<br />lar rate shall not be deemed to include
<br />
<br />. . . payments made for occasional periods
<br />when no work is perfonned due to vacation.
<br />holiday. . . . or other slml.lar cause.
<br />
<br />As explained in 29 CFR 778.218(d). the
<br />term "other similar cause" refers to
<br />payments made for periods of absence
<br />due to factors Hke holidays, vacations,
<br />illness, and so forth. Payments made
<br />to an employee' for periods of absence
<br />due to the use of accrued compen.<;ato-
<br />ry time are considered to be the type
<br />of payments in this "other similar
<br />cause" category.
<br />
<br />II 553.27 Payments for unused compensa.
<br />tory time.
<br />
<br />(a) Payments for accrued compensa-
<br />tory time ,earned after April 14, 1986,
<br />may be made at any time and shall be
<br />paid at the regular rate earned by the
<br />employee at the time the employee re-
<br />ceives such payment.
<br />(b) Upon termination of employ-
<br />ment, an employee shall be paid for
<br />unused compensatory time earned
<br />after April 14, 1986, at a rate of com-
<br />pensation not less than-
<br />(1) The average regular rate received
<br />by such employee during the last 3
<br />'years of the employee's employment,
<br />or
<br />(2) The final regular rate received by
<br />such employee, whichever is higher.
<br />(c) The phrase last 3 years of em-
<br />ployment means the 3-year period im-
<br />medIately prior to termination. Where
<br />an employee's last 3 years of employ-,
<br />ment are not continuous because of a
<br />break in service, the period of employ-
<br />ment after the break In service will be
<br />treated as new employment. However,
<br />such a break in service must have been
<br />intended to be permanent and any ac-
<br />crued compensatory time earned after
<br />April 14, 1986, must have been cashed
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