Chicago Loses Major Comp Time Case

A federal court of appeals has ruled against the Chicago Police Department in a long-simmering case concerning the ability of public employees to use compensatory time off. At the heart of the Chicago dispute is whether an employee has a right to request a particular day on which to use compensatory time off, or whether the employer may disregard the employee’s request and grant another day “reasonably proximate” to the day requested by the employee.

The Appeals Court pointed to a Department of Labor regulation interpreting the Fair Labor Standards Act as requiring an employer to “honor” an employee’s request for compensatory time off unless to do so would be “unduly disruptive” to the employer’s operation. The Court found that “the Secretary of Labor has determined that an employer must approve compensatory time off during the time requested by the employee unless that would impose an unreasonable burden on the employer’s ability to provide services of acceptable quality and quantity for the public. The Secretary added that inconvenience to an employer is an insufficient basis to deny a request.

“Chicago asks us to disregard this regulation as inconsistent with the statute, which the City deems clear. We find the statute anything but clear. Words such as ‘reasonable’ and ‘undue’ are open-ended. They need elaboration, and the relation between these requirements needs explication. Here, the agency has added vital details and its work prevails unless it represents an implausible resolution. There’s nothing unreasonable about the agency’s approach, which makes compensatory leave more attractive to workers and hence a more adequate substitute for money, the FLSA’s principal response to overtime work.”

The Appeals Court spelled out the procedure required by the FLSA: “A worker proposes a date and time for leave. The employer decides whether time off then would cause undue disruption, and if it would, the employer has a reasonable time to grant leave on some other date. In Chicago’s view, the employee cannot ask for a particular date or time, but only for some leave, and if any time off within a reasonable time after the request would cause undue disruption, then the employee must wait longer – must wait, by definition, for an unreasonable time. That can’t be right. Chicago’s view produces an implausible relation between the ‘reasonable time’ and ‘undue disruption’ clause. The regulation makes sense when specifying that the employer must ask whether leave on the date and time requested would produce undue disruption, and only if the answer is yes may the employer defer the leave – and then only for a reasonable time.’”

Heitmann v. City of Chicago, Illinois, 2009 WL 764155 (7th Cir. 2009).

This article appears in the May 2009 issue