With the end of the year quickly approaching and the expiration of some collective bargaining agreements, we have received many questions concerning the classification of law enforcement employees under the Section 7(k) partial exemption of the FLSA. This memo serves to briefly describe who qualifies for the Section 7(k) exemption, the test to apply for classifying law enforcement officers, firefighters, and communications (dispatchers), and the practical application of Section 7(k).
A. The Section 7(k) Partial Exemption
Section 7(k) provides a partial overtime pay exemption for public employees engaged in law enforcement activities who are employed on a work period basis, which may be from 7 consecutive days to 28 consecutive days in length. 29 C.F.R. §§ 553.201, 553.224. For work periods of at least 7 but less than 28 days, overtime pay is required when the number of hours worked exceeds the number of hours that bears the same relationship to 171 as the number of days in the work period bears to 28. 29 C.F.R. § 553.230. For example, sheriff’s deputies must receive overtime after 86 hours worked during a 14-day work period. Id.
B. Who Qualifies for the Exemption?
To qualify for the exemption, an employee must satisfy a three factor test: (1) the employee must be empowered to enforce laws which maintain peace and order and protect life and property and to prevent and detect crimes; (2) the employee must have the power to arrest; and (3) the employee has undergone training for law enforcement. 29 C.F.R. § 553.211(a). Included in the classification of law enforcement are sheriff’s deputies and investigators. Correctional officers who have responsibility for controlling and maintaining custody of inmates and of safeguarding them from other inmates also qualify for the exemption. 29 C.F.R. § 553.211(f).
In properly classifying an employee as a “law enforcement officer” under Section 7(k), a county must look to the primary duties performed by the employee. The question is not whether an individual is deputized. While that is part of the analysis, the individual’s primary duties must include: work directly and primarily concerned with patrol and control functions; enforcing law and order and protecting the lives, property, and civil rights of individuals through the prevention and detection of criminal acts; responding to complaints, violations, accidents, and emergencies; investigating crime scenes; apprehending and arresting those suspected of criminal violations; executing court order, such as serving warrants, arresting upon warrants, seizing property; and security functions at correctional institutions. 5 C.F.R. § 551.216(b).
Although the defining characteristics of those in law enforcement are as described above, employees may also engage in non-exempt work which is collateral to their law enforcement activities. The performance of such non-exempt work will not defeat the Section 7(k) exemption unless it exceeds 20 percent of the total hours worked by that employee during the applicable work period. 29 C.F.R. § 553.212(a). Employees who exceed the 20% cap lose their exempt status under Section 7(k).
C. Dispatchers Are Specifically Excluded Under Section 7(k)
Specifically excluded from the Section 7(k) exemption are civilian personnel who support law enforcement activities such as “dispatchers, radio operators, apparatus and equipment maintenance and repair workers, janitors, clerks and stenographers.” 29 C.F.R. § 553.211(g). Therefore, county dispatchers do not qualify for the partial overtime exemption under Section 7(k) and must be paid overtime pay for hours worked over forty hours in a week. In many counties, employees who qualify under Section 7(k) sometime perform dispatch duties in addition to their law enforcement duties. So long as the non-exempt dispatch duties do not exceed 20% of the total hours worked, the Section 7(k) exemption will apply. Where the non-exempt dispatch duties exceed 20% of the total hours, the exemption is defeated and the non-exempt employee qualifies for overtime pay.
D. Practical Application
Given the likelihood of increased awareness by plaintiff’s attorneys for legal challenges brought about by the BRB, it is important for counties to limit the risk of possible FLSA violations through the proper use of the Section 7(k) exemption. The above test will serve to guide you in analyzing the duties of your sheriff’s deputies, correctional officers, and dispatchers. First and foremost, the primary duties of the position must be considered. Then, it is necessary to ensure that in the event non-exempt work is performed, it does not exceed 20% of the total hours worked by the individual.
Collective bargaining agreements cannot be used to circumvent the requirements of the FLSA. Except as specifically provided in the FLSA, the provisions of the CBA may not override the employer’s obligation to comply with the FLSA. Barrentine v. Arkansas-Best Freight Systems, Inc., 450 U.S. 728, 740-41 (1981). Counties remain liable for compliance with the FLSA and must ensure proper classification of employees.
If you have any questions, please do not hesitate to contact us. There are many pitfalls to properly classifying law enforcement officers, corrections officers, and dispatchers. Limiting your county’s risk for potential FLSA violations and claims is key in navigating the post-BRB world.