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z Hampton Employee Connection

Posted on: June 30, 2021

City stops using comp time for non-exempt employees who work overtime

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June 30, 2021 — Employees were informed about a change in how the city can compensate non-exempt employees for work beyond 40 hours a week. Human Resources Director Nicole M. Clark sent an email about the change to city employees on June 30.

The city compensates all non-exempt employees for time worked in excess of 40 hours in an administrative work week (Saturday to Saturday) at 1.5 times their regular rate of pay. While an employee can request cash overtime instead of compensatory time (comp time) before overtime work is performed, the default method of overtime compensation in the city has been comp time. The Fair Labor Standards Act allows the city and other public employers to pay comp time instead of cash for overtime.  

The 2021 Virginia General Assembly passed a new law that became effective July 1 – the Virginia Overtime Wage Act. The law contains language, which has been interpreted by the Department of Labor and Industry and supported by the attorney general, that questions the public sector’s ability to compensate overtime hours with comp time. The city believes there will be an amendment to the new law during the upcoming General Assembly special session, set to begin on Aug. 2, to clarify whether comp time use is permitted.  

However, until the confusion is resolved, beginning with the pay period starting Saturday, July 3, 2021, the city will temporarily suspend the earning of comp time and will instead pay cash for all overtime hours worked. The exception is non-exempt sworn law enforcement and fire suppression employees, who may continue to earn comp time. The Kronos system has been reconfigured to eliminate the ability to accrue comp time.  This means there will no longer be an option for comp time even if the employee requests comp time. Departments that do not have room in their budgets to accommodate cash payments for overtime must utilize other strategies for managing overtime. Flexing an employee who works over 40 hours within the administrative workweek remains an option. Shifting duties to exempt employees if they are not completed in 40 hours by the non-exempt employees is another option. Under no circumstances should supervisors be altering timecards or allowing employees to clock out and continue working. Any employee found to have engaged in such activities will be subject to discipline up to and including termination.

Existing comp time balances will not be impacted and can continue to be used as leave and will be paid out upon separation or change in status to exempt in accordance with policy.    

Should you have any questions, please contact your Human Resources liaison.

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