The FLSA requires any public agency electing to utilize the §207(k) partial overtime exemption for police officers and firefighters establish a work period. In other words, to avoid paying overtime to firefighters and police officers after they work 40 hours every 7 days, the public agency needs to establish a qualifying work period. While establishing a work period may not be high on public agency administrators’ list of priorities, public agencies that have established qualifying work periods will potentially avoid significant amounts of litigation and expense if they are ever subjected to an FLSA overtime lawsuit.
What is a work period?
A work period is a unique concept that applies only to state and local government employers that utilize the §207(k) partial overtime exemption for police officers and firefighters. You can say that a work period goes hand in hand with the §207(k) partial exemption. Private sector employers do not have to establish a work period, since the FLSA requires that private sector employers pay overtime to eligible employees after they work 40 hours in a 7-day workweek.
A work period is defined in the regulations as “any established and regularly recurring period of work” between 7 and 28 consecutive days. It does not have to coincide with any pay period, work schedule, or particular day of the week. A work period must be fixed, meaning the employer cannot change the work period to avoid paying overtime. Finally, each work period stands alone, and therefore hours worked in one work period cannot be credited or used in another.
Next, public agency employers are required to pay FLSA overtime for all hours worked by firefighters and police officers over the statutory maximum for each work period. For example, if a fire department utilizes a 7-day work period, §207(k) firefighters must receive overtime for all hours worked over 53 every 7 days. If a fire department utilizes a 28-day work period, §207(k) firefighters must receive overtime for all hours worked over 212 every 28 days. The regulations found at 29 CFR §553.230 provide more information on the number of hours police officers or firefighters need to work in each work period before being eligible for overtime.
How can I establish a qualifying work period?
Neither the FLSA nor the regulations establishes a bright-line rule on how to establish a work period. However, there are several different ways to establish a work period. Obviously, memorializing a work period in a collective bargaining agreement, city policy, and/or employee handbook is often the best way to establish a work period. But, the practice of actually examining an employee’s hours every work period and paying appropriate overtime hours every work period is also extremely important in establishing a qualifying work period.
A federal court found the City of Waco, Texas, had established a 14-day work period through practice, despite previously releasing a memo proclaiming the city intended to establish a 28-day work period. The court looked to the actual practices of the city to determine which work period the city followed. Even though Waco drafted a document proclaiming a 28-day work period, the city’s actual practice involved examining firefighters’ hours every 14 days for overtime purposes. The court found that the city, in effect, waived its right to the longer work period by not putting that longer work period into “effective” operation.
Do I need to bargain over establishing a work period?
The FLSA does not require an employer to bargain with employees over the establishment of a work period. However, this does not mean that no bargaining needs to take place over the work period. Whether or not a work period is subject to collective bargaining is dependent on state labor relations law. Understandably, states with more complex public sector collective bargaining laws may find it necessary to bargain collectively with unions that represent police officers and firefighters over establishing or changing a work period.
Okay, so if you’re reading this and it all makes sense, you have established a qualifying work period. Maybe it is 14 days, or 28 days, whatever the case may be, terrific. You are in good shape.
In the event your organization has not established a work period, all is not lost. You are not alone. The sky will not fall. You may have even established a work period and are not aware of this! However, you definitely want to sit down and discuss your options with local counsel.
Work periods will be discussed in much more depth at all the upcoming FLSA for Fire Department seminars. Please consider joining us.