Are police and firefighters treated differently than other employees under the Fair Labor Standards Act for purposes of overtime?
Yes. The FLSA provides a complete exemption from the overtime provisions for any employee of a public agency engaged in law enforcement or fire protection if the agency employs fewer than five employees during the workweek. 29 U.S.C. § 213(b)(20). For purposes of this exemption, the number of law enforcement and fire protection employees are considered separately. 29 C.F.R. § 553.200. For example, if a municipality’s fire department employs fewer than five individuals for fire protection services, but the police department employs five or more, the fire department may claim the exemption and the police department may not. All employees are counted whether they be part time, full time, on duty, or on leave. Volunteers are not counted. 29 C.F.R § 553.200(b). The exemption is determined on a workweek basis.
Agencies that do not qualify for the complete exemption may be eligible for a partial exemption commonly known as the 7(k) or 207(k) exemption. Under 29 U.S.C. 207(k), employees engaged in fire protection or law enforcement activities with 28-consecutive-day work periods are entitled to one-and-one-half times their regular rate of pay if they work in excess of the lesser of (1) 216 hours or (2) an average number of hours typical of such employees, as determined by the Secretary of Labor.