Beware of Misleading Information Regarding the FLSA

Recently, it has come to our attention that one or more national organizations and some legislators are spreading misleading information regarding the impact of the Department of Labor's proposed regulations governing the exemptions from overtime under the Fair Labor Standards Act (FLSA) on veterans of the armed forces; or what some have called a "military penalty."

While we can only speculate as to the motives of those who are dealing in half-truths and falsehoods, we believe that it is important to provide the correct information to the membership of the Fraternal Order of Police regarding the "professional exemption" and public safety officers who are also military veterans. It is important to note that neither the existing nor the proposed regulations would change the fact that the work performed by rank and file police officers, firefighters and EMTs has been deemed by both the courts and the Department of Labor as manual work, and as not meeting the requirements necessary to classify these employees as ineligible for overtime under the professional exemption.

It has been alleged by these groups that the military training which our veterans receive for technical, medical, engineering and scientific occupations could be substituted for a four year college degree, and thus exempt these individuals as "professional employees" from overtime under the FLSA. In fact, however, the proposed rule issued by the Department in March clearly states that a "professional employee" is someone who performs office or non-manual work which requires knowledge of an advanced type in a field of science or learning. This requirement for the exemption means that the training and education must be of the type which the employee uses as a regular part of his job, focusing on the knowledge of the employee and how that knowledge is used in his everyday work.--i.e. medical training for doctors. It applies to work that is predominantly intellectual in nature as opposed to routine or physical work--such as that performed by lawyers, doctors and engineers. The Department has also clearly stated that the learned professional exemption from overtime pay is restricted to professions where specialized academic training is a standard prerequisite for entrance into the profession.

In practical terms, if an employee of a private sector engineering company received his education in this field through a combination of college courses and specialized military training in engineering, he may qualify as an exempt professional. However, to say that an employee of a State or local law enforcement agency, who received medical or technical training in the military, would become an exempt professional police officer is absurd at best.