By Brooks, Michael E.
The FBI Law Enforcement Bulletin , Vol. 73, No. 6
Congress passed the Fair Labor Standards Act (FLSA) (1) during the economic depression in 1938 in an effort to expand the number of jobs available in the United States. They reasoned that if an employer was required to pay employees extra for working more than 40 hours a week, the employer, instead, would decide to hire new workers at the lower wage, thus creating more jobs. In 1974, Congress amended the FLSA, making it applicable to public sector employees. However, in National League of Cities v. Usery, (2) the U.S. Supreme Court held that the 1974 amendment of the FLSA was unconstitutional with respect to employees performing traditional government functions, such as law enforcement. In 1985, the Supreme Court reversed itself and ruled that Congress did have the power to apply the FLSA to state and local governments. (3)
It is essential that a law enforcement administrator charged with scheduling employees has an understanding of the applicability of the FLSA's compensation provisions to public sector employees. Failure could lead to significant financial liability for unpaid wages and overtime. For example, the failure to properly credit employees one-half hour per day for time spent performing a government function could mushroom into millions of dollars of liability when that one-half hour is multiplied by the number of employees performing the function and by the number of days the function was performed over a period of 2 to 3 years. This is especially true when considering that in some instances, such employees would be entitled to liquidated damages in an amount equal to the lost wages, as well as court costs and attorneys' fees. (4) To fairly compensate employees and avoid the consequences that may flow from miscalculation of wages, administrators must have a working knowledge of who is covered by the FLSA, what activities of covered workers must be compensated, what constitutes overtime under the FLSA, how much a covered employee must be paid for any overtime, and when a police agency can give a covered employee compensatory hours off in lieu of paying overtime wages. This article addresses these issues.
At the time that this article was written, the U.S. Department of Labor was proposing a number of changes to the definitions of exemptions from FLSA coverage. For example, under the proposed changes, most salaried managers and supervisors no longer will be entitled to overtime pay under the FLSA if their most significant responsibility involves the supervision of other employees. Currently, the law generally requires that such individuals spend a majority of their time engaged in the actual supervision of other employees to be exempt from these provisions. (5) Commentators have argued exactly how much impact these changes actually will have on law enforcement. (6) On April 19, 2004, Secretary of Labor Elaine Chao announced modifications to the proposed changes. Among these modifications is language that clearly states that police officers generally are covered by the FLSA. (7) The original proposed changes did not make this distinction. All of the proposed changes, which are scheduled to take effect in August 2004, are detailed at the Department of Labor Web site at www.dol.gov.
The FLSA covers all public employees not specifically exempted by the law. However, there are a number of specific exemptions. First, elected officials and their appointed staffs specifically are exempted from coverage. (8) In a sheriff's department, that would include the sheriff and those policy-making officials directly appointed by the sheriff. One U.S. circuit court of appeals has expanded this exemption to sheriff's deputies. (9)
The most significant exemption to law enforcement agencies is the white-collar exemption. This provision exempts salaried executive, administrative, and professional personnel as long as the salary is greater than $8,060 per year. …