- The Washington Times - Tuesday, May 2, 2000

Police and firefighters who are forced to accept compensatory time off instead of overtime pay must use that comp time when the boss dictates instead of banking it for cash later, the Supreme Court ruled yesterday.

The 6-3 decision written by Justice Clarence Thomas in a Houston case will have "significant impact" nationwide on local and state government workers who do not have agreements on overtime practices, said Thomas A. Woodley, general counsel of the International Association of Fire Fighters.

"This is troublesome," he said. "It's pretty widespread in the public sector. In the private sector, employers must pay cash for overtime work."

The court rejected Clinton administration support for the 127 Harris County deputies who contended Sheriff Tommy B. Thomas could not tell them when to use comp time.

"This view is exactly backwards," said the court, which found the Fair Labor Standards Act (FLSA) did not prohibit the widely used practice.

"Finding that nothing in the FLSA or its implementing regulations prohibits an employer from compelling the use of compensatory time, we affirm," Justice Thomas wrote. Joining him in the judgment were Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and David H. Souter.

That was contradicted by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer in a dissent that said the majority didn't recognize the basic right all employees have to receive time-and-a-half pay for more than 40 hours of work in a week, and to determine how and when they spend it.

"As I read the statute, the employer has no right to impose compensatory-overtime payment upon its employees except in accordance with the terms of the agreement authorizing its use," Justice Stevens wrote.

The battle was over a section of the FLSA exempting governments from the requirement to pay cash overtime and allowing them to compensate workers with 1.5 hours of comp time for each hour over 40 worked in a week. Public-safety workers may accumulate up to 480 hours, after which overtime must be paid in cash.

The law said governments must let workers use comp time within a "reasonable period" after they ask, but did not forbid employers from requiring it be used.

"[It] simply does not prohibit an employer from telling an employee to take the benefits of compensatory time by scheduling time off work with full pay," the court said, noting the absence of Labor Department regulations to the contrary.

"It's incumbent upon the Labor Department now to address this issue in a way that's protective of employees," Mr. Woodley said yesterday.

In other actions yesterday, the justices:

• Left unchanged the State Department designation of the People's Mojahedin Organization of Iran as a "foreign terrorist organization" despite ties to supporters and members in the United States whose rights are diminished by the label.

The group opposes the current Tehran government and mounted attacks on its embassies, but the Justice Department said it also participated in the 1979 takeover of the U.S. Embassy in Tehran and killed U.S. citizens.

• Overturned four of Scott Carmell's 15 convictions for sexually assaulting his stepdaughter beginning in 1991 when she was 12 until she was 15.

The 5-4 decision with Justices Stevens, Scalia, Souter, Thomas and Breyer voting to overturn the 20-year sentence and Justice Ginsburg in the minority with Justices Rehnquist, O'Connor and Kennedy said Texas improperly admitted testimony under an "ex post facto" law passed after the crimes were committed. The ruling did not affect Carmell's two life sentences for aggravated sexual assault in the same case.

• Accepted for hearing in the fall an Illinois appeal to clarify when police may keep a person from re-entering his home alone while officers obtain a search warrant.

The case involves a conviction in which the evidence was marijuana, which the defendant admits he would have destroyed had he been allowed into his home. His wife told police about the drugs when they escorted her after a domestic dispute.

• Left standing a New York state court ruling that Prodigy and other Internet-service providers are not liable when someone is defamed in e-mail communications or bulletin-board messages from a subscriber to their service.

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