As most public employers know, the Fair Labor Standards Act, which requires employers to pay time and one-half overtime for work over 40 hours in a week, also contains a partial exemption for police and fire personnel. Rather than determining overtime based on the hours worked in a week, the Act allows employers to calculate overtime based on as many as 28 consecutive days. The exemption, often referred to as the 7(k) exemption because it is found in Section 207(k) of the Act, provides that fire personnel are entitled to overtime rate of pay after working 212 hours in a 28-day period or the same ratio for fewer days and police personnel earn overtime after working 171 hours in a 28-day period or the same ratio for fewer days.
But what does an employer do if the worker is both a police officer and a firefighter? It happens in some municipalities that a full-time police officer might also work as a part-time firefighter or the other way around. Or, it might be that the municipality only employs part-time police and firefighters, but some of their employees work both part-time jobs.
In Opinion Letter FLSA 2019-11, issued last month, the Department of Labor addressed this issue. Noting that if an individual works for separate entities, such as a Fire Protection District and a municipality, the employers, regardless of how closely aligned their agencies are, have no overtime obligation for the employee’s work for the other agency, but do if the employee works in both capacities for a single agency or employer.
To resolve the question of which 7(k) exemption applies, the DOL clarifies that an employer may take advantage of the exemption applicable to the position in which the employee worked the greatest number of hours during the relevant work period. For example, an employee who works 149 hours in a 28-day work period as a firefighter and 23 hours in that same work period as a police officer will be covered by the overtime exemption for firefighters since a majority of the work performed was as a firefighter. Using the 212-hour exemption, the employer would owe no overtime in that example because the employee worked a combined 172 hours in the work period. On the other hand, if the work hours were reversed, and the employee worked 149 hours as a police officer and 23 hours as a firefighter, then the appropriate 7(k) exemption would be that of a police officer-171 hours in a 28-day work period. Therefore, the employer would owe one hour of pay at the overtime rate.
Employers who have workers who serve as both police and fire personnel are best served to operate on the same work period in both departments. Twenty-eight days is the most generous to the employer. Additionally, it is important to review the hours worked at the end of each work period-which likely will not coincide with the actual pay periods-to determine which 7(k) exemption applies.