Human Resource Blog

Vacation Pay or Overtime

In New York State can an employeer require an employee to use accrued vacation time instead of paying overtime? If the employee is required to occasionally work over 40 hours in a week.

This is not legal – and, it doesn’t make any sense. Why would an employee lose vacation time when they put in more than 40 hours per week?

Under both federal and New York law, employees are entitled to 1.5 times the usual hourly rate when working more than 40 hours in a payroll week.

New York employers can set any limits they like on the use of vacation time…but they cannot use vacation time to evade the federal and state overtime laws.

It’s possible that this employer is thinking of offering “comp time” instead of paying overtime. Under federal law, employees of non-profit organizations may legally be granted “comp time” instead of being paid overtime. “Comp time” is essentially paid time off that can be used at a later date. Employees must be given 1.5 hours of “comp time” for each hour of overtime worked.

Suzie might work 41 hours this week. Instead of being paid for 41 hours, she would be paid for 40 hours and have 1.5 hours of “comp time” — paid time off — that she can use at another time. Next week, if Suzie works 38.5 hours and uses her 1.5 hours of comp time, she is still paid for 40 hours.

“Comp time” is NOT legal for private employers such as businesses. And, even for non-profit organizations, “comp time” can only be used in place of overtime if the employee agrees. Any employee who would prefer to be paid overtime, must be paid.

However, under a “comp time”  system, the employee gains time off when working overtime – they don’t lose it.

Here’s a link to the FAQs on the New York Department of Labor website. (Or go to http://www.labor.state.ny.us/workerprotection/laborstandards/faq.shtm)

Both the federal and New York State Departments of Labor strictly enforce overtime laws.