Dolley Law, LLC

Law Enforcement Overtime Law

Over the years, special exemptions have been carved out for law enforcement personnel. These exemptions takes two distinct forms: (1) for those public agencies that employ five or fewer employees in a work week and (2) for all other public agencies that employ more than five employees in a work week.

Section 13(b)(20) of the FLSA provides that agencies that employ five or fewer law enforcement employees are entirely exempt from the overtime requirements of the FLSA.

However, for public agencies that employ more than five law enforcement officers, the partial overtime exception found in section 7(k) of the FLSA applies. 7(k) allows employers to measure the maximum hours of work at a standard rate on a 7-28 day work period rather than the traditional seven day work week. This means that, instead of having to pay overtime for all hours worked beyond the first 40 in a seven day work week, public agencies only have to pay time and one-half overtime for those hours worked beyond 171 in a 28 day work period. If the agency chooses to make their work periods shorter than the 28 days provided in the FLSA, public agencies are entitled to use the same ratio of hours per day (171 to 28 or 7.57 hours per day) for any work period length. For example, if a public agency employs its law enforcement officers on a 14 day work period, any time worked exceeding 86 hours in a period of 14 days must be paid time and one-half.

Due to the unique nature of the work that law enforcement officials engage in, several distinct overtime issues exist within the industry. Circumstances may arise where a law enforcement officer who is on a special task force must work extended hours to accomplish the task. In such circumstances, to be able to recover for unpaid overtime, an employer must have actual or constructive knowledge that work beyond the maximum hours is being performed. Bailey v. County of Georgetown, 994 F.3d 152 (4th Cir. 1996). The Fifth Circuit also has found that a superior officer’s general knowledge that extended work may be being performed is insufficient to create constructive notice that the overtime work is being performed. Newton v. City of Henderson, Texas, 47 F.3d 746 (5th Cir. 1995). Therefore, to ensure rights under the FLSA, it is advisable that officers report all hours worked in the official recording system for the public agency.

Another issue that arises in the law enforcement field is how to view on call hours. If an officer is expected to respond to emergency calls that come in over a radio that remains on at all times while at home, any time spent responding to the calls is compensable work time. Bartoszewski v. Village of Fox Lak, 647 N.D.2d 591 (Ill. App. 2d Dist. 1995).

Likewise, roll calls and briefings that exceed 7 minutes are considered compensable work time. See Athanas v. City of Lake Forest, Illinois, 657 N.E.2d 1031 (1995); Barefield v. Village of Winnetka, 81 F.3d 707 (7th Cir. 1997); Adair v. City of Kirkland, Wa., 175 F.3d 707 (9th Cir. 1999). A public agency’s failure to compensate law enforcement officers for this time may result in liability under the FLSA.