"Comp time" isn't much of an incentive.
January 16, 2009 9:49 AM   Subscribe

Is "comp time" (aka "Banker's Hours") legal in the state of New Mexico? Is my company breaking the law when they give me an hour of vacation leave for an hour of overtime instead of time-and-a-half?

I've always thought that the comp time policy was a bit of a sham at the place I work. I saw a post here about a week ago asking about it and some of the replies suggested that this practice was illegal in California as well as other states. Where do I go to find out if it legal in my state, New Mexico?

If it is illegal, what actions should I take without becoming "unpopular" to my supervisors?
posted by nickerbocker to Work & Money (18 answers total)
Are you an exempt or non-exempt employee?
posted by phoenixy at 9:56 AM on January 16, 2009

Lots of good information here.
posted by annaramma at 9:57 AM on January 16, 2009

Well, there's this.
posted by rtha at 9:57 AM on January 16, 2009

If you are a non-exempt employee, it is illegal. I don't think there is any way you can take action without becoming very unpopular to your supervisors. That's how companies get away with it - employees are too intimidated to report it. I once confronted my employer about this practice and his flippant response was "So sue me." I didn't sue him, but when I left that company I did report him to the State of Michigan Department of Labor.
posted by Oriole Adams at 10:00 AM on January 16, 2009 [1 favorite]

Hi. I'm not sure what exempt or non-exempt would mean. I am considered "salary" instead of "hourly" if that may have anything to do with it.
posted by nickerbocker at 10:08 AM on January 16, 2009

You are most likely not eligble for overtime. If they give you comp time that is just them being nice. Often when you are salaried, you don't get any comp time or adjustment or anything. I worked 60 hours that week and didn't get or expect anything extra for it, its the name of the game.
posted by stormygrey at 10:11 AM on January 16, 2009 [1 favorite]

Yeah, if you are salaried, you are getting more than most salaried employees if they are giving you an hour of leave for hours you work over 40 per week.

This assumes that you should actually be an exempt employee.
posted by Good Brain at 10:17 AM on January 16, 2009

I see. Ok, that makes sense. I guess I'll crawl back in my cave now. It would have surprised me if my company was breaking the law, but I still would like to get time-and-a-half. I'm pretty highly resistant on working any overtime unless it is absolutely required (and generally do not have to).
posted by nickerbocker at 10:19 AM on January 16, 2009

"Salaried" may not mean what you think it means. If you are doing managerial tasks, then you are likely not eligible for overtime; if you are doing non-managererial tasks, then you are likely eligible for overtime, meaning you have to get time and a half for hours worked over 8 hours a day. "Salaried" vs. "hourly" isn't really a determinative factor in whether or not you get overtime.
posted by jabberjaw at 10:54 AM on January 16, 2009

"Salaried" doesn't always equal "exempt." Do you have a limited amount of paid sick days/personal days? Is your pay docked when you exceed these limits? Then you are not truly exempt. Typically, salaried employees do not receive overtime pay, but on the other side of the equation, they do not get docked for days not worked or for showing up late at the office, etc. True salaried employees do not have to punch a time clock or fill out a time sheet. (I mention this because my comp-time employer told us that we were salaried, yet we had to fill out time cards, were docked if we were late X amount of times, and were not paid for sick days exceeded X limit. Translation: we were salaried in name only, not in practice.)
posted by Oriole Adams at 11:00 AM on January 16, 2009

Most of my friends and colleagues in professional jobs work like this. Work a few hours late, get a few hours extra vacation time at a later date. The only time it turns into a comic farce is if your company insists that you take the comp time in the same pay period as it was earned. This means you've been busting tail and working overtime because something needs to be accomplished and can't be done within your normal working hours, and they want you to take off at the same time.

Sadly, I don't get comp time or over time. I'm required to work the job, not the clock.
posted by teleri025 at 11:02 AM on January 16, 2009

An addendum: "Salaried" status (or job title) does not determine the exempt status of an employee. According to the Industrial Welfare Commission, the only workers that can be legally considered "exempt" are:

Licensed professionals. This includes doctors, lawyers, architects, engineers, and certified public accountants.

Managers who hire, fire, and train, and who spend less than 50 percent of their time performing the same duties as their employees.

Top administrators who create policies for a business.

Outside salespersons.
posted by Oriole Adams at 11:07 AM on January 16, 2009

I am exempt and do not meet any of Oriole Adams' conditions. I also have to fill out a time sheet (in 8 hour blocks--I have to document sick days and holidays and vacation time, but if I've done any work at all on a given day it counts as a full day) so the descriptions above aren't necessarily true. The easiest way to find out is to ask HR or your manager whether or not your position is exempt.
posted by Kimberly at 11:28 AM on January 16, 2009

Kimberly - There is a difference between being classified as exempt by your company and actually being in a legally defined exempt position. Most companies classify MANY employees as exempt even though they legally should be non-exempt in order to avoid paying overtime.

Nickerbocker - Step one is determine if you are exempt or non-exempt. You can look at your offer letter (or contract if you have one) or you can ask your HR or Payroll department.

Choices from there:

- You are classified as exempt: shut up and take the hours of vacation time because they don't have to do crap if you work overtime.

- You are classified as non-exempt: read the rules above, I'm not familiar with NM but I do know in CA (and other states) that comp time is illegal and you should be paid 1.5 time for any hours worked over 40 in a week (unless NM is also on a 8hr/day OT rules like in CA).

- You are classified as exempt but you really should be classified as exempt: this is where you can decide if you want to take it to a hire power, live with it, or just quit and seek employment elsewhere. You can always google for "employment lawyer" if you feel like suing (OT Claims are SUPER popular in CA right now). You can also report them to your state's labor board who, if they feel it is warranted, will do an audit of pay practices. Or, if you like your job otherwise and can live with this practice you can do nothing.
posted by magnetsphere at 11:52 AM on January 16, 2009

Yeah, that should say

"You are classified as exempt but really you should be classified as non-exempt"
posted by magnetsphere at 11:54 AM on January 16, 2009

Be careful in trusting your HR manager to define whether or not you are "exempt." They are not lawyers; they mostly not legally trained; and they work for people who want to save money by overworking you and then not paying you overtime.

There are legal guidelines for who is and isn't "exempt." Oriole Adams's guidelines may not be an exhaustive list, but if you don't meet Oriole Adams's guidelines, you may want to take a hard look at whether or not you are being misclassified.
posted by jabberjaw at 12:36 PM on January 16, 2009

Just read the law and decide for yourself. Then proceed from there.
posted by gjc at 7:26 PM on January 16, 2009

Just so I have this straight: the "comp time" is basically one hour paid, correct? So, for example, I could work four 10-hour weeks and then get a paid week of vacation, right? Then they pay you during that vacation as well. So you end up getting paid for 240 hours of work in exchange for actually working 200 hours, or time-and-20%. Not too bad if demanding actual time-and-a-half pay would rankle the supervisors.

That being said, if they are making you work considerably more than 40 hours per week on a regular basis, this is a problem. On a personal scale it means that you have less time to yourself and are being underpaid (unless they, I guess, inflated the salary to compensate). On a larger scale, every time a company extracts more than 40 hours of work out of a worker that is less work hours available to the workforce in generally. Even though unemployment is relatively low compared to some other countries, there is still a hidden unemployment crisis that I think might be the next "surprise" in our economic woes. Basically, there is too much work needed and not enough product to be bought or sold by that work. Our economy has been powered by overconsumption and that is not sustainable. Eventually consumption will have to scale back considerably and when it does, there will probably even be less work to go around. Kind of a bleak perspective and maybe not entirely accurate (who can really predict what will happen) but our population has been growing while the number of people actually required to make or do things has decreased (because productivity is pretty much always increasing). So resisting being worked overtime is not only good for yourself, but good for the economy as a whole.
posted by Deathalicious at 11:09 AM on January 18, 2009

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