Most law enforcement officers don’t get too concerned with the nuts and bolts of the Fair Labor Standards Act (FLSA), preferring to rely on the provisions of their labor contract. But understanding how the federal labor law impacts public safety agencies is critical for police schedulers.
The Fair Labor Standards Act (FLSA) can be found under Title 29 of the United States Code, with the portions relating specifically to public employees in Subtitle B, Chapter V, Subchapter A, Part 553.
The FLSA contains some specific provisions for public safety employees because they often work non-traditional schedules that can complicate calculation of overtime pay.
Most employees – public and private – are entitled to overtime pay at the rate of 1.5X their hourly rate after working 40 hours over a seven-day period. The pay period for public safety employees can be as long as 28 days under the FLSA, although most public employers use some multiple of seven days, typically 14.
Law enforcement employees have an overtime “threshold” under the FLSA of 43 hours when a seven-day pay period is used, 86 hours for a 14-day pay period, and 171 hours for a 28-day pay period. This includes all employees with traditional law enforcement duties who have arrest and law enforcement powers and have completed a special course of training (police academy). This does include jailers who may not be sworn, but does not include clerks, dispatchers, and other non-sworn employees.
Not all sworn police employees are subject to these overtime rules. If an employee is classified as “exempt,” they are typically salaried and not eligible for overtime. Most of these are management/executive level employees. Police management employees generally fight to remain non-exempt so that they are eligible for overtime pay, but once a position has been classified as exempt, it’s difficult to get it re-classified to hourly.
To be considered an exempt employee, the employee must be paid at least $23,600 per year and perform mainly management/executive duties. They must regularly supervise at least two other employees, have management as their primary duty, and have genuine job input (hiring, firing, promotion, or assignment) into the jobs of others.
Overtime compensation does not have to be paid in cash or wages. A law enforcement agency can require employees to be compensated with compensatory (“comp”) time at the same 1.5X rate for every hour or fraction of an hour worked. The agency can also place a cap on the maximum number of comp time hours an employee may accrue, up to 480 hours.
Police employers can’t place a “use it or lose it” requirement on comp time, which will cause the employee to forfeit the accrued time if it is not used by a deadline. They may require an employee to use the comp time by taking time off, or they can pay out the equivalent comp time accruals in cash.
Complaints to the U.S. Dept. of Labor about comp time uses and requirements are common. The typical rulings require both employees and employers to give reasonable notices about either a planned use of comp time or a requirement that it be used, and that the employer must honor an employee’s request to use comp time unless it creates a genuine operational concern for the employer.
Staffing level exemptions
There is another provision that can make public safety overtime compensation exempt from the FLSA provisions altogether. Under the “Section 13(b)(20)” provision of the FLSA, if the public safety agency employs fewer than five employees during the workweek, the FLSA public safety provisions do not apply. Police and fire employees have to be considered separately, e.g., a city that had five police officers but only four firefighters during a workweek would be subject to FLSA provisions for the cops, but not for the firefighters.
This situation can change from one workweek to another, and the provisions are applied according to the staffing during each workweek. An agency that has seasonal employees that vary in number over the year might be subject to FLSA sometimes during the year, and exempt during others.