§ 201 et seq., forbids a public employer from requiring its employees to use their accumulated compensatory time, absent a pre-existing agreement authorizing compelled use.

Harris County wrote to the Wage and Hour Division of the United States Department of Labor for advice on the merits of their policy as a legal matter in regard to the FLSA.

However, the U.S. Court of Appeals for the Fifth Circuit reversed the District Court's decision, explaining that the FLSA did not address the particular issue raised in the county's policy regarding the compelled use of compensatory time and, as a result, held that the FLSA does not prohibit Harris County from implementing such a policy.

In regards to the substantive issue, the Court holds: Section 207(o)(5) of the FLSA does not prohibit employers from requiring employees to utilize their accrued compensatory time.

[1][2] In Section II of the opinion, J. Thomas addresses the Petitioners' statutory interpretation argument, that employers are statutorily prohibited under 207(o)(5) from requiring employees to utilize accrued compensatory time.

[4] J Thomas states that Petitioner's argument of implicit prohibition relies on the canon of expressio unius est exclusio alterius.

Implying that the Court accepts the expressio unius canon of interpretation, J. Thomas cites to Raleigh & Gaston R. CO. v. Reid, decided in 1872, and states that the Court accepts the proposition that "[w]hen a statute limits a thing to be done in a particular mode, it includes a negative of any other mode.

"[8] J. Thomas concludes that the proper implied prohibition is: in the absence of an agreement, an employer may not deny an employee's request for a reason other than "undue disruption."

The Court explained an opinion letter does not carry the same effect as a formal adjudication or notice-and-comment rule which would receive "Chevron" deference.

of Labor's opinion letter was insufficient to trigger "Chevron" deference, however, there he believed there was other information available to warrant application of the standard:

Applying this rationale, Justice Thomas held that the Department of Labor's opinion letter are not persuasive and, as such, do not warrant a Skidmore deference.

In particular, Justice Thomas pointed out that the regulation only provides that the "agreement between the employer or employee may include other provisions governing the preservation, use....of compensatory time."

Focusing on "may", Justice Thomas concluded that since the regulation was written in a "permissive" tone and not a commanding term, the opinion letter's command that the employer must gain the employee's approval before mandating that employee's use their compensatory time is not persuasive and as such is not afforded a Skidmore deference.

Because their consent is a condition without which the employer cannot qualify for the exception from the general rule, it seems clear to me that their agreement must encompass the way in which the compensatory time may be used.

[...] The Court concludes that expressio unius does not help petitioners because the "thing to be done" as prescribed by the statute (and because of which all other "things" are excluded) is simply a guarantee that employees will be allowed to make some use of compensatory time upon request, rather than an open-ended promise that employees will be able to choose (subject only to the "reasonable time" limitation) how to spend it.