Overtime Pay to Law Enforcement and Fire Protection Employees of Public Agencies
The Law Offices of Kevin J. Dolley has handled a wide variety of wage and hour issues related to employees of public agencies, such as law enforcement officers, dispatchers, and first responders. Our attorneys know the special wage and hour rules that apply to many employees of public agencies and the common types of issues that arise in those employment settings. We can advise you regarding what these rules are, how these rules differ from the normal wage and hour rules of the FLSA, and how such differences matter and impact the day-to-day operations of a public agency or department.
Overtime Pay: “Workweek” vs. “Work Period”
Under the FLSA, employers generally must calculate and pay overtime on a week-by-week basis. To do so, an employer must establish a “workweek” that is a fixed, regularly occurring period of 168 hours—that is, seven consecutive days or 24-hour periods. See 29 C.F.R. § 778.105 (noting the workweek “need not coincide with the calendar week but may begin on any day and at any hour of the day”).
However, certain employees of public agencies—that is, employees engaged in fire protection or law enforcement activities—may be paid on a “work period” basis, as opposed to a “workweek” basis. See 29 U.S.C. § 207(k). A “work period” may range from 7 consecutive days to 28 consecutive days in length. See 29 C.F.R. § 553.224. Like a “workweek,” once a “work period” is established by an employer, it remains fixed. Id.; 29 C.F.R. § 778.105.
FLSA regulations clarify that different overtime hour requirements apply to fire protection employees, on the one hand, and law enforcement employees, on the other. Further, the exact overtime hour requirements or thresholds will vary depending upon the length of the work period established. See generally 29 C.F.R. § 553.230.
FLSA regulations provide that, for work periods of 28 days, overtime must be paid to law enforcement employees for all hours worked in excess of 171 hours during the work period. See 29 C.F.R. §§ 553.201(a), 553.230(b). Similarly, for work periods of 28 days, overtime must be paid to fire protection employees for all hours worked in excess of 212 during the work period. See 29 C.F.R. §§ 553.201(a), 553.230(a). And, for work periods of at least 7 but less than 28 days, overtime pay is required when the number of hours worked during the work period exceeds the number of hours that bears the same relationship to 212 (for fire protection employees) or 171 (for law enforcement employees) as the number of days in the work period bears to 28. See 29 C.F.R. §§ 553.230(a)-(b).
The FLSA regulation itself sets forth a chart that provides further guidance on the maximum hour standards for work periods of specific lengths between 7 and 28 days. See id. These maximum hour requirements translate roughly to 7.57 hours per day (for fire protection employees) and 6.11 hours per day (for law enforcement employees). 29 C.F.R. § 553.230(c).
Who are employees engaged in “law enforcement activities”?
FLSA regulations provide further guidance on the types of employees who engage in “law enforcement activities.” See 29 C.F.R. § 553.211. The regulation states, in relevant part, that this phrase refers to any employee who meets the following three conditions:
- who is a uniformed or plainclothed member of a body of officers and subordinates who are empowered by State statute or local ordinance to enforce laws designed to maintain public peace and order and to protect both life and property from accidental or willful injury, and to prevent and detect crimes;
- who has the power to arrest; and
- who is presently undergoing or has undergone or will undergo on-the-job training and/or a course of instruction and study which typically includes physical training, self-defense, firearm proficiency, criminal and civil law principles, investigative and law enforcement techniques, community relations, medical aid and ethics.
29 C.F.R. § 553.211(a). The regulation further provides that employees who satisfy these three conditions are engaged in law enforcement activities regardless of their rank, training status, or assignment to duties incidental to performance of law enforcement activities. 29 C.F.R. § 553.211(b). Moreover, the regulation acknowledges “rescue and ambulance service personnel” would be considered employees performing “law enforcement activities” if “such personnel form an integral part of the public agency’s law enforcement activities.” Id.
In light of these descriptions, the regulation gives a series of examples of employees “typically…engaged in law enforcement activities.” See 29 C.F.R. § 553.211(c). These employees include: city police, district or local police, sheriffs, under sheriffs or deputy sheriffs who are regularly employed and paid as such, court marshals or deputy marshals, constables and deputy constables who are regularly employed and paid as such, border control agents, state troopers and highway patrol officers. Id. In addition, the regulation specifies that employees engaged in “law enforcement activities” include “security personnel in correctional institutions” and provides further clarification about what this phrase means. See 29 C.F.R. § 553.211(f). Other employees may also qualify, depending on the facts and circumstances of a case, such as fish and game wardens, criminal investigative agents assigned to a district attorney’s office, an attorney general, solicitor general or any other law enforcement agency concerned with keeping peace and order and protecting life and property. Id. at § 553.211(c).
The regulation also provides examples of employees who are not normally considered “engaged in law enforcement activities.” See 29 C.F.R. § 553.211(d)-(e). These employees include certain sheriffs who are elected officials and not subject to civil service laws of their particular state or jurisdiction, building inspectors, health inspectors, animal control personnel, sanitarians, civil traffic employees, civilian parking checkers, wage and hour compliance officers, EEOC compliance officers, tax compliance officers, coal mining inspectors, and building guards. Id. They also include “so-called ‘civilian’ employees of law enforcement agencies or correctional institutions who engage in such support activities as those performed by dispatcher, radio operators, apparatus and equipment maintenance and repair workers, janitors, clerks and stenographers,” as well as “employees in correctional institutions who engage in building repair and maintenance, culinary services, teaching, or in psychological, medical and paramedical services.” Id. at § 553.211(g).
Who are employees engaged in “fire protection activities”?
FLSA regulations also define the class of employees who engage in “fire protection activities.” See 29 C.F.R. § 553.210. The regulation states, in relevant part, that this phrase includes “a firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazardous materials worker who (1) is trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department of a municipality, county, fire district, or state; and (2) is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.” See 29 C.F.R. § 553.210(a). However, the regulation adds that these employees do not include “so-called ‘civilian’ employees of a fire department, fire district, or forestry service who engage in support activities as those performed by dispatchers, alarm operators, apparatus and equipment repair and maintenance workers, camp cooks, clerks, stenographers, etc.” Id. at § 553.210(b).
The issue of compensable work time is largely governed by the same FLSA principles that govern other employees. See 29 C.F.R. § 553.221(a). However, there are several unique terms of art and other special rules that apply to employees engaged in law enforcement and fire protection activities. Id. One unique term used in these regulations is “tour of duty.” See 29 C.F.R. § 553.220. “Tour of duty” means “the period of time during which an employee is considered to be on duty for purposes of determining compensable hours,” including scheduled and unscheduled periods of time, such as time spent in court, completing an assignment after a shift, or handling an emergency situation. Id. These regulations also contain special rules for, among other things, determining the compensability of sleep time, meal time, training time, and early relief from duty. See 29 C.F.R. §§ 553.222, 553.223, 553.225, 553.226.
Compensatory Time Off as Overtime Pay
FLSA regulations authorize employers to pay law enforcement and fire protection employees overtime by granting them compensatory time off at the overtime rate (i.e., at the rate of not less than one and one-half hours of compensatory time for each hour of overtime work). See 29 C.F.R. §§ 553.20 - 553.28, 553.231. However, the FLSA and its regulations set limits on the amount of compensatory time off that may be accrued at this overtime rate. See 29 U.S.C. § 207(o)(3)(A); 29 C.F.R. §§ 553.21, 553.22. Further, the regulations speak to limits on the use of such compensatory time off, as well as several other rules related thereto. See, e.g., 29 C.F.R. §§ 553.25 - 553.28, 553.232.
Overtime Exemption for Law Enforcement and Fire Protection Employees
The FLSA also contains an overtime exemption for law enforcement and fire protection employees of a public agency (including security personnel in correctional institutions) where the public agency employs less than five (5) employees in law enforcement or fire protection activities during the workweeks in question. See 29 U.S.C. § 213(b)(20).
The network of wage and hour laws and regulations applicable to employees in law enforcement and fire protection can be complicated. If you have any questions or concerns regarding pay practices or other wage and hour related issues of public agencies with respect to employees engaged in fire protection or law enforcement activities, contact the Law Offices of Kevin J. Dolley by phone at (314) 645-4100 or by email at email@example.com.