JIM MAlTOX 

Attorney General 

Supreme Cowl BulldInS 

P. 0. BOX 12545 

Austin. TX. 75711. 2545 

512/4752501 

Telex 9101874.1367 

Telecopier 5121475.0255 

714 Jackson, Suite 700 

Dallas. TX. 75202.4505 

214/742-8944 

4824 Alberta Ave., Suite 160 

El Paso, TX. 79905.2793 

915/533-3484 

1001 Texas, Suits 700 

Houston, TX. 77002~3111 

713/2235885 

806 Broadway, Suite, 312 

Lubbock, TX. 79401.3479 

505l747.5235 

4309 N. Tenth. Suite S 

McAllen, TX. 78501.1685 

5121682.4547 

200 Main Plaza, Suite 400 

San Antonio. TX. 782052797 

51212254191 

An Equal OpportunityI 

Affirmative Action Employer 

The Attorney General of Texas 

thy 19, 1986 

Mr. Vernon M. Arrell 

Comieeioner 

Opinion No. JM-491 

Texas Rehabilitation Commission 

118 East Riverside Drive 

Austin, Texas 78704 

Re: Whether a state agency may 

require Its employees to take 

compensatory time in lieu of 

overtime pay 

Dear Mr. Arrell: 

You ask whl?ther a conflict exists between the provisions of 

section 2f(l) of article V of the current General Appropriations Act, 

Acts 1985. 69th 'Leg., ch. 980, at 7759, and the Fair Labor Standards 

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 

compensation. 

Section 2f(l) provides, in part: 

f. OVI!F:TIME. (1) Employees Subject to FLSA. An 

employm who is subject to the overtime provisions 

of the Fair Labor Standards Act of 1938, 29 U.S.C. 

Sets. :201 et seq.. (FLSA) is entitled to 

compen~ia~tion for overtime as provided by this 

subdiv:.sion. 

An employee who Is required to work hours in 

excess of 40 hours in a workweek is entitled to 

cmpenwtion for the excess hours either by: 

(A) the agency allowing (or requiring) the 

employw to take compensatory time off during the 

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 ,cecently to 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 atldressed how the 1985 amendments to the FLSA 

affected sectlons 2f(l) and 2f(4) of the current appropriations act. 

Section 2f(4) is a "contic,gency provision," 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.nion m-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 samla pay 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.onal League 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 existetl prior to April 15 or as amended. See also 

p. 2240 
Mr. Veruon l4. Arnell - Paglr 3 (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. 

Very truly your J-h . 

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 

p. 2241