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no longer valid.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.
Although overtime laws may seem straightforward, many exceptions and regulations
exist which employers may rely on to deny paying overtime. If you believe
you may be entitled to overtime compensation, please contact
our office for more information.