On August 8, the Wage and House Division of the U.S. Department of Labor released an opinion clarifying the rules for personnel that serve as both firefighters and law enforcement personnel.
- Section 7(k) (29 U.S.C. § 207(k)) of the Fair Labor Standards Act provides a partial overtime exemption on a “work period” basis for an “employee in fire protection activities” and an “employee in law enforcement activities.”
- No overtime is owed to an employee engaged in fire protection who works 212 or fewer hours in a 28-day work period or that same ratio of hours to days in any work period from 7-27 days (approximately 7.57 hours per day over the entire work period).
- No overtime is owed to an employee engaged in law enforcement who works 171 or fewer hours in a 28-day work period that same ratio of hours to days in any work period from 7-27 days (approximately 6.11 hours per day over the entire work period.
- When an employee is engaged in both fire protection and law enforcement, “the applicable [maximum hours] standard is the one which applies to the activity in which the employee spends the majority of work time during the work period (29 C.F.R. 553.213(b).)”
The Wage and Hour Division was asked to consider two cases:
- During a 28-day work period, an employee works 17 days and no more than 129 hours engaged in fire protection for the fire department, and the employee works seven days and no more than 43 hours engaged in law enforcement for the police department.
The Wage and Hour Division decided “that the fire protection maximum hours standard applies since the employee spent the majority of work time in fire protection rather than law enforcement.” Since the maximum number of hours that the employee would work was 172 hours, the employee did not work more than the 212-hour maximum for employees in fire protection. So, the employee does not have to be paid overtime.
- The employee still works 17 days and no more than 129 hours engaged in fire protection for the fire department. However, the employee works 11 days and no more than 67 hours in law enforcement for the police department.
The Wage and Hour Division decided that the “fire department maximum hours standard still applies since the employee still spends the majority of the work time in the 28-day period with the fire department.
The Wage and Hour Division did point out that if the number of hours were reversed and the employee worked 129 hours in law enforcement and 43 or 67 hours in fire protection, the employee would spend the majority of work time in law enforcement and, therefore, the lower maximum of 171 hours for employees engaged in law enforcement would apply.
The full opinion can be found at the US Department of Labor website.
Ken LaSala is the director of Government Relations at the IAFC.
Image: by Ed Brown (Public Domain).