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Are Firefighters And Police Officers Entitled To Overtime Pay? I Need A Lawyer!

| Oct 13, 2015 | overtime time violation |

Best Ohio Overtime Attorney Answer: Are firefighters and police officers exempt from overtime pay requirements? When does my work week start and end for overtime purposes? Is it proper for my employer to utilize a “work period” to calculate overtime?

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As our overtime law attorneys have blogged about regularly, both Federal and Ohio law require that qualified employees are paid overtime wages for all hours worked over 40 in a week. (See As A Salaried Employee, Am I Exempt From Overtime Pay?; Am I Entitled To Overtime? I Need A Lawyer!; I’m A Commissioned Employee. Am I Entitled To Overtime?; and Should I Be Paid Overtime Even If I Have The Title Manger? Top Ohio Wage and Hour Lawyer Reply!). As provided by Ohio R.C. § 4111.03(A) “[a]n employer shall pay an employee for overtime at a wage rate of one and one-half times the employee’s wage rate for hours worked in excess of forty hours in one workweek, in the manner and methods provided in and subject to the exemptions of . . . the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C.A. 207, 213, as amended“ (“FLSA“).

Under the FLSA, first responders, such as firefighters, police officers, and certain EMS employees must be paid overtime. However, pursuant to 29 U.S. Code § 207(k) of the FLSA, the rules for determining whether such an employee is entitled to overtime are different than the usual (and straight forward) 40 hour a week test – if the employer has adopted what is known as a “work period” under the statute.

Likewise, section 7(k) expressly applies to only those employees who are “engaged in fire protection or law enforcement activities.” Section 3(y) goes on to define employees engaged in fire protection as:

a firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazardous materials worker, who

(1) is trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department of a municipality, county, fire district, or State; and

 (2) is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.

Likewise, 5 CFR 551.216 defines law enforcement activities as follows:

Law enforcement activities involve work directly and primarily concerned with:

 (1) Patrol and control functions that include patrolling an area to enforce law and order and to protect the lives, property, and civil rights of individuals through the prevention and detection of criminal acts; responding to complaints, violations, accidents, and emergencies; investigating for clues at the scene of a crime, interviewing witnesses, and evaluating evidence to locate suspects; and apprehending and arresting persons suspected of, or wanted for, criminal violations under a statutorily prescribed arrest authority;

 (2) Executing the orders of a Federal court, including serving civil writs and criminal warrants issued by Federal courts; tracing and arresting persons wanted by warrants; and seizing and disposing of property under court orders;

 (3) Planning and conducting investigations relating to alleged or suspected violations of criminal laws, including the arrest of suspected or wanted persons under a statutorily prescribed arrest authority;

 (4) Security functions in a correctional institution involving direct custody and safeguarding of inmates charged with or convicted of violations of criminal laws; or

 (5) Rescue and ambulance functions that provide the primary (i.e., the first called) service in connection with law enforcement activities described above.

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Section 7(k) allows government employers to establish a “work period” ranging from as little as 7 consecutive days, to as many as 28 consecutive days, for the purposes of determining whether an employee is entitled to overtime pay. The rule then sets out that for those employers who set out a 28 day work period, an employee will only become entitled to overtime after they work 216 hours. Now, think about that – under this rule, an employee could work every hour of a given week, or 168 hours, and not be entitled overtime, so long as they don’t work more than 48 hours in the remaining 21 days!

An employer could also choose a shorter work period than twenty eight days. This is where section 7(k) becomes even more confusing:

in the case of such an employee to whom a work period of at least 7 but less than 28 days applies, in his work period the employee receives for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in his work period as 216 hours (or if lower, the number of hours referred to in clause (B) of paragraph (1)) bears to 28 days (the employee shall be entitled to overtime)

Not very simple, right? While the language will make your head hurt, all this is really saying is that those employers who utilize section 7(k)’s exemption must take the 216 hours divided by 28 days (7.71 hours) and multiply that by the number of days in a work period (rounding up). Thus, an employer who adopts a 7 day work period does not need to pay overtime until the employee works 54 hours (7.71*7 = 53.99), or in the case of an employer who adopts a fourteen day work period, 108 hours (7.71*14 = 107.94), or, in the case of an employer who utilizes a 21 day work period, 162 hours (7.71*21 = 161.91). The hours within these work periods can be divided however the employer wants. An employer is not required to choose a work period of equal weekly intervals like the examples above – they can chose any number of days between 7 and 28. Then, to figure out whether overtime is due, the employer must calculate 7.71 by the number of days chosen.

Critically, section 7(k) does not automatically apply to first responders – it must be affirmatively adopted by the employer, who cannot retroactively apply the statute to avoid overtime obligations. Thus, those employers who have not adopted a work period within the meaning of section 7(k) are still required to pay overtime for any hours in excess of 40 per week. Indeed, an employer has the burden of demonstrating that it established the 7(k) work period, and that the work period was “regularly recurring.” While an employer is not required to have a written policy, courts have found that the question of whether an employer has met this burden is usually a question of fact that a jury must resolve.

If you are a first responder (police officer, firefighter, EMS or paramedic) with questions about your eligibility for overtime, the best thing to do would be to call the right attorney.

If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt or independent contractor, contact the attorneys at The Spitz Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at The Spitz Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.

Disclaimer:

The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.