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Religious comp time. Ever heard of it? Neither had I, and I’m supposed to know about this stuff as a labor and employment law professor. You won’t read about it under the Fair Labor Standards Act (FLSA) or its federal employment analogue, Title V, 5 U.S.C. 5542, the federal laws that provide overtime premium payments for employees who work more than 40 hours in any workweek. Nor is it part of any additional “comp time” provisions, which permit public employees in certain instances to trade in earned overtime for time off. Indeed, I would have never heard of religious comp time if it were not for an Oct. 12 article in the Washington Post describing abuses in this program. According to the article, a number of federal employees have accumulated vast amounts of unused religious comp time, which they cashed in upon retirement. One top government drug regulator received $18,733 in his final paycheck on top of his normal salary. The article concerned itself with abuses of this program by some employees who were using religious comp time to play golf and go on vacation. But my question is more critical: Can such a federal employment program survive scrutiny under the establishment clause of the U.S. Constitution? First, some details about this program. Congress established it as Title IV of the Federal Employees Flexible and Compressed Work Schedules Act of 1978. The regulations make clear that it is in no way connected to the premium pay provisions for overtime work for employees under the FLSA or Title V. Rather, it applies to all federal employees and provides them with time off for religious observances. More specifically, federal employees “whose personal religious beliefs require the abstention from work during certain periods of time may elect to engage in overtime work for time lost for meeting those religious requirements,” and “the employee may work such compensatory overtime before or after the grant of compensatory time off.” Advanced religious comp time must be repaid by the appropriate amount of additional work within a reasonable amount of time. Involvement of the federal government in individual religious observances brings us directly to the free exercise and establishment clauses of the First Amendment of the U.S. Constitution, two of the most fought-over clauses in all of constitutional law. The meaning of the establishment clause has been debated to death by constitutional scholars who know far more about it than a mere labor and employment law guy, and I in no way seek to bring an end to those larger controversies in this op-ed. Nevertheless, a unanimous U.S. Supreme Court recognized in the 2005 case of Cutter v. Wilkinson that, although government may accommodate religious practices without violating the establishment clause, at some point such accommodation devolves into unlawful fostering of religion. I believe that point has been reached here, and the religious comp time program for federal employees goes beyond the limits of permissible government accommodation. One need only look at Cutter itself to see why this religious comp time program is distinguishable from a permissible religious accommodation. Cutter held that Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 did not offend the establishment clause when it sought to provide accommodation for the religious practices of prison inmates beyond what the free exercise clause requires. The court came to this conclusion because the act alleviated an “exceptional government-created burden . . . on private religious exercise” in the prison context. Nothing close to such a burden exists in the religious comp time context. Indeed, religious federal employees may still engage in private religious exercise by taking their annual leave time for religious purposes or, if nonexempt under the FLSA, by using normal comp time for those purposes. It strains credulity to believe that federal employees would be under an “exceptional government-created burden” on their ability to worship as they saw fit if religious comp time did not exist. Moreover, the fact that it appears from the Post article that a number of federal employees are banking an exceptional amount of unused religious comp time and then cashing in at retirement suggests that religion observance would not be burdened significantly without the existence of such comp time. In short, federal employment alone does not place a special burden on religious practice, and there is no need for a legislative accommodation here. Religious federal employees still may use their annual leave time or other types of comp time to partake in religious observances. The religious comp time program should be challenged and found unconstitutional under the establishment clause as an unlawful governmental fostering of religion. Paul M. Secunda is a law professor at the University of Mississippi School of Law and an editor of the Workplace Prof Blog.

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