This is the third and final article of three that will focus on the Fair Labor Standards Act (FLSA) and the requirements of employers. The first article focused on what employers and employees are required to comply with in accordance with the regulations of the FLSA and the second article focused on the specific exemption classifications and how to determine if employees are either exempt from overtime laws. This article will further clarify section 3(s)(1)(C) of the FLSA with regards to how all public agency employees of a State, a political subdivision of a State, or an interstate government agency must comply with the payment of overtime for employees who are engaged in fire and police department activities.
Application of the FLSA to Fire Protection and Law Enforcement – Section 3(s)(1)(C) of the FLSA covers all public agency employees of a State, a political subdivision of a State, or an interstate government agency. However, as stated earlier, there are also specific exemptions from the overtime requirements of the FLSA for those employers who have employees of police and fire departments with fewer than five employees. For those public agencies who have fewer than five employees in a police or fire department, all employees may be exempt from overtime laws in accordance with the FLSA. Meaning that they may be paid on a salaried basis and do not have to paid overtime at the rate of time and one-half for all hours worked over 40 in a workweek. However, for those public agencies who have five or greater employees in their fire and police departments, they must pay them on a nonexempt basis in accordance with the following:
- Fire protection employees include firefighters, paramedics, emergency medical technicians, rescue workers, ambulance personnel, or hazardous materials workers who:
- are trained in fire suppression;
- have the legal authority and responsibility to engage in fire suppression;
- are employed by a fire department of a municipality, county, fire district, or State; and
- are engaged in the prevention, control and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.
- Law enforcement are employees who are empowered by State or local ordinance to enforce laws designed to maintain peace and order, protect life and property, and to prevent and detect crimes; who have the power to arrest; and who have undergone training in law enforcement. Employees engaged in law enforcement activities may perform some nonexempt work which is not performed as an incident to or in conjunction with their law enforcement activities. However, a person who spends more than 20-percent of the workweek or applicable work period in nonexempt activities is not considered to be an employee engaged in law enforcement activities under the FLSA.
Section 7(k) of the FLSA provides that employees engaged in fire protection or law enforcement may be paid overtime on a “work period” basis. A “work period” may be from seven consecutive days to 28 consecutive days in length. For work periods of at least 28 days, overtime pay is required when the number of hours worked exceeds the number of hours that bears the same relationship to 212 (fire) or 171 (police) as the number of days in the work period bears to 28. For example, fire protection employees are due overtime under such plan after 106-hours worked during a 14-day work period, while law enforcement employees must receive overtime after 86-hours worked during a 14-day work period.
Employees of a State or local government agency may receive “compensatory” time, at a rate of not less than one and one-half hours for each overtime hour worked, in lieu of cash overtime compensation. Employees engaged in fire and police protection work may accrue up to 480-hours of “compensatory” time in accordance with the FLSA. However, individual State or local government agencies may also limit the amount of “compensatory” time that an employee may accrue in accordance with their own policies. The FLSA only states that the amount should not exceed 480-hours, which represents 320-hours of actual overtime hours worked. Employers must also note that the employee must be permitted to use “compensatory” time on the date requested unless doing so would “unduly disrupt” the operations of the agency. At the time of termination an employee must be paid the higher of (1) his or her final regular rate of pay, or (2) the average regular rate during his or her last three-years of employment for any “compensatory” time remaining on the books when termination occurs. The FLSA also allows “compensatory” time for employees who are not engaged in fire and police activities, however, it is strongly recommended that an employer contact their legal counsel, or an HR professional for additional information and guidelines as related to the regulation.
For additional information on the payment of overtime laws with regards to fire and police department employees as outlined in the FLSA, please contact us at www.newfocushr.com or refer to the Department of Labor – Wage and Hour Division website at www.dol.gov/whd .
Written by: Kristen Deutsch, M.B.A., CCP
President
12/12/18
