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New Federal
Overtime Regulations - Police Friendly
By Dieter C.
Dammeier
Lackie & Dammeier, LLP
Most of the readers of
this article are not aware of how close they came to losing their overtime
rights provided by the Fair Labor Standards Act, as regulated by
the Federal Department of Labor. As most of you are aware, the Bush
Administration has been working hard to overhaul the overtime regulations.
The initial proposals included provisions that would have exempted most
law enforcement personnel from the overtime requirements currently in
place. The nearly enacted provisions included provisions that anyone
making more than $21,500 and supervising two or more persons exempt from
overtime provisions. This rule would have covered just about every Police
Sergeant in the nation. Additionally, there was language to exempt any
person making more than $65,000 per year in total compensation. Upon
close review of the proposed regulations, one could readily conclude that
law enforcement officers were being phased out of the FLSA protections.
Fortunately, due to the
lobbying efforts of police organizations throughout the country, including
PORAC, political pressure was brought to bear on Congress, which in turn
conveyed our message to the Department of Labor. As a result, although
the FLSA has been dramatically altered by the new regulations, law
enforcement personnel still enjoy the protections of the FLSA. In fact,
the newly created regulations provide even greater protection to some law
enforcement personnel. Section 541.3(b)(1) of the new regulations reads
that “executive, administrative and professional” exemptions are not
applicable to “police officers, detectives, deputy sheriffs, state
troopers, highway patrol officers, investigators, inspectors, correctional
officers . . . regardless of rank or pay level” who perform crime fighting
activities.
The new regulations will
likely have the impact of changing the tide when it comes to deciding
whether Sergeants and Lieutenants are exempt under the FLSA. The Federal
Courts have, in recent years, been leaning towards exempting Lieutenants
as administrative or executive employees. In some cases, Sergeants were
even held to be exempt from the FLSA requirements. In clarifying that
mid-level supervisors enjoy overtime protection, section 541.3(b)(2) even
provides an example which reads: “Thus, for example, a police officer or
firefighter whose primary duty is to investigate crimes or fight fires is
not exempt under [the FLSA] merely because the police officer or
firefighter also directs the work of other employees in the conduct of an
investigation or fighting a fire.” Section 541.3(b)(3) goes further to
include “such employees do not qualify as exempt administrative employees
because their primary duty is not the performance of work directly related
to the management or general business operations of the employer.”
If there was any question
as to the intent of DOL’s new regulations in regard to police supervisors,
that intent was clarified by their preamble to the newly instituted
regulations. DOL indicated that the new regulations are “to make clear in
these revisions…that such police officers, firefighters, paramedics, EMTs
and other first responders are entitled to overtime pay. Police
Sergeants, for example, are entitled to overtime pay even if they direct
the work of other police officers because their primary duty is not
management…”
It is expected, based on
these new regulations, that police agencies as should police associations
representing Sergeants and Lieutenants, will reevaluate their decisions on
the overtime classification of these mid-level supervisors. As with most
DOL regulations, the final impact and interpretation will be decided by
the Courts as these cases are litigated.
About the author: Dieter C. Dammeier is a LDF panel attorney and
partner at the Law Firm of Lackie & Dammeier representing police
associations in labor and disciplinary matters.
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