Introduction to the Fair Labor Standards Act (FLSA)

4. M AXIMUM A CCRUAL C APS For work in “public safety,” “emergency response,” and “seasonal” activities, the FLSA permits employees to accumulate up to a “cap” of 480 CTO hours. 159 The 480 hour cap represents 320 FLSA overtime hours worked, because CTO must be credited at time and one-half. For all other jobs, employees may accumulate up to a cap of 240 CTO hours (160 FLSA overtime hours worked). B. U SE OF A CCUMULATED FLSA CTO Under the Act, an employee who has requested the use of accumulated CTO is permitted to use such time “within a reasonable period” after making the request unless using the CTO will “unduly disrupt” the operations of the agency. 160 Under the Act, an employer must grant an employee’s request to use CTO “within a reasonable period” after the request is made. If the employer cannot grant the CTO request within a reasonable period, the denial of the request will be unlawful unless the employer can demonstrate that granting the request would “unduly disrupt” its operations. 161 The definitions of “reasonable period” and “unduly disrupt” are therefore critical to a determination of when a CTO request must be granted. 1. “R EASONABLE P ERIOD ” Whether an employee’s request to take CTO is granted within a “reasonable period” depends upon the agency’s or department’s customary work practices, including such factors as:



the normal schedule or work;

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anticipated peak workloads;

 emergency requirements for staff in order to provide services; and

 the availability of qualified substitutes. 162

The DOL regulations expressly provide that if the applicable labor agreement defines what constitutes a reasonable period, then the labor agreement will govern the issue. 163 Courts have upheld CTO usage systems that gave employees a fixed window of time, such as 30 days, 60 days, or even one year, in which to use their CTO. 164 These systems provided a set number of time-off opportunities for each day in the window, and once those opportunities were filled, no one else could use CTO on that day. According the Ninth Circuit, employees do not have an absolute right to use CTO on a specific day if other days within the reasonable period are available to the employee. 165 Although all of the cases that have addressed the definition of reasonable period involved police officers, the rationale would likely apply to civilian employees.

Introduction to the Fair Labor Standards Act (FLSA) ©2019 (s) Liebert Cassidy Whitmore 33