Police And Firefighters Entitled To Overtime Based On How They Divide Their Duties At Work
A recent 11th Circuit case has determined that employees who spend time on both firefighting and law enforcement duties are entitled to overtime based on how they divide their time on each duty.
Generally, under the FLSA, employers must pay employees overtime at the rate of time-and-a-half times their regular rate of pay for all hours in excess of 40 in any work week. However, public agencies engaged in “fire protection” and “law enforcement” are subject to different rules. Under federal law, firefighters must work up to 212 hours in a 28-day period, whereas law enforcement employees need only work 171 hours. (29 U.S.C. Sec. 207(k)).
In Creemens v. City of Montgomery, 661 F.Supp.2d 1253 (M.D. Ala. 2009) the 11th U.S. Circuit Court of Appeals reviewed whether a 1999 amendment which specifically defined “fire protection” and “law enforcement” activities rendered a longstanding Department of Labor regulation obsolete. The regulation, 29 C.F.R. Sec. 553.213(b), provides that for those employees performing both fire protection and law enforcement activities, overtime is determined by how the employee spends the majority of his work time during the work period.
Last year, the lower court determined that the previous regulation was no longer valid. Cremeens v. City of Montgomery, 661 F.Supp.2d 1253 (M.D. Ala. 2009). However, earlier this month the 11th Circuit reversed this decision reasoning that the new amendment simply defined what constitutes “fire protection” and “law enforcement activities,” but didn’t impact how overtime law was applied to these job categories. As such, no conflict exists between the amendment and the regulation. Hence in this case, determining if the arson investigators are entitled to overtime, and how much, depends on how they spent the majority of their time during the pay period.
