The fair labor standards act of 1938, as amended




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In the case of employees described in


clause (A)(ii) hired prior to April 15, 1986, the

regular practice in effect on April 15, 1986, with

respect to compensatory time off for such em-ployees

in lieu of the receipt of overtime compensation,

shall constitute an agreement or

understanding under such clause (A)(ii). Except

as provided in the previous sentence, the

provision of compensatory time off to such employees

for hours worked after April 14, 1986,

shall be in accordance with this subsection.

(3) (A) If the work of an employee for which

compensatory time may be provided included

work in a public safety activity, an emergency

response activity, or a seasonal activity, the employee

engaged in such work may accrue not

more than 480 hours of compensatory time for

hours worked after April 15, 1986. If such work

was any other work, the employees engaged in

such work may accrue not more than 240 hours

of compensatory time for hours worked after

April 15, 1986. Any such employee who, after

April 15, 1986, has accrued 480 or 240 hours,

as the case may be, of compensatory time off

shall, for additional overtime hours of work, be

paid overtime compensation.

(B) If compensation is paid to an employee

for accrued compensatory time off, such compensation

shall be paid at the regular rate

earned by the employee at the time the employee

receives such payment.

(4) An employee who has accrued compensatory

time off authorized to be provided under paragraph

(1) shall, upon termination of employment,

be paid for the unused compensatory time at a rate

of compensation not less than —

(A) the average regular rate received by

such employee during the last 3 years of the

employee’s employment, or

(B) the final regular rate received by such

employee, whichever is higher.

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60 As added by section 2(a) of the Fair Labor Standards Amendments of 1985,

effective April 15, 1986.

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(5) An employee of a public agency which is a

State, political subdivision of a State, or an inter-state


governmental agency —

(A) who has accrued compensatory time

off authorized to be provided under paragraph

(1), and

(B) who has requested the use of such

compensatory time, shall be permitted by the

employee’s employer to use such time within a

reasonable period after making the request if

the use of the compensatory time does not unduly

disrupt the operations of the public agency.

(6)61 The hours an employee of a public agency

per forms court report ing transcript preparation duties

shall not be considered as hours worked for the purposes

of subsection (a) if —

(A) such employee is paid at a per-page

rate which is not less than —

(i) the maximum rate established by

State law or local ordinance for the jurisdiction

of such public agency,

(ii) the maximum rate otherwise established

by a judicial or administrative officer

and in effect on July 1, 1995, or

(iii) the rate freely negotiated between

the employee and the party requesting the

transcript, other than the judge who pre-sided

over the proceedings being transcribed,

and


(B) the hours spent performing such duties

are outside of the hours such employee performs

other work (including hours for which the agency

requires the employee’s attendance) pursuant to

the employment relationship with such public

agency.


For purposes of this section, the amount paid such

employee in accordance with subparagraph (A) for the

performance of court reporting transcript preparation

duties, shall not be considered in the calculation of the

regular rate at which such employee is employed.

(7)62 For purposes of this subsection —

(A) the term “overtime compensation”

means the compensation required by subsection

(a), and

(B) the terms “compensatory time” and

compensatory time off” mean hours during



which an employee is not working, which are

not counted as hours worked during the applicable

workweek or other work period for purposes

of overtime compensation, and for which

the employee is compensated at the employee’s

regular rate.

(p)63 (1) If an individual who is employed by a State,

political subdivision of a State, or an interstate governmental

agency in fire protection or law enforcement

activities (including activities of security personnel

in correctional institutions) and who, solely

at such individual’s option, agrees to be employed

on a special detail by a separate or independent employer

in fire protection, law enforcement, or related

activities, the hours such individual was employed

by such separate and independent employer shall

be excluded by the public agency employing such

individual in the calculation of the hours for which

the employee is entitled to overtime compensation

under this section if the public agency —

(A) requires that its employees engaged

in fire protection, law enforcement, or security

activities be hired by a separate and independent

employer to perform the special detail,

(B) facilitates the employment of such

employees by a separate and independent

employer, or

(C) otherwise affects the condition of employment

of such employees by a separate and

independent employer.

(2) If an employee of a public agency which

is a State, political subdivision of a State, or an

interstate governmental agency undertakes, on an

occasional or sporadic basis and solely at the em-ployee’s

option, part-time employment for the pub-lic

agency which is in a different capacity from any

capacity in which the employee is regularly em-ployed

with the public agency, the hours such

employee was employed in performing the different

employment shall be excluded by the public agency

in the calculation of the hours for which the em-ployee

is entitled to overtime compensation under

this section.

(3) If an individual who is employed in any ca-pacity

by a public agency which is a State, political

subdivision of a State, or an interstate governmen-tal

agency, agrees, with the approval of the public

agency and solely at the option of such individual,

to substitute during scheduled work hours for an

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- 61 As added by the Court Reporter Fair Labor Amendments of 1995, effective

September 6, 1995 (109 Stat. 264).

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