                                  The Attorney         General of Texas
                                                    thy 19, 1986
JIM MAlTOX
Attorney General



Supreme Cowl BulldInS            Mr. Vernon M. Arrell                    Opinion No. JM-491
P. 0. BOX 12545
Austin. TX. 75711. 2545
                                 Comieeioner
512/4752501                      Texas Rehabilitation Commission         Re: Whether a state agency may
Telex 9101874.1367               118 East Riverside Drive                require Its employees to take
Telecopier  5121475.0255         Austin, Texas   78704                   compensatory time in lieu of
                                                                         overtime pay
714 Jackson, Suite 700
Dallas. TX. 75202.4505           Dear Mr. Arrell:
214/742-8944
                                      You ask whl?ther a conflict exists between the provisions of
                                 section 2f(l) of article V of the current General Appropriations Act,
4824 Alberta   Ave., Suite 160
El Paso, TX. 79905.2793
                                 Acts 1985. 69th 'Leg., ch. 980, at 7759, and the Fair Labor Standards
915/533-3484                     Act of 1938, 29 U.S.C. 5201 et seq. (hereinafter  FLSA). You wish to
                                 knov whether a stste agency may allow or require an employee to take
                                 compensatory tine off for overtime instead of paying overtime
1001 Texas, Suits 700            compensation.
Houston, TX. 77002~3111
713/2235885
                                      Section 2f(l) provides, in part:

806 Broadway, Suite, 312                   f.  OVI!F:TIME. (1) Employees Subject to FLSA. An
Lubbock, TX. 79401.3479                    employm who is subject to the overtime provisions
505l747.5235
                                           of the Fair Labor Standards Act of 1938, 29 U.S.C.
                                           Sets. :201 et seq.. (FLSA)        is entitled to
4309 N. Tenth. Suite S                     compen~ia~tionfor overtime as provided by this
McAllen, TX. 78501.1685                    subdiv:.sion.
5121682.4547

                                              An employee who Is required to work hours in
200 Main Plaza, Suite 400                  excess of 40 hours in a workweek is entitled to
San Antonio. TX. 782052797                 cmpenwtion  for the excess hours either by:
51212254191

                                              (A) the agency allowing (or requiring) the
An Equal OpportunityI
                                           employw to take compensatory  time off during the
Affirmative Action Employer                same p,~y period, at the rate of 1% hours off for
                                           each hour of overtime; or

                                              (B) at the discretion of the employing agency,
                                           in cases In which granting compensatory time off
                                           is imp::actical.the employee receiving pay for the
                                           overtim: at the rate equal to 1% times the
                                           employw's regular rate of pay. (Emphasis added).




                                                         p. 2239
Ur. Vernon M. Arnell - Page 2   (JM-491)




     The PLSA was amended ,cecentlyto specify that a public employer
may provide an employee with time off, at a rate of 1% hours of time
off for each hour of overtime, in lieu of overtime pay under certain
circumstances. See Fair :,abor Standards Amendments of 1985, Pub. L.
99-150, §Z(a)(l)T        Z,tat.       (1985). These amendmer.ts took
effect April 15. 19K      'Id
                         .-A   The985     amendments also affected the
applicability of section 2f(l)(A)    with   regard to the time period
during which time off musk:be taken.   Attorney  General Opinion m-475
(1986).  Opinion JM-475 atldressedhow  the  1985 amendments to the FLSA
affected sectlons 2f(l) and 2f(4) of the current appropriations act.
Section 2f(4) is a "contic,gencyprovision," contingent upon amendments
to the FLSA.    Section 2f'(4) allows overtime time off to be taken
during the 12-month peric'd after the week in vhich the overrime
accrued. Opinion m-475 concluded that state agencies may allov or
require an employee to tak#e time off, at a rate of 1% hours for each
hour of overtime, during xhe 12-month period following the end of the
workweek for overtime incurred on or after April 15, 1986.
Accordingly, your question with regard to policy and practice after
April 15 is answered in Qll.nionm-475.

     You are also concexaed with potential liability for overtime
policy and practice In effect prior to April 15. A state agency's
practice of allowing or requiring an employee to take time off in lieu
of overtime pay, pursuant to section 2f(l), prior to April 15 does not
conflict wirh the FLSA. As it was applicable prior to April 15,
section 2f(l) authorized a state agency to allow or require its
employees "to take compensatory time off during the same pay period,
at a rate of 1% hour s ofji for each hour of overtime." As indicated,
Opinion JM-475 determine3 that, because of the legislative intent
expressed in section 2f(4) and because of the 1985 amendments to the
FLSA. compensatory time off for overtime incurred after April 15 need
not be limited to the samlapay period.

     The "same pay perioi." requirement was initially included by the
Texas Legislature only kn an effort to comply with the RSA          as
required by the United St.ates Supreme Court In Garcia v. San Antonio
Netrogolltan Transit Authority, 105, S. Ct. 1005.           U.S.
(1985). See Opinion m-475.     Court interpretations ofthe versicnE
the FLSAX    effect when Garcia was decided indicated that the act
allowed compensatory time off in lieu of payment only if time off was
granted during the same pay period. See Dunlop v. New Jersey, 522
F.2d 504. 511 (3d Cir. 1975). vacated3      remanded on other grounds
for consideration of Natj.onalLeague of Cities sub nom New Jersey v.
Uaery, 427 U.S. 909 (19:;21);Attorney General Opinion H-382 (1974).
Accordingly, the pracrice of allowing or requiring an employee to take
compensatory time off for overtime worked in lieu of paying overtime
compensation under certain circumstances is not inconsistent with the
FLSA either as it existetlprior to April 15 or as amended. See also




                                 p. 2240
Mr. Veruon l4.Arnell - Paglr3 (JM-491)




Pub. L. 99-150. 12(c) (llmltation of liability of states and political
subdivisions for actions prior to April 15. 1986).

                              SUMMARY

             A  state agency's practice of alloving or
          requiring an emp'loyee to take compensatory time
          off for overtime in lieu of paying overtime
          compensation under certain circumstances   is nor
          inconsistent with the FLSA as it existed prior to
          April 15 or as am,ended.




                                        J-h
                                          Very truly your
                                                 .


                                          JIM     HATTOX
                                          Attorney General of Texas

JACK RIGBTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney,General

RICR GILPIN
Chairman, Opinion Consnittt:e

Prepared by Jennifer Riggs;
Assistant Attorney Genera1




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