
    Lynwood MOREAU, et al., Plaintiffs, v. HARRIS COUNTY, et al., Defendants.
    Civil Action No. H-94-1427.
    United States District Court, S.D. Texas.
    Nov. 25, 1996.
    Richard H. Cobb, Murray E. Malakoff, Houston, Texas, for Plaintiffs.
    
      Bruce Powers, Houston, Texas, for Defendants..
   Opinion on Summary Judgment

HUGHES, District Judge.

1. Introduction.-

Harris County employees sued it for forcing them to use their accumulated compensatory time at its convenience. County supervisors compelled employees to use then-accrued time when their balances approached a set level. Accumulated time credits cannot be managed differently than salary; employees have a right to use it when they choose.

2. Accumulation.

The Harris County Sheriffs department has determined a maximum level for accumulated time credits. The level varies among component sections within the department. The maximum hours that may be maintained is set by each bureau commander based on assessments of its personnel requirements. When an employee’s accumulated time approaches that level, the employee is asked to decrease it. If he does not comply promptly, the supervisor orders him to do it. Dissatisfied employees may complain informally within the department hierarchy.

3. Fair Labor Standards Act.

Public employers may pay their employees for overtime by awarding time off at the rate of one and one-half hours for each hour. 29 U.S.C. § 207(o) (1992). Governments are allowed to substitute time off for cash as compensation, but the time credits need to be as nearly equivalent to cash as possible; the time off must be consumable by the worker on the worker’s terms. Heaton v. Moore, 43 F.3d 1176 (8th Cir.1994), cert. denied, Schriro v. Heaton, — U.S. —, 115 S.Ct. 2249, 132 L.Ed.2d 257 (1995).

Federal law limits maximum accrued time to 240 or 480 hours, depending on the type of work an employee does. Employees must be paid cash for additional hours. The workers in this case have not yet accrued 240 hours. The function of the county limits is to force workers to take time off rather than to keep working and receive cash for later overtime.

4. Public Administration.

If the government finds it inconvenient to schedule around employees taking their compensatory time, it is always free to switch to cash compensation at the premium rate that other employers have to bear. If the government finds it inconvenient to pay workers who reach the statutory limit the cash premium required by federal law, it is always free to hire additional workers, lowering the hours worked by each. This spreading of economic opportunity was among the social policies that led to'the wage and hour laws in the first place. See generally Learned Hand, Due Process of Law and the Eight-Hour Day, 21 Harv.L.Rev. 495 (1908); Lonnie Golden, The Economics of Worktime Length, Adjustment, and Flexibility: a Synthesis of Contributions from Competing Models of the Labor Market, REV.SOC.ECON., Mar. 1, 1996.

Limiting accumulated time might otherwise be a reasonable management technique, but federal law says a worker cannot be made to bear the burden of the government’s allocation of its resources. The way for public employers to control the use of compensatory time is for them to control its being generated in the first place.

5. Extortionate Consumption.

A public employer may exercise control over an employee’s use of compensatory time only when the employee’s requested use of that time would disrupt the employer’s operations. An employee could attempt to extort concessions from her employer by taking compensatory time at a time when her presence is critical to the operation, but no suggestion has been made that the sheriffs office has been the victim of abusive workers. Frankly, it is difficult to imagine this argument being serious.

Although an employer may establish reasonable restrictions on vacations, sick leave, and other time-off forms of compensation, it cannot evade its statutory obligation for extra pay for overtime work, even when the statute allows the extra pay to be in the form of time off. Compensatory time is far less amenable to management adjustment than the others because the time off is in place of cash pay required by statute.

6. Conclusion.

Compensatory time, like overtime, causes management problems, including taxpayer reactions. The government and its managers must solve those problems without imposing on the statutorily-protected rights of the workers.  