Tuesday, May 4, 2010

Arson Investigators Might Get Overtime Pay

The 11th Circuit Court of Appeals has ruled that employees who spend time on both firefighting and law enforcement duties - such as arson investigators - are entitled to overtime pay based on how they divide their time on each duty.

The Fair Labor Standards Act (FLSA) generally requires that employers must pay employees overtime at the rate of one-and-a-half times their regular rate of pay for all hours in excess of 40 in any work week. However, employees engaged in “fire protection” and “law enforcement” duties have different rules focusing on the total hours worked in a 28-day period. For firefighters, working more than 212 hours in 28 days triggers overtime pay; for law enforcement personnel, working more than 171 hours in 28 days is the trigger.

Last year, a district court in Montgomery, Alabama held that a U.S. Department of Labor regulation, (29 C.F.R. §553.213(b)), which requires overtime to be paid to employees who perform both law enforcement and fire protection duties based on which activity they spend most of their time engaged in, had been rendered obsolete by a 1999 amendment to the FLSA. (See Cremeens v. City of Montgomery, 661 F. Supp. 2d 1253 (M.D. Ala. 2009)).

The 11th Circuit disagreed, finding no conflict between the regulation and the 1999 FLSA amendment. The Court reversed the decision and sent the case back to the district court for a review of whether the arson investigators actually performed law enforcement duties. If the court determines that they do, they will probably be entitled to recover back overtime pay based on the lower 171-hour threshold for law enforcement employees. (Cremeens v. City of Montgomery, No. 09-15633, 2010 WL 1268019 (11th Cir. April 5, 2010)).

If you are in law enforcement, fire protection, or any related field, and you think you might be entitled to overtime pay you have not been getting, contact my office. I'll be glad to discuss your legal rights under the FLSA with you.

-B

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