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 & McGill representing police associations in labor and disciplinary matters.