The U.S. Department of Labor’s Wage and Hour Division (“WHD”) shows no signs of fatigue as it releases two new opinion letters on the Fair Labor Standards Act (“FLSA”) within the first week of August. These opinion letters address the FLSA’s partial overtime exemption on a “work period basis” and the status of public agency volunteers. As we have previously advised, employers should read the WHD’s opinion letters carefully and consult with experienced counsel with any questions about their practices vis-à-vis WHD interpretive guidance.
FLSA Section 7(k)
As background, Section 7(k) of the FLSA has alternative overtime standards for law enforcement and fire protection personnel. In Opinion Letter FLSA 2019-11, the WHD addressed how to determine the applicable overtime hours threshold when an employee works for the fire department and police department of the same public agency.
The regulations specific to law enforcement and fire protection personnel require overtime if an employee exceeds a certain number of hours within tours of duty of 28 days (rather than the traditional 7-day workweek)—212 hours for fire protection personnel and 171 hours for law enforcement personnel—with proportional reductions for shorter tours of duty. See 29 C.F.R. § 553.230. An employer must aggregate work an employee performs in law enforcement and fire protection capacities for the same agency. If the employee works in these differing capacities for separate agencies, then the hours worked in each role stand alone, unless the situation constitutes joint employment as elaborated in the regulations. See 29 C.F.R. § 791.2. The regulations further provide that when an employee performs both fire protection and law enforcement activities, the role in which the employee spends the greater number of hours during the tour of duty determines the applicable overtime threshold. See 29 C.F.R. § 553.213(b).
The WHD then applied these rules to the two examples provided by the employer at issue.
Public Agency Volunteers
In Opinion Letter FLSA 2012-12, the WHD addressed whether volunteer Reserve Deputies at a county’s Sheriff’s Office who receive referrals for paid security work for third parties from the Sheriff’s Office (at the same hourly rate offered to paid full-time deputies) are volunteers or employees of the Sheriff’s Office under the FLSA.
As a starting point, the WHD emphasized that the FLSA aims not to discourage or impair volunteer activities but rather to prevent employers from coercing individuals to volunteer their services in order to sidestep the FLSA’s minimum wage and overtime requirements. Under 29 U.S.C. § 203(e)(4)(A), a volunteer at a public agency is not an employee for FLSA purposes if: “(1) the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered; and (2) such services are not the same type of services for which the individual is employed to perform for such public agency.” Auxiliary police are among the examples of public agency volunteers listed in the WHD regulations. See 29 C.F.R. § 553.104(b).
The WHD advised that performing extra work for third parties does not invalidate the Reserve Deputies’ volunteer status because (1) access to paid extra duty work for a third party is not “compensation” where such access was unrelated to the number or quality of volunteer hours, but rather depended on the needs of third parties; and (2) even if such access were, in fact, tantamount to compensation, it would be a “reasonable benefit” for volunteering in that it was offered to all officers on the same general terms, on a non-guaranteed basis and accounted for only about 6% of total extra duty hours. The WHD noted that its conclusion is consistent with the federal district court’s holding in Todaro v. Township of Union, 27 F. Supp. 2d 517, 539 (D.N.J. 1998), an analogous case finding unpaid special law enforcement officers to be eligible for paid positions with private entities.