Dive Brief:
- The U.S. Court of Federal Claims has conditionally certified a collective action lawsuit alleging that certain current and former employees of the Bureau of Alcohol, Tobacco, Firearms and Explosives weren't paid overtime required by the Fair Labor Standards Act (FLSA) (Boggs v. United States, No. 17-1946C (Fed. Cl., Aug. 27, 2018)).
- Employees of the agency alleged in the suit that they were misclassified as exempt and denied overtime for years. Once reclassified as nonexempt, they were given compensatory time for extra hours, they said.
- Despite two of the categories of employees being more senior, the government seemed to accept a "similarly situated" status for all four worker categories, leading the court to conclude that the collective action could be certified on a conditional basis. The court also approved the proposed notice to potential members of the collective action. The suit seeks back pay, liquidated damages, interest, attorneys' fees and costs.
Dive Insight:
Employees who don't meet both the FLSA's salary threshold and a duties test are not exempt from the law's overtime requirements; they're entitled to time-and-one-half their regular rate of pay for all hours worked beyond 40 in a workweek. And while it appears ATF awarded comp time to employees it determined to be exempt, the FLSA doesn't require this.
Comp time in lieu of overtime pay is sometimes allowed for nonexempt public employees. Under certain conditions, employees of state or local government agencies may receive compensatory time off, at a rate of not less than one-and-one-half hour for each overtime hour worked, instead of cash overtime pay, according to a U.S. Department of Labor fact sheet. The same goes for some federal employees, although the Office of Personal Management says the rate can be one-to-one.
DOL recommends, however, that employers check all applicable state or local laws, noting that some may forbid such practices.
And when it comes to private employment, businesses may not ever award nonexempt employees time off instead of overtime payments. Employees eligible for overtime must be paid at least one-and-one-half their regular rate for all hours worked beyond 40 in a workweek — and that's a right that can't be waived.