Public safety employees often put in long hours responding to fires and accidents, conducting time sensitive investigations and providing support for sporting events, festivals and other special events. Regardless of the scheduled work week, the nature of the job can create significant overtime liabilities for cities. The Fair Labor Standards Act (FLSA) provides rules for overall overtime eligibility and has two special rules for public safety employees that could help reduce or manage overtime liabilities. These rules and eligibility requirements are covered in more detail in the U.S. Department of Labor’s “Fact Sheet #8: Law Enforcement and Fire Protection Employees Under the Fair Labor Standards Act.“
13(b)(20) Total Overtime Exemption
The first special rule is known as the 13(b)(20) Total Overtime Exemption, which exempts public safety employers with fewer than five employees from the FLSA overtime requirements. These employees must be engaged in law enforcement or fire protection directly and do not apply to support staff. The number of employees is counted for law enforcement and fire protection separately, and the organizations must continue to have fewer than five employees (full or part-time) for every pay period this rule is to be applied. This rule recognizes that smaller departments are different when it comes to coverage and hours. While overtime pay (or compensatory time) is not required to be paid to employees that qualify for this exemption, employers should create an overall compensation strategy designed to recruit and retain a highly trained workforce.
7(k) Partial Overtime Exemption
The second exemption is the 7(k) Partial Overtime Exemption, which allows cities to establish different work periods of 7 to 28 days rather than operate under a strict seven-day workweek standard. Overtime pay (or compensatory time) is generally paid to eligible employees for hours worked after 40 in a typical week; however this rule establishes a higher number of weekly non-overtime hours for public safety employees. For a seven-day work period this rule would allow employers to not pay overtime (or compensatory time) until 53 hours are worked for fire protection and 43 hours are worked for law enforcement. Hours generally increase along similar ratios depending on the work period established up to 28 days. A work period does not have to coincide with the pay period. For example, a city can establish a work period of 28 days with an employee receiving pay every two weeks. Cities must formally establish a written policy on work periods to apply this rule, and different work periods can be established for different individuals or groups of employees. The rule also only applies to uniformed or plain clothed officers and subordinates who are empowered to enforce laws, have the power to arrest and have or will undergo on-the-job training and/or a course of instruction meeting established standards.