## Facts

- Congress amended the Fair Labor Standards Act (FLSA) in 1985 to allow public employers, in limited circumstances, to provide compensatory time off (comp time) instead of cash overtime.
- Under 29 U.S.C. § 207(o)(2)(A), a public employer may provide comp time pursuant to (i) an agreement with employees’ representatives, or (ii) if employees are not covered by (i), an agreement with the individual employee made before the work is performed.
- Harris County deputy sheriffs worked under individual employment agreements incorporating county regulations providing comp time for overtime work.
- The deputies designated a union as their representative and attempted to negotiate a comp-time agreement through that representative, but no agreement was reached.
- Texas law prohibited public-sector collective bargaining, limiting any union representative’s ability to enter an enforceable agreement with the County regarding comp time.
- The deputies sued, arguing that their designation of a representative placed them within § 207(o)(2)(A)(i), thereby barring the County from relying on individual agreements under § 207(o)(2)(A)(ii).
- The district court granted summary judgment for the County, and the Fifth Circuit affirmed.

## Issues

1. Whether public employees who designate a representative in a state that bars public-sector collective bargaining are “employees not covered by subclause (i)” under 29 U.S.C. § 207(o)(2)(A)(ii).
2. Whether, in those circumstances, a public employer may lawfully provide comp time pursuant to individual agreements rather than an agreement with the employees’ representative.
3. How Department of Labor guidance and regulations regarding “designated representatives” should be read in relation to § 207(o)(2)(A) and state law.

## Decision

- The Supreme Court affirmed the Fifth Circuit’s judgment for the County.
- The Court held that the deputies were “employees not covered by subclause (i)” because their designated representative lacked legal authority under state law to enter an enforceable comp-time agreement.
- Because subclause (i) agreements were unavailable as a legal matter, § 207(o)(2)(A)(ii) authorized the County to use individual comp-time agreements.

## Legal Principles

- “Employees … covered by subclause (i)” under § 207(o)(2)(A) are those whose representative has authority under state or local law to negotiate and enter a binding agreement with the public employer regarding comp time.
- Subclause (ii) functions as a fallback permitting individual pre-work agreements when a valid representative agreement under subclause (i) cannot be made.
- Department of Labor regulations addressing agreements with a “designated representative” must be construed consistently with the statute and the role of state or local law in determining whether a representative has the authority to make an agreement.
- A reading of § 207(o)(2)(A) that would categorically eliminate comp time in jurisdictions that bar public-sector collective bargaining is disfavored when the statute’s structure indicates Congress intended comp time to remain available to public employers.

## Conclusion

The Court held that where state law prevents a designated representative from entering an enforceable comp-time agreement, the employees are not “covered by” § 207(o)(2)(A)(i), and the public employer may provide compensatory time pursuant to individual agreements under § 207(o)(2)(A)(ii).


Moreau v. Klevenhagen, 508 U.S. 22 (1993)