This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

PUBLIC OFFICERS AND EMPLOYEES -- Compensation (overtime pay and compensatory time off) -- Overtime (compensatory time off - effect of Fair Labor Standards Act)

GENERAL MUNICIPAL LAW, §90; 29 USC §201 et seq.: With respect to the provision of overtime compensation outside the context of collective bargaining, if overtime provisions of the federal Fair Labor Standards Act (FLSA) are applicable to particular municipal employees, they are entitled to overtime compensation as provided in the FLSA regardless of whether the municipality has acted to implement an overtime compensation program as provided in section 90 of the General Municipal Law. Compensatory time off in lieu of monetary compensation may only be provided to these employees under the circumstances specified in the FLSA, and at no lesser rate than specified in the FLSA. If the FLSA is not applicable to particular municipal employees, the municipality may provide either monetary compensation or compensatory time off pursuant to a pre-existing plan established pursuant to section 90 of the General Municipal Law. 1984 Opns St Comp No. 84-13, p 15 and other prior opinions superseded to the extent inconsistent.

You ask whether employees who are required to work hours beyond the normal work week may receive compensatory time off in the absence of a written overtime policy of the village board. You have advised us that the village employees in question are not members of a collective bargaining unit.

Both New York State law (General Municipal Law, §90; Civil Service Law, §200 et seq.) and the federal Fair Labor Standards Act (29 USC §201, et seq.) contain statutory provisions pertinent to overtime for municipal officers and employees. Although prior to 1985 it was settled that the Fair Labor Standards Act (FLSA) did not apply to state and local governments (National League of Cities v Usery, 426 US 833, 96 S Ct 2465, 49 L Ed2d 245 [1976]), the U.S. Supreme Court, in Garcia v San Antonio MTA, 469 US 528, 105 S Ct 1005, 83 L Ed2d 1016, reversed its earlier decision in National League of Cities, supra and held that the FLSA applies generally to state and local governments. Therefore, because of the doctrine of federal pre-emption (U.S. Const., art. VI, cl 2; see, gen., 16 Am Jur 2d, Constitutional Law, §291, et seq.), New York State law in this area is applicable only to the extent not inconsistent with the FLSA.

As to New York State law, we note initially that collective bargaining between public employers and public employees is authorized by article 14 of the Civil Service Law (§200 et seq.). It is well-established that, pursuant to this authority, an item may be included in a collective bargaining agreement, whether or not it involves a "term or condition of employment" subject to mandatory bargaining unless there is a plain and clear prohibition against such inclusion in the State or Federal Constitution, a statute, decisional law or restrictive public policy (Board of Education v Yonkers Federation of Teachers, 40 NY2d 268, 386 NYS2d 657; Board of Education v Associated Teachers of Huntington, Inc., 30 NY2d 122, 331 NYS2d 17; City of Newburgh v Potter, 142 Misc 2d 346, 537 NYS2d 472). The term "terms and conditions of employment", which includes hours of employment and rates of compensation, encompasses contractual provisions pertaining to overtime (Civil Service Law, §201[4]; Spring Valley PBA v Village of Spring Valley, 80 AD2d 910, 437 NYS2d 400; 10 PERB 3043, 3056). In this instance, however, since the employees are not represented by an employee organization, article 14 is not applicable.

Under New York law, even when compensation for overtime is not provided through collective bargaining, it may be provided under General Municipal Law, §90. That statute authorizes the governing board of each municipal corporation, by ordinance, local law, resolution, order or rule, to provide for the payment of overtime compensation to any or all public officers and employees, except elective officers and those officers otherwise excluded by law, for all time such officers and employees are required to work in excess of their regularly established hours of employment. Under section 90, overtime may be at the basic pay rate or such other rate as the governing board may authorize.

This Office has previously expressed the opinion that section 90 does not limit a municipality to providing monetary compensation for overtime work, but that the authority to fix "compensation" for overtime work at any rate implies that the governing body may determine to provide for compensatory time credit in lieu of monetary compensation for overtime (1980 Opns St Comp No. 80-375 unreported; 18 Opns St Comp, 1962, p 246; see also General Municipal Law, §92[1]). It is well-established under New York law, however, that a local government may provide neither monetary compensation nor compensatory time off for overtime in the absence of a pre-existing overtime plan (Murray v Levitt, 47 AD2d 267, 366 NYS2d 674, mot for lv to app den 37 NY2d 707, 375 NYS2d 1026; Dow v Board of Trustees, 75 AD2d 632, 427 NYS2d 298; Shames v Regan, 132 AD2d 743, 517 NYS2d 103; see also 1989 Opns St Comp No. 89-1, p 1; 1985 Opns St Comp No. 85-18, p 23).

As noted, because of the Supreme Court's decision in Garcia, supra, the principles of New York State law summarized above will apply only to the extent not inconsistent with federal law. In this regard, we note that the FLSA, as amended, establishes minimum requirements for certain employees who are subject to that Act both for payment of overtime and for compensatory time off for a workweek longer than that prescribed in the federal statute (29 USCS §207[a],[o]).

Under the FLSA, a local government may provide compensatory time off in lieu of overtime compensation only pursuant to a collective bargaining agreement or similar type of agreement between the government and representatives of its employees or, with respect to employees not subject to a collective bargaining agreement or the like, an agreement or understanding arrived at between the employer and employee before the performance of the work (29 USCS §207[o][2]). In the absence of either type of agreement to provide compensatory time off for overtime, the employee must receive monetary compensation for the overtime (29 USCS §207[a],[o][2]; see also 29 CFR 553.20, 553.23[a][1]). Therefore, to the extent that section 90 of the General Municipal Law authorizes overtime compensation at a lesser rate than provided for in the FLSA, or the substitution of compensatory time in lieu of cash absent an agreement as required by the FLSA, it has been preempted by federal law.

There are, however, limitations on the scope and application of the overtime compensation provisions of the FLSA as applied to local officers and employees. For example, individuals who are not subject to state or local civil service law and who are elected public officials (29 USCS §203[e][1][c][ii][I]) and certain staff members of such officials (29 USCS §203[e][1][c][ii], [II]-[V]) are not subject to the overtime compensation provisions of this Federal law (cf. 29 USCS §213 regarding exemptions from the applicability of the FLSA). In addition, the FLSA establishes maximum amounts of compensatory time off that may be accumulated (29 USCS §207[o][a][3]). We suggest, therefore, that you contact the U.S. Department of Labor, which administers the FLSA, to determine whether the FLSA is applicable to the employees in question and, if so, the precise impact of the FLSA on the village's proposal.

Based on the foregoing, it is our opinion that if the overtime provisions of the FLSA are applicable to the employees in question, they are entitled to overtime compensation as provided in the FLSA regardless of whether the village has acted to implement an overtime compensation program as provided in section 90 of the General Municipal Law. Compensatory time off in lieu of monetary compensation may only be provided to these employees under the circumstances specified in the FLSA and at no lesser rate than specified in the FLSA. If the village employees are not subject to these requirements of the FLSA, however, the village may provide either monetary overtime compensation or compensatory time off, but only pursuant to a pre-existing plan established pursuant to section 90 of the General Municipal Law.

1984 Opns St Comp No. 84-13, p 15 and other prior opinions are hereby superseded to the extent inconsistent herewith.

April 10, 1990
Deanna Weiss, Village Clerk
Village of Atlantic Beach