By Mudassir Khan

Overtime vs comp time, explained

"Take time off later instead of overtime pay" sounds fair, and in government jobs it often is legal. In private jobs it almost never is. Here is the line the FLSA draws, and the caps and payout rules on the public side.

Rules verified November 2026 · Sources: U.S. Department of Labor

Quick answer

Private employers generally cannot substitute comp time for cash overtime owed to nonexempt workers, no matter what the employee prefers. Public agencies can, under FLSA section 207(o), crediting 1.5 hours of leave per overtime hour, capped at 240 hours for most workers and 480 for public safety and seasonal work, with unused time paid out at termination.

The private sector rule: cash only

The FLSA's comp time provision applies to public agencies, and there is no equivalent provision for private businesses. If you are a nonexempt worker at a private company and you work 10 overtime hours, your employer owes you 10 hours at time and a half in pay, not 15 hours of future time off. An employer cannot make the swap even with your signature on it: courts treat private sector comp time agreements as unenforceable because the statute does not permit them.

Two things people confuse with comp time are still fine in the private sector. First, an employer can adjust your schedule within the same workweek so your total stays at or under 40, because overtime is measured per workweek. Second, exempt employees are outside FLSA overtime entirely, so a company can offer salaried exempt staff comp days as a discretionary benefit. Neither of these is the prohibited practice of banking cash overtime as future leave.

The public sector exception: section 207(o)

Section 207(o) lets employees of a state, a political subdivision of a state, or an interstate governmental agency receive comp time instead of cash overtime. That covers city and county workers, public school district staff, transit agencies, and similar roles. Only nonexempt employees qualify for the statutory framework; exempt public employees sometimes get agency comp time as a benefit, but that sits outside the FLSA rules below.

Four conditions make the arrangement lawful:

  1. An agreement before the work. A collective bargaining agreement, memorandum, or individual agreement must be in place before the overtime is worked. Retroactive conversions do not count.
  2. The 1.5 accrual rate. Each overtime hour earns at least 1.5 hours of comp time. Four overtime hours bank six hours of leave, never four.
  3. Accrual caps. Balances cannot grow without limit: 240 hours for most public employees (about 160 overtime hours worked) and 480 hours for public safety, emergency response, and seasonal work (about 320 overtime hours worked). Past the cap, every further overtime hour must be paid in cash at time and a half.
  4. Payout on termination. Unused comp time is paid at the higher of the employee's average regular rate over the last three years or the final regular rate.

How the math works, step by step

Worked example 1: accrual at 1.5

A city employee earning $25 per hour works 48 hours in a week and banks comp time under a valid agreement.

  1. Overtime hours = 48 − 40 = 8
  2. Comp time earned = 8 × 1.5 = 12 hours
  3. The bank grows by 12 hours, worth 12 × $25 = $300 of paid leave

Cash overtime for the same week would have been 8 × $37.50 = $300. The economics match, which is exactly what the law intends.

Worked example 2: hitting the cap, then termination payout

A state office worker has already banked the 240 hour cap. She works 4 overtime hours at a $20 regular rate.

  1. No more accrual is allowed, so all 4 hours must be paid in cash
  2. Cash overtime = 4 × 1.5 × $20 = $120

Two years later she leaves with 300 banked hours. Her average regular rate over the last three years was $22 and her final rate was $24. Payout = 300 × $24 = $7,200, because the higher of the two rates applies. Banked comp time never expires under federal law.

Using and scheduling comp time

Employees must generally be allowed to use accrued comp time within a reasonable period after requesting it, unless using it would unduly disrupt agency operations. On the other side, the Supreme Court held in Christensen v. Harris County that a public employer may require employees to draw down their balances, which agencies often do to manage budget exposure. An employer may also choose to pay cash overtime in any given week instead of granting comp time; the statute does not force the agency to bank it.

A note on federal employees: most federal workers are covered by a different statute, 5 U.S.C. 5543, which allows comp time for overtime approved in advance, under its own rules. The 207(o) framework described here is for state and local government employees.

Not legal advice: comp time disputes often turn on whether a valid agreement existed before the work and whether the caps were tracked correctly. Payroll records and the agreement itself are the two documents that decide most cases.

Quick answers

Sources

Pay rules on this page follow DOL Fact Sheet 23: overtime pay requirements of the FLSA and FLSA section 207(o), with public sector regulations in 29 CFR part 553.

Can a private employer give me comp time instead of overtime pay?

No. The FLSA gives private employers no authority to substitute time off for overtime cash owed to nonexempt workers. An employee who worked 10 overtime hours is owed 10 hours at time and a half in pay, and even a signed voluntary agreement cannot make the swap legal.

Who can legally earn comp time?

Nonexempt employees of a state, a political subdivision of a state, or an interstate governmental agency, under FLSA section 207(o). That covers city and county workers, public school staff, transit agencies, and similar roles, with caps of 240 hours for most and 480 for public safety, emergency response, and seasonal work.

How much comp time do I earn per overtime hour?

At least 1.5 hours of paid time off for every overtime hour worked, the same premium as cash overtime. Four overtime hours earn six comp time hours, not four.

Does comp time expire?

No federal expiration exists. Banked comp time carries forward, and when you leave the job your employer must cash out the balance at the higher of your average regular rate over the last three years or your final regular rate.

Can my employer force me to use my comp time?

Yes. The Supreme Court held in Christensen v. Harris County that a public employer may require employees to use accrued comp time, while employees must be allowed to use it within a reasonable period after asking unless doing so would unduly disrupt operations.

Check your own pay

Value any banked balance with the overtime pay calculator, and read our FLSA overtime rules guide for the workweek basics that sit underneath every comp time calculation.

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