LABOR ‑- EMPLOYERS AND EMPLOYEES ‑- COMPENSATING TIME IN LIEU OF OVERTIME
Under RCW 49.46.130(1) an employer is not required to grant all employee requests for compensating time off in lieu of overtime pay; if, however, an employer denies any such requests it will then be obligated to pay for the overtime involved on a time and one‑half basis as required by the statute; the "time and one‑half" requirement of RCW 49.46.130(1), however, only pertains to overtime pay itself and not, in addition, to comp time requested by an employee and granted by an employer in its discretion instead.
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September 22, 1976
Honorable Leonard Nord
Director, Department of Personnel
P.O. Box 1789
Olympia, Washington 98504 Cite as: AGLO 1976 No. 58
By recent letter you have directed our attention to the provisions of RCW 49.46.130(1), codifying a portion of § 3, chapter 289, Laws of 1975, 1st Ex. Sess., and reading as follows:
"(1) No employer shall employ any of his employees for a work week longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one‑half times the regular rate at which he is employed, except that the provisions of this subsection (1) shall not apply to any person exempted pursuant to RCW 49.46.010(5) as now or hereafter amended and the provisions of this subsection shall not apply to employees who request compensating time off in lieu of overtime pay nor to any individual employed as a seaman whether or not the seaman is employed on a vessel other than an American vessel." (Emphasis supplied.)
In view, particularly, of the above underscored portion of this statute you have then asked for our opinion on the following questions:
"(1) Is an employer required to grant all employee requests for compensating time off in lieu of overtime pay? . . .
"(2) If the employer may deny such requests and does so, is the employer obligated to offer any compensation for overtime?
"(3) If the employer and employee, at the employee's request, agree to utilize compensating time in lieu of overtime pay, must the compensating time be one and one‑half hours times the number of hours worked in excess of 40 hours per week?
[[Orig. Op. Page 2]]
"(4) Can the Personnel Board adopt rules which set policies for State agencies regarding compensating time off in lieu of overtime pay?"
We answer questions (1) and (3) in the negative, question (2) in the affirmative and question (4) in the manner set forth in our analysis.
Clearly, there is nothing in RCW 49.46.130(1), supra, which purports to require a given employer (whether a state agency or otherwise) to grant a request for compensating time off in lieu of overtime pay. The obligation of an employer, under the statute, is simply to compensate its employees for their overtime (as defined therein) ". . . at a rate not less than one and one‑half times the regular rate . . ." at which they are employed unless (insofar as your immediate inquiry is concerned) the employees involved request compensating time off instead. Thus, in the absence of some form of contractual obligation to the contrary in a given case (i.e., as distinguished from a statutory obligation) the employer may deny any such request for "comp time" in lieu of overtime.
Literally read, RCW 49.46.130(1) would seem to say that a mere request for compensating time in lieu of overtime is sufficient to cut off an employee's qualified right, under that statute, to overtime pay. The statute should, however, not be read so literally as to produce such an absurd result. Wilson v. Lund, 74 Wn.2d 945, 447 P.2d 718 (1968). Instead, in order to effect the apparent purpose behind its enactment we believe that it should be read as if it said ". . . who requests and is granted compensating time off . . ." Therefore, we answer your second question in the affirmative. If the employer may deny a request for compensating time in lieu of overtime pay, and does so, the employer will then be obligated to pay for the overtime work involved on a time and one‑half basis as required by the statute.
Your third question, repeated for ease of reference, is as follows:
"(3) If the employer and employee, at the employee's request, agree to utilize compensating time in lieu of overtime pay, must [[Orig. Op. Page 3]] the compensating time be one and one‑half hours times the number of hours worked in excess of 40 hours per week?"
We answer this question in the negative. The "time and one‑half" requirement of RCW 49.46.130(1), supra, only pertains to overtime pay itself and not, in addition, to compensating time requested by an employee and granted by an employer at its discretion, instead.
Your final question involves the authority of the state personnel board to promulgate a rule or regulation regarding the matter of compensating time off in lieu of overtime pay for state employees.
Under RCW 41.06.150 the personnel board has the authority to adopt rules and regulations covering a number of subjects, including hours of work and compensation plans, with regard to state employees in the classified service under its jurisdiction.1/ We assume that your question only pertains to the relationship between those employees and their state agency employers. We do not, however, at this time have before us the actual text of any specific draft rule or regulation.
Of course, as you will readily understand, the legal authority of the personnel board to adopt a given rule or regulation covering this or any other subject will depend, in each case, upon the actual terms of the proposal involved. Moreover, it would seem to us entirely possible, in the instant case, that the language and scope of any proposed new regulation governing compensating time off in lieu of overtime might well depend upon our above stated answers to your first three questions. Therefore, while we will, of course, now be happy to provide such assistance as you desire in the preparation of whatever rules or regulations the personnel board determines to adopt in the light of this opinion, we will refrain from passing upon the authority of the board to adopt a particular rule until and unless a specific proposal has thus been drafted and submitted to us for review.
[[Orig. Op. Page 4]]
We trust that you will understand and that the foregoing opinion regarding the meaning of RCW 49.46.130 will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/See, RCW 41.06.040 and 41.06.070 with respect to the scope of the classified service and an identification of those employment positions which are excluded therefrom.