The FLSA provides that any individual employed in any capacity by a public agency may agree to substitute, during scheduled work hours, for another employee. Rule 29 U.S.C. § 207(p)(3) and 29 C.F.R. § 553.31(a) provides that employees may work substitution schedules where the substitution is:
- Voluntarily undertaken and agreed to solely by the employees, and
- Approved by the employer.
The traded time is not considered by the public agency in calculating the hours for which the employee is entitled to overtime compensation. 29 C.F.R. § 553.31(a). In effect, even though a substitution is made, “each employee will be considered to have worked his/her normal schedule.” 29 U.S.C. § 207(p)(3). In addition, “the employer of the employee who performs such substitution work is not required to keep a record of the hours of substituted work.” 29 U.S.C. § 211(c); 29 C.F.R. § 553.31(c).