MAIN	cases	docket	decisions	orders	briefs	rules	guides	calendar
No. 98-1167: Christensen v. Harris County

No. 98-1167

In the Supreme Court of the United States

EDWARD CHRISTENSEN, ET AL., PETITIONERS

v.

HARRIS COUNTY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE





SETH P. WAXMAN
Solicitor General
Counsel of Record
EDWIN S. KNEEDLER
Deputy Solicitor General
MATTHEW D. ROBERTS
Assistant to the Solicitor
General
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

HENRY L. SOLANO
Solicitor of Labor
ALLEN H. FELDMAN
Associate Solicitor
EDWARD D. SIEGER
Attorney
Department of Labor
Washington, D.C. 20210



QUESTION PRESENTED

Whether a public agency governed by the compensatory time provisions ofthe Fair Labor Standards Act of 1938, 29 U.S.C. 207(o), may, absent a preexistingagreement, require its employees to use accrued compensatory time.





In the Supreme Court of the United States

No. 98-1167
EDWARD CHRISTENSEN, ET AL., PETITIONERS

v.

HARRIS COUNTY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE


INTEREST OF THE UNITED STATES

This brief is submitted in response to the Court's order inviting the SolicitorGeneral to express the views of the United States.


STATEMENT

1. The Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. 201 et seq., generallyrequires covered employers to pay their employees a minimum wage and tocompensate overtime work at a rate of one and one-half times the employees'regular rate of pay. 29 U.S.C. 206, 207. Public agencies, including federalagencies and state and local governments, are subject to the FLSA. 29 U.S.C.203(d), (s)(1)(C) and (x). This Court has held that application of the FLSA'sminimum wage and overtime provisions to state and local governments is avalid exercise of Congress's power to regulate interstate commerce. SeeGarcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) (overrulingNational League of Cities v. Usery, 426 U.S. 833 (1976), which in turn hadoverruled Maryland v. Wirtz, 392 U.S. 183 (1968)).1
In 1985, in response to Garcia, Congress amended the FLSA to provide stateand local governments a temporary period of relief from liability and toaddress certain other public agency concerns. Fair Labor Standards Amendmentsof 1985, Pub. L. No. 99-150, §§ 2-7, 99 Stat. 787-791. One ofthe 1985 amendments (codified at 29 U.S.C. 207(o)) permits employees ofstate and local governments to receive, "in lieu of overtime compensation,compensatory time off at a rate not less than one and one-half hours foreach hour of employment for which overtime compensation is required."29 U.S.C. 207(o)(1). A public agency may provide compensatory time "only-
(A) pursuant to -
(i) applicable provisions of a collective bargaining agreement, memorandumof understanding, or any other agreement between the public agency and representativesof such employees; or
(ii) in the case of employees not covered by subclause (i), an agreementor understanding arrived at between the employer and employee before theperformance of the work; and
(B) if the employee has not accrued compensatory time in excess of the limitapplicable to the employee prescribed by paragraph (3).
29 U.S.C. 207(o)(2).2 The applicable limit is 480 hours of compensatorytime for "work in a public safety activity, an emergency response activity,or a seasonal activity," and 240 hours for any other work. 29 U.S.C.207(o)(3)(A). An employee who reaches the applicable limit "shall,for additional overtime hours of work, be paid overtime compensation."Ibid.
For all employees, payment for accrued compensatory time off must be "atthe regular rate earned by the employee at the time the employee receivessuch payment." 29 U.S.C. 207(o)(3)(B). An employee with accrued compensatorytime also has a right to be paid for it at specified rates on terminationof employment. 29 U.S.C. 207(o)(4). An employee who requests to use accruedcompensatory time "shall be permitted by the employee's employer touse such time within a reasonable period after making the request if theuse of the compensatory time does not unduly disrupt the operations of thepublic agency." 29 U.S.C. 207(o)(5).
2. The 1985 amendments direct the Secretary of Labor to "promulgatesuch regulations as may be required to implement [the] amendments."Section 6, 99 Stat. 790 (29 U.S.C. 203 note). Pursuant to that directive,the Department of Labor promulgated 29 C.F.R. Pt. 553. Among other things,those regulations provide that an agreement or understanding regarding paymentof compensatory time may include "provisions governing the preservation,use, or cashing out of compensatory time so long as these provisions areconsistent with section [207(o)]." 29 C.F.R. 553.23(a)(2). Inconsistentprovisions are "superseded" by the statute. Ibid.
When employees do not have a recognized representative, a state or localgovernment's agreement or understanding with an individual employee may"take the form of an express condition of employment," providedthat the employee knowingly and voluntarily agrees to the condition andis informed "that the compensatory time received may be preserved,used or cashed out consistent with the provisions of section [207(o)]."29 C.F.R. 553.23(c)(1).3
3. In Moreau v. Klevenhagen, 508 U.S. 22, 35 (1993), this Court held thatrespondent Harris County is governed by 29 U.S.C. 207(o)(2)(A)(ii), theprovision requiring agreements or understandings with individual employees,rather than 29 U.S.C. 207(o)(2)(A)(i), the provision requiring an agreementwith the employees' representative. The County has reached agreements thatprovide for the granting of compensatory time off to its employees. Pet.App. 29a-31a; Moreau, 508 U.S. at 29. The County's Sheriff's Departmenthas a policy under which each employee's accrued compensatory time is keptbelow a level determined by each bureau commander. Pet. App. 29a. When anemployee appears to have accumulated hours approaching the maximum allowedby the FLSA, the employee is asked to take steps voluntarily to reduce hisor her accumulated hours. Id. at 30a. If the employee does not do so, theemployee's supervisor may order him or her to do so. Ibid. The Sheriff'sDepartment attempts to arrange a mutually agreeable time for the employeeto use the hours, but if an agreement cannot be reached, the supervisormay order the employee to use the hours at a time that will best serve thepersonnel requirements of the bureau. Ibid. An employee dissatisfied withthe supervisor's order may complain on an informal basis to a supervisorat a higher level in the Department. Ibid.; see also id. at 4a, 25a.
4. a. Petitioners are deputy sheriffs who have not yet accumulated 240 hoursof compensatory time, the lower limit permitted by 29 U.S.C. 207(o)(3)(A).Pet. 4; Pet. App. 25a. In April 1994, they brought a class action againstrespondents Harris County and its sheriff, alleging that respondents violatedSection 207(o) of the FLSA by refusing to allow petitioners to use theiraccumulated compensatory time when they requested it, forcing them to useit when they did not request it, and retaliating against them. Pet. 4-5;see Pet. App. 3a. The parties stipulated to the facts, discussed above,concerning the County's policy. Pet. App. 4a, 29a-31a.
b. In November 1996, the district court granted summary judgment to petitioners.Pet. App. 24a-27a. Following Heaton v. Moore, 43 F.3d 1176 (8th Cir. 1994),cert. denied, 515 U.S. 1104 (1995), the court concluded that, under Section207(o), compensatory "time off must be consumable by the worker onthe worker's terms." Pet. App. 25a. The court reasoned that a publicemployer may control an employee's use of compensatory time only when anemployee's requested use of that time would disrupt the employer's operations,and it found no suggestion in this case of any disruption of the County'soperations. Id. at 26a-27a.
In July 1997, the district court entered what it termed its "FinalJudgment." Pet. App. 28a. That judgment stated that the County "maynot force employees to use their accumulated compensatory time without violatingthe Fair Labor Standards Act," and it awarded attorney's fees to petitioners.Ibid. Petitioners did not ask the district court to rule on their claimsbased on the County's alleged refusal of permission to use compensatorytime when requested and its alleged retaliation, and the court did not doso. Id. at 5a.
5. a. The court of appeals reversed. Pet. App. 1a-23a. The court first concludedthat it had jurisdiction because the district court had decided all claimsthat petitioners had not abandoned. Id. at 5a-6a.4 Turning to the merits,the court held that the County could require its employees to use theircompensatory time sooner than they preferred. Id. at 6a-13a.
The court rejected petitioners' argument that the FLSA confers on employeesan unrestricted right to use accumulated compensatory time, subject onlyto the limitation in 29 U.S.C. 207(o)(5) that the use of such time not undulydisrupt the operations of the public agency. Pet. App. 8a. That provisionis inapplicable, the court reasoned, because it is triggered only when anemployee first requests to use compensatory time. Id. at 8a-9a. The courtalso reasoned that 29 U.S.C. 207(o)(3)(B), which recognizes a public employer'sability to pay down accrued compensatory time, reflects a "Congressionalintent to permit public employers to control the accrual of comp time."Pet. App. 9a. Against this background, the court concluded that Congressdid not consider the question whether an employer could require employeesto use compensatory time. Id. at 10a. Because the court found it impossibleto determine how Congress would have legislated on that question, the Courtdecided to "devis[e] [its] own solution." Ibid.
The solution devised by the court of appeals was that, absent an agreementto the contrary, an employer may require its employees to use accrued compensatorytime against their will. See Pet. App. 10a-13a. The court believed thatits "default rule" was appropriate because it reflected "thegeneral principle that the employer can set workplace rules in the absenceof a negotiated agreement to the contrary." Id. at 13a.
The court of appeals recognized that the Eighth Circuit in Heaton had reacheda different conclusion, but it rejected Heaton's reasoning as "flawed."Pet. App. 10a. The court observed that it could nevertheless follow Heatonon prudential grounds, or to avoid an intercircuit conflict. Id. at 11a.The court chose not to do so, however, because it believed Heaton was intension with the Fifth Circuit's own prior decision in Local 889, AFSCMEv. Louisiana, 145 F.3d 280 (1998), which held that a public employer mayrequire employees to use compensatory time before using accrued leave.5Pet. App. 11a. The court did not consider the lack of uniformity with Heatonto be "a substantial concern" because state and local governmentsand their employees could contract for a different result under 29 C.F.R.553.23(a), which permits agreements concerning compensatory time so longas they do not contradict the FLSA. Pet. App. 11a-12a. Because the partiesin this case had not identified any such agreement, the court applied the"background rule" that it believed it had an "obligation""to fashion." Id. at 12a. Applying that rule, the court enteredjudgment for respondents. Id. at 14a.
b. Judge Dennis dissented. Pet. App. 14a-23a. He agreed with the majoritythat the statute does not answer the question presented, but concluded thatthe Department of Labor's regulations do and are entitled to deference.Id. at 14a-19a. In the dissent's view, the regulations do not give controlover the use of accrued compensatory time to either the employee or theemployer but instead allow the parties to reach an agreement on the preservation,use, or cashing out of compensatory time, so long as any such agreementis consistent with Section 207(o). Id. at 18a. Absent an agreement, JudgeDennis concluded, an employer may not require an employee involuntarilyto use accrued compensatory time. Ibid.
Judge Dennis observed that agreements between respondent Harris County andindividual employees providing for compensatory time in lieu of monetaryovertime apparently exist, Pet. App. 20a (citing Moreau, 508 U.S. at 29),and he would have taken judicial notice of their apparent existence. Ibid.Because the agreements are not in the record, however, he would have remandedto allow the district court to consider whether the agreements contain provisionsthat permit respondents to require petitioners to use accrued compensatorytime, and, if so, whether those provisions are consistent with Section 207(o).Ibid.

DISCUSSION

The petition for a writ of certiorari should be granted. The decision ofthe court of appeals is incorrect. This Court's review is warranted becausethe decision conflicts with Heaton v. Moore, 43 F.3d 1176 (8th Cir. 1994),cert. denied, 515 U.S. 1104 (1995), and the question presented is an importantone.

1. Although the court of appeals correctly observed that 29 U.S.C. 207(o)does not explicitly address whether a public employer may force its employeesto use accrued compensatory time (Pet. App. 10a), the court erred in concludingthat it could therefore "fashion" its own "background"or "default" rule (id. at 12a) without regard to the text andpurpose of Section 207(o) and the Secretary of Labor's implementing regulationsand interpretative guidance. Those guideposts for statutory interpretationestablish that a public employer may not direct its employees to use accruedcompensatory time absent an agreement that authorizes it to do so.6
Section 207(o) is "an exception to the general FLSA rule mandatingovertime pay for overtime work"-an exception under which a public employerand its employees may agree that the employees will receive compensatorytime off "in lieu of overtime compensation," 29 U.S.C. 207(o)(1).See Moreau v. Klevenhagen, 508 U.S. 22, 34 n.16 (1993). As the Departmentof Labor has explained, an employee's accrued compensatory time therefore"belongs to the employee" and is generally under the employee'scontrol, just as an employee's overtime wages must be paid unconditionallyor "free and clear," 29 C.F.R. 531.35. See 60 Fed. Reg. 2180,2206-2207 (1995) (discussing relationship of compensatory time to leaveunder the Family and Medical Leave Act, 29 U.S.C. 2601 et seq.). Just asan employee "would have the right to spend the employee's cash overtimepay when and as the employee chose, so the employee should be allowed tospend the banked compensatory time as the employee chooses," Heaton,43 F.3d at 1180, absent a lawful agreement to the contrary or undue disruptionof the employer's operations, see 29 U.S.C. 207(o)(5); 29 C.F.R. 553.23,553.25; note 6, supra.
The Department of Labor accordingly has construed Section 207(o) not toauthorize a public employer, in the absence of an agreement, unilaterallyto require an employee to use accrued compensatory time. See Opinion letterfrom Wage & Hour Div., Dep't of Labor (Sept. 14, 1992), available in1992 WL 845100 (Absent an agreement, "neither the statute nor the regulationspermit an employer to require an employee to use accrued compensatory time.");see also Br. of Sec'y of Labor as Amicus Curiae at 6-11, Local 889, AFSCMEv. Louisiana, 145 F.3d 280 (5th Cir. 1988) (employer may not require employeeto use compensatory time rather than annual leave because, absent undueburden on the employer, the employee may control use of accrued compensatorytime). That interpretation of Section 207(o) of the FLSA is reasonable andtherefore entitled to deference. See Auer v. Robbins, 519 U.S. 452, 457,462 (1997).
The terms of Section 207(o) reflect the general principle that the employeecontrols the use of his or her accrued compensatory time, absent an agreementto the contrary. Section 207(o) identifies only one circumstance in whichan employer may unilaterally control an employee's use of accrued compensatorytime-when the employee has requested use of accrued time and that use would"unduly disrupt" the employer's operations. 29 U.S.C. 207(o)(5).If Congress had intended that the employer could impose other limitationson the use of compensatory time, it presumably would have so provided. SeeRussello v. United States, 464 U.S. 16, 23 (1983). Here, however, the courtof appeals held that an employer not only may narrow the range of circumstancesin which an employee may use accrued compensatory time, but also may affirmativelyrequire the employee to use compensatory time even if the employee wouldprefer not to do so. Reading into Section 207(o) such additional employerrights unilaterally to control the preservation and use of compensatorytime would be inconsistent with the function of compensatory time as substitutecompensation and would impermissibly "enlarge[] by implication"the exception provided by Section 207(o). Citicorp Indus. Credit, Inc. v.Brock, 483 U.S. 27, 35 (1987). See Moreau, 508 U.S. at 33 (applying to Section207(o) the "well-established rule that 'exemptions from the [FLSA]are to be narrowly construed'").7
Furthermore, "employers may take advantage of the benefits [that Section207(o)] offers 'only' pursuant to certain conditions set forth by Congress."Moreau, 508 U.S. at 34 n.16 (quoting 29 U.S.C. 207(o)(2)). One of thoseconditions is that an employer may substitute compensatory time for paidovertime "only" pursuant to "an agreement or understandingarrived at between the employer and employee." 29 U.S.C. 207(o)(2)(A)(ii).Department of Labor regulations provide that the agreement or understandingmay include "provisions governing the preservation, use, or cashingout of compensatory time so long as these provisions are consistent with[Section 207(o)]." 29 C.F.R. 553.23(a)(2). See also H.R. Rep. No. 331,99th Cong., 1st Sess. 20 (1985) ("The agreement or understanding mayinclude other provisions governing the preservation, use, or cashing outof compensatory time so long as those provisions are consistent with [Section207(o)] and the remainder of the Act."); S. Rep. No. 159, 99th Cong.,1st Sess. 11 (1985) (same). As the Department of Labor explained in itsSeptember 14, 1992, Opinion letter (see p. 11, supra), an employer's unilateralimposition of conditions on the use of compensatory time would be inconsistentwith the statutory requirement that compensatory time be provided "only"pursuant to an "agreement or understanding," terms that requirea meeting of minds or mutual assent, see Black's Law Dictionary 62, 1369(5th ed. 1979).8
Allowing an employer to force employees to use accrued compensatory timewithout an agreement on that issue would also undermine the requirementthat an agreement or understanding concerning compensatory time be reached"before the performance of the work." 29 U.S.C. 207(o)(2)(A)(ii).An employer who could unilaterally impose or alter the conditions underwhich employees may use accrued compensatory time would have little incentiveto agree to terms concerning its preservation or use before work is performed.Instead, the employer's incentive would be to wait until an employee hadalready performed the work and accepted compensatory time instead of overtimepay and then to impose conditions that might be objectionable to the employee.9
Finally, reading Section 207(o) to allow employers unilaterally to directtheir employees when to use compensatory time would eliminate much of the"freedom and flexibility enjoyed by public employees" (as wellas by their employers) that Congress intended to preserve in the 1985 amendmentsby authorizing compensatory time arrangements. See H.R. Rep. No. 331, supra,at 19-20. See also Fair Labor Standards Amendments of 1985: Hearings onS. 1570 Before the Subcomm. on Labor of the Senate Comm. on Labor &Human Resources, 99th Cong., 1st Sess. 17, 96, 109-110, 275, 311, 321, 374-375,492-493, 520, 573 (1985); Hearing on the Fair Labor Standards Act Beforethe Subcomm. on Labor Standards of the House Comm. on Educ. & Labor,99th Cong., 1st Sess. 4, 71, 160, 205, 224-225 (1985) (describing how compensatorytime arrangements allow employees to take extended vacations, get away fromjob stresses when necessary, and deal with family or personal matters).By allowing employers to direct the use of accrued compensatory time, thedecision of the court of appeals could prevent employees, without theirconsent, from accruing amounts of compensatory time sufficient for suchpurposes as an extended vacation, serious surgery, or caring for young childrenor elderly parents.10

2. This Court's review is warranted to resolve a conflict between, on theone hand, the decision of the court of appeals in this case and a recentdecision of the Ninth Circuit to the same effect, Collins v. Lobdell, No.98-35655, 1999 WL 639131 (Aug. 24, 1999), and, on the other hand, the EighthCircuit's decision in Heaton. In Heaton, the Eighth Circuit held that apublic employer may not unilaterally control an employee's use of accruedcompensatory time unless an employee's requested use of compensatory timewould unduly disrupt the employer's operations. 43 F.3d at 1180.11 Here,the Fifth Circuit expressly disagreed with Heaton, Pet. App. 10a-11a, andheld that a public employer may require employees to use accrued compensatorytime unless the parties expressly agree to the contrary. Id. at 11a-13a;accord Collins v. Lobdell, supra.
Whether a public employer may force employees to use accrued compensatorytime absent an agreement on the issue is an important question. As the courtof appeals recognized in this case, public employers have an incentive tolimit the accrual of compensatory time to avoid paying cash overtime, buttheir employees often want to accumulate compensatory time, either to reachthe statutory maximum (at which point they would have to receive overtimepay for any overtime work) or to have the time available for later use.Pet. App. 8a. Public employers therefore may often attempt to require employeesto use compensatory time without an agreement. Indeed, they have done soon a number of occasions. See Pet. App. 29a-30a; Heaton v. Moore, supra;Collins v. Lobdell, supra; Rogers v. City of Virginia Beach, No. 98-2253,1999 WL 498707 (4th Cir. July 15, 1999); Hellmers v. Town of Vestal, 969F. Supp. 837, 846-847 (N.D.N.Y. 1997); David J. Walsh, The FLSA Comp TimeControversy: Fostering Flexibility or Diminishing Worker Rights?, 20 BerkeleyJ. Emp. & Lab. L. 74, 111-113 (1999); cf. Banks v. City of Springfield,959 F. Supp. 972, 979-980 (C.D. Ill. 1997) (rejecting allegation of forceduse of compensatory time).12
Contrary to the belief of the court of appeals (Pet. App. 11a-12a), theconflict between its decision and Heaton is "a substantial concern"even though the court of appeals would allow an employee to obtain the employer'sagreement that it will not force the employee to use compensatory time.Ibid. Possible agreements on compensatory time that may be entered intoin the future cannot mitigate the impact of the Fifth Circuit's decisionin this case and the Ninth Circuit's decision in Collins v. Lobdell on publicemployees who have accrued compensatory time but do not currently have agreementsprohibiting forced use of that time. Employees governed by the Heaton rulehave a remedy under the FLSA for forced-use policies that are or have beenapplied, but those governed by the decisions in this case and Collins v.Lobdell do not.
Moreover, employees who are subject to the decisions in this case and Collinsv. Lobdell and who do not have a recognized representative have little leverageto displace the background rule fashioned by the court. They must negotiateindividual agreements or understandings, 29 U.S.C. 207(o)(2)(A)(ii), andthose agreements "may take the form of an express condition of employment"imposed by the employer. See 29 C.F.R. 553.23(c)(1); S. Rep. No. 159, supra,at 11; H.R. Rep. No. 331, supra, at 20. Although an employee's acceptanceof such terms and conditions must be voluntary and uncoerced, 29 C.F.R.553.23(c)(1), in practice an employee who needs a job will likely assentto what the employer is willing to offer. See also ibid. (the agreementor understanding "may be evidenced by a notice to the employee thatcompensatory time off will be given in lieu of overtime pay"); 29 U.S.C.207(o)(2) (for employees hired before April 15, 1986, "the regularpractice in effect on April 15, 1986, with respect to compensatory timeoff for such employees in lieu of the receipt of overtime compensation,shall constitute an agreement or understanding"). Approximately 57%of employees subject to Section 207(o) do not have a recognized collectivebargaining representative. See David J. Walsh, supra, 20 Berkeley J. Emp.& Lab. L. at 124. Thus, the Fifth Circuit's rule will likely resultin large numbers of employees accepting restrictions on when and how theymay use accrued compensatory time, whether they like those restrictionsor not.13

CONCLUSION

The petition for a writ of certiorari should be granted.
Respectfully submitted.




SETH P. WAXMAN
Solicitor General
EDWIN S. KNEEDLER
Deputy Solicitor General
MATTHEW D. ROBERTS
Assistant to the Solicitor General

HENRY L. SOLANO
Solicitor of Labor
ALLEN H. FELDMAN
Associate Solicitor
EDWARD D. SIEGER
Attorney
Department of Labor


SEPTEMBER 1999


1 In Seminole Tribe v. Florida, 517 U.S. 44 (1996), this Court held thatCongress lacks the power under Article I of the Constitution to abrogatea State's sovereign immunity from suit in federal court. In Alden v. Maine,119 S. Ct. 2240 (1999), the Court held that sovereign immunity also protectsa State from FLSA suits for money damages by private parties in state courts.State sovereign immunity, however, "does not extend to suits prosecutedagainst a municipal corporation or other governmental entity which is notan arm of the State." Alden, 119 S. Ct. at 2267. Respondent HarrisCounty has not argued that it is immune from suit in this case.

2 For employees subject to Section 207(o)(2)(A)(ii) who were hired beforeApril 15, 1986, "the regular practice in effect on April 15, 1986,with respect to compensatory time off for such employees in lieu of thereceipt of overtime compensation, shall constitute an agreement or understanding."29 U.S.C. 207(o)(2).

3 For employees hired before April 15, 1986, the "regular practice"that the statute permits to serve as an agreement must also conform to theprovisions of Section 207(o). 29 C.F.R. 553.23(c)(2).

4 The parties have not questioned the court of appeals' conclusion thatpetitioners abandoned the claims on which the district court did not rule.See also Br. in Opp. 2 (endorsing that conclusion). The ruling of the courtof appeals that it had jurisdiction if the district court intended its judgmentto dispose of all remaining claims is consistent with the views of othercourts of appeals. See, e.g., Baltimore Orioles, Inc. v. Major League BaseballPlayers Ass'n, 805 F.2d 663, 666-667 (7th Cir. 1986), cert. denied, 480U.S. 941 (1987); General Time Corp. v. Padua Alarm Sys., Inc., 199 F.2d351, 358 (2d Cir. 1952), cert. denied, 345 U.S. 917 (1953); 15A CharlesAlan Wright et al., Federal Practice and Procedure § 3914.7, at 547& n.14 (2d ed. 1992).

5 Local 889 reasoned, contrary to Heaton, that 29 U.S.C. 207(o) createsno right in accrued compensatory time. See Pet. App. 10a; Local 889, 145F.3d at 285. Local 889 distinguished Heaton, however, on the ground thatthe State in Local 889, unlike the employer in Heaton, did not force employeesto take time off, but rather only required the use of compensatory timeonce an employee had requested leave. See Local 889, 145 F.3d at 285.

6 This case does not present the question whether a public employer andits employees may agree to give the employer some control over when theemployees use their compensatory time, a question on which there is no conflictamong the courts of appeals. The Department of Labor has taken the positionthat such agreements are permissible provided they are consistent with Section207(o). See 29 C.F.R. 553.23(a)(2) (agreements may include provisions governingthe "preservation, use, or cashing out" of compensatory time solong as they are consistent with Section 207(o)); 6A Wage & Hour Man.(BNA) 99:5212, 99:5213-99:5214 (July 29, 1988); Opinion letter from Wage& Hour Div., Dep't of Labor (Sept. 14, 1992), available in 1992 WL 845100;Opinion letter from Wage & Hour Div., Dep't of Labor (Apr. 4, 1994),available in 1994 WL 1004765; but see Br. of Sec'y of Labor as Amicus Curiaeat 13 n. 7, Local 889, AFSCME v. Louisiana, 145 F.3d 280 (5th Cir. 1998)(although the issue was not presented, expressing the view that such agreementswould not be lawful, albeit without mentioning the contrary position takenby the Secretary in the regulation and opinion letters cited above).
Agreements inconsistent with Section 207(o) would violate the well-establishedprinciple that FLSA rights may not be waived. See, e.g., Barrentine v. Arkansas-BestFreight Sys., Inc., 450 U.S. 728, 740 (1981). An agreement to cede controlover the use of compensatory time would be consistent with Section 207(o)if the agreement promoted the employer's flexibility to offer compensatorytime in lieu of overtime pay (e.g., by requiring an employee to use accruedcompensatory time as he or she approached the statutory maximum), and, atthe same time, preserved for the employee a sufficiently broad range ofchoices for using compensatory time that it retained its essential attributesas a form of compensation that substitutes for overtime pay. See 29 C.F.R.553.20 (Section 207(o) "provides an element of flexibility to stateand local government employers and an element of choice to their employees* * * regarding compensation for statutory overtime hours."); p. 11,infra (discussing function of compensatory time as a substitute for wages);p. 15, infra (explaining congressional intent that compensatory time agreementspromote employee "freedom and flexibility").

7 As the court of appeals noted (Pet. App. 9a), 29 U.S.C. 207(o)(3)(B),which provides that payment for accrued compensatory time must be "atthe regular rate earned by the employee at the time the employee receivessuch payment," rests on the assumption that an employer may pay downaccrued compensatory time. See 29 C.F.R. 553.27(a). That provision doesnot, however, as the court of appeals mistakenly believed (Pet. App. 9a),"reflect[] Congressional intent to permit public employers to controlthe accrual of comp time" as a general matter. Rather, it establishesonly that employers may do what the FLSA requires them to do apart fromSection 207(o)-pay for overtime work at one and one-half times the employee'sregular rate of pay. There is no suggestion in Section 207(o) that an employermay reduce accrued time without paying for it.

8 The statutory requirement that compensatory time be granted only pursuantto an agreement supersedes the background principle that an employer maygenerally set workplace rules, the primary ground on which the court ofappeals relied to justify its default rule, see Pet. App. 13a.

9 Allowing employers unilaterally to require employees to use accrued compensatorytime would also be in tension with the second major condition that Congressimposed on an employer's invocation of Section 207(o): An employer may providecompensatory time rather than overtime pay "only * * * if the employeehas not accrued compensatory time in excess of the [statutory] limit."29 U.S.C. 207(o)(2)(B). An employee who has accrued compensatory time offequal to the statutory maximum "shall, for additional overtime hoursof work, be paid overtime compensation." 29 U.S.C. 207(o)(3)(A). Thatrequirement would have little force if employers could prevent employeesfrom reaching the maximum by unilaterally requiring them to use their accruedtime.

10 Respondents suggest (Br. in Opp. 5-6, 9) that the practice at issue hereis lawful because, by forcing an employee to use his or her compensatorytime, the County is, in essence, simply shortening the employee's work weekand cashing out the employee's accrued compensatory time. The unilateralcombination of work-week shortening and compensatory-time cash-out describedby respondents is not permitted by the FLSA, however, because it is a manipulationof work schedules designed to circumvent the requirement in Section 207(o)that compensatory time be governed by a preexisting agreement. This Courthas held that attempts to evade the FLSA's overtime requirements by elevatingform over substance are impermissible. See, e.g., Walling v. HarnischfegerCorp., 325 U.S. 427, 430-431 (1945) (overtime pay must be based on a regularrate that takes into account incentive pay); Walling v. Youngerman-ReynoldsHardwood Co., 325 U.S. 419, 424 (1945) (overtime pay must be based on aregular rate that takes into account payments resulting from guaranteedpiece rates); Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 39-41(1944) ("split-day plan" under which daily work hours are classifiedas either "regular" or "overtime" in order to perpetuatethe pre-statutory wage scale violates FLSA). See also 29 C.F.R. Pt. 778,Subpt. F (Pay Plans Which Circumvent the Act); 29 C.F.R. 553.224 (stateor local government cannot change the length and starting time of work periodsin order to evade the FLSA's overtime requirements); 6A Wage & HourMan. (BNA) 99:5254 (Feb. 15, 1991) (although employer may use compensatorytime provisions in conjunction with a time-off plan within a biweekly payperiod, it may not pay a fixed salary for such fluctuating hours); H.R.Rep. No. 331, supra, at 22 ("The Committee expects good faith complianceby public employers and would direct the Secretary of Labor to enforce theseamendments so as to prevent * * * attempts to evade Congressional intent.").

11 The Eighth Circuit took no position on whether the parties may agreeto "limit the time and manner of the employees' use of compensatorytime." 43 F.3d at 1180 n.4.

12 Because the agreements on compensatory time between petitioners and respondentHarris County are not in the record, we do not know if any of those agreementsspecifically allows respondents to control any employee's use of compensatorytime. See Pet. App. 12a. We assume that respondents would have informedthe Court if any of the agreements contained such a provision. See Sup.Ct. R. 15.2. Of course, as described above, agreements giving respondentscontrol over an employee's use of compensatory time would be permissibleonly if the cession of control to the employer is sufficiently circumscribedthat it is consistent with Section 207(o). See 29 C.F.R. 553.23(a)(2); note6, supra.

13 Even employees who have a collective bargaining representative (as inCollins v. Lobdell) are likely to be adversely affected by the court's rule,because they may have to make concessions to the employer on other issuessubject to collective bargaining in order to obtain the employer's agreementnot to require them to use compensatory time against their will.