For law enforcement purposes, there are essentially two exemptions that may apply and exclude overtime compensation. The first, which is a complete exemption, is an employee defined under the FLSA as an "executive" employee. The second, a partial exemption, allows employers to force employees to work more than 40 hours before incurring overtime liability.

1. "Executive" Employees

One of the most common battles with regard to exempt status for law enforcement involves the claim that sergeants or lieutenants are exempt from overtime as "executive" employees. In order to qualify for the complete "executive" exemption, each of the following requirements must be met:

1. The employee's primary duty must consist of the management of the enterprise in which the employee is employed, or of a customarily recognized department, or subdivision.

2. The employee must customarily and regularly direct the work of two or more employees.

3. The employee must have the authority to hire or fire other employees, or the employee's suggestions or recommendations as to hiring, firing, advancement or promotion must be given "particular weight."

4. The employee must be compensated on a salary basis of at least $455 per week. (Salary basis means you cannot be paid hourly).

The above highlighted terms have routinely been defined as follows:

Primary duty: Usually means employees who spend more than 50% of their time.

Management: Employees who select and train employees, direct the work of employees, appraise employees' productivity and efficiency, handle employee complaints and grievances, discipline employees, determine the techniques to be used in work, apportion work among employees, etc. This list is not exhaustive.

Department, or Subdivision: A work shift can constitute a department or subdivision.

Customarily and Regularly: Greater than occasional but less than constant.

Particular weight: Involves a determination of whether it is employee's job to make suggestions or recommendations; the frequency with which they are made; frequency that they are relied upon.

*If the employee is "highly compensated," earning total compensation of at least $100,000 and customarily and regularly directs the work of two or more employees. (This is the so-called "short-cut test.")

**In most cases, the MOU will override the FLSA in this area and entitle the officer to overtime payment.

***In 2004, the DOL revised the exemptions expressly stating that the executive exemption does not apply to a long list of nonmanagement law enforcement officers, including police officers, detectives, investigators, inspectors, correctional officers, and parole or probations officers, regardless of rank or pay level. If a law enforcement officer performs any of the following work, they do not qualify for the exemption: preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; interviewing witnesses; interrogating suspects; preparing investigative reports; or other
"similar" work. 29 C.F.R. §541.3(b)(1) The key test is whether the officers' primary duty is management.

2. §207(k) Exemption

Under Section 207(k), law enforcement and fire personnel who work consecutive, recurring work periods are only entitled to overtime pay if they work an excess number of hours. The consecutive, recurring work periods can be anywhere from 7 to 28 days. Thus, employers who designate a work period of at least 7 days, but fewer than 28 consecutive days, are allowed to pay overtime only when a certain number of hours, above the normal overtime hours, are worked.

For 7 day work periods, the excess number of hours starts after 43 hours. For 28 day work periods, the excess number of hours starts at 171. For work periods in between 7 and 28 days, there is sliding scale.

In order to take advantage of this exemption, the employer must declare regular, permanent work periods for employees. The work periods must be recurring and not less than 7 consecutive days, and not more than 28. Unless the employer affirmatively adopts the §207(k) exemption, they must pay overtime after 40 hours of work.

This exemption can only be used for employees who genuinely engage in fire suppression or who are empowered to enforce laws. Thus, the exemption cannot be used for civilian traffic employees and/or code enforcement, or building guards.

Remedies for Violation of the FLSA

Employees who have had their rights pursuant to the FLSA violated may bring a civil action against their employer, including managers and/or supervisors. Employees can recover back pay and/or overtime, liquidated damages, prejudgment interest, punitive damages, emotional-distress damages, and reasonable attorney's fees and costs.

FLSA violations cannot be redressed by a typical class action lawsuit. However, employees can still bring a collective action, which means that each individual employee must affirmatively "opt-in" to the lawsuit. This entails either signing up on the initial complaint that is filed, or filing a separate consent form that is filed with the court after the initial complaint is filed.

An employee has two years to file suit after a violation occurs, or three years if the employer has "willfully" broken the law. In order to be a "willful" violation, the employer either knew or showed reckless disregard as to whether its conduct was prohibited by the FLSA.

Under the FLSA, retaliation is also prohibited. It is unlawful to discriminate against an employee because he or she has asserted rights under the FLSA.

Employers who willfully violate the act are subject to a fine of up to $10,000, or imprisonment for up to six months, or both. However, imprisonment only applies if the person has violated the act twice

Finally, an MOU which contains conditions that violate the FLSA are invalid, since employees cannot bargain away FLSA rights. Barrentine v. Arkansas-Best Freight System (1981) 450 U.S. 728.