Reader: I am a police officer. My department claims that police and fire departments are exempt from the Fair Labor Standards Act (FLSA) requirement that all overtime work over 40 hours in a week be paid at time-and-a-half.
We are scheduled to work 40 hours per week — 160 hours during any “28-day FLSA period.” If we work more than 160 hours, we get our straight hourly wage for the first 11 hours of overtime worked. It is not until the 12th hour of overtime during the FLSA period that we earn time-and-a-half. After 28 days, a new work period starts, and we start all over.
I have spoken with people at the Labor Department and cannot get an answer as to why this is, other than, “Because you are first responders and need to be available in case of emergencies.” Of course we have to respond, but does that mean we should not be compensated like every other American worker? Could you please explain why first responders are exempt?
Karla: Let’s start with the historical and legal reasons. In 1974, Congress expanded FLSA’s overtime provisions to cover almost all public employees. However, because law enforcement and firefighters generally work atypical schedules — firefighters, for example, generally work one 24-hour shift followed by 48 hours off, or 56 hours a week on average — state and local governments had protested that they wouldn’t be able to afford to pay them overtime without raising taxes or cutting services. So Congress created a special overtime exception for state and local public safety workers: the “7(k) work period rule,” which bases overtime calculations on a work period ranging from 7 to 28 days, instead of a 40-hour workweek.
Under this rule, in a 28-day period like yours, a police officer has to work 171 hours and a firefighter has to work 212 hoursbefore overtime pay kicks in.
I learned from law enforcement representatives in Maryland and Virginia that state and local agencies have developed myriad approaches to compensating emergency responders within budget limits and the 7(k) rule. For example, Maryland State Police employees are scheduled in 8- or 10-hour shifts; if a shift runs long, they receive time-and-a-half pay for the extra work time. On top of that, although they’re paid every two weeks, their schedules are arranged over 28-day periods to ensure they don’t exceed 171 hours, which would result in overtime pay under FLSA.
That was the easy answer to your “why.” But I suppose you’re really asking why public servants who already risk their lives have to give even more to receive the same benefits as the average hourly drone. I can’t help you there. But I’ll keep it in mind next time I’m fuming about being pulled over.
Special thanks to Declan Leonard of Berenzweig Leonard and Aaron Michael of Maryland’s State Law Enforcement Officers Labor Alliance.
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