Final DOL regulations protect and expand overtime for America's first responders


FOP's efforts crucial to protection of overtime for public safety

Today National President Chuck Canterbury hailed the release of the Department of Labor's (DOL) final regulations on the exemptions from overtime under the Fair Labor Standards Act (FLSA) as an "unprecedented victory" for America's first responders. The regulations, which were first proposed in March 2003, highlight the FOP's singular and significant contribution to protecting the future of overtime compensation for State and local police officers, firefighters and EMTs.

"The Fraternal Order of Police is extremely grateful for the work of Secretary of Labor Elaine L. Chao and Wage & Hour Administrator Tammy McCutchen to take into consideration and incorporate the views of the FOP in developing their final regulations," Canterbury said. "Since the beginning, the FOP was alone in its confidence in this Administration's commitment to our nation's first responders, and their intention to resolve this issue to the benefit of these vital public servants."

On the preamble to the final regulations, the Department of Labor acknowledged that it was responding specifically to the views of the Fraternal Order of Police "about the impact of the proposed regulations on police officers, firefighters, paramedics, emergency medical technicians (EMTs) and other first responders." DOL went on to note that the current regulations do not explicitly address the exempt status of these employees, and "this silence...has resulted in significant federal court litigation to determine whether such employees meet the requirements for exemption."

The final Part 541 regulations make several important changes for public safety employees. For the first time ever, the regulations clarify that neither the regulations contained in 29 CFR nor the Section 13(a)(1) exemptions apply to police officers, firefighters, EMTs and other first responders who perform public safety work. The regulations go on to clarify why these employees, regardless of their rank or pay level, cannot be classified as executive, administrative or professional employees, and thus be exempted from receiving overtime pay. In addition, the Department acknowledges that the right to overtime compensation may be extended to some public safety employees who are currently classified as exempt because of changes to the regulations.

"Where others were content to ask the Department to say in its final rule only that 'no expansion of law enforcement exemptions is included in or intended by the new rules,' the Fraternal Order of Police said 'today's public safety work is more unique than ever before, and the final regulations must account for the challenges faced by our nation's first responders in the post-9/11 environment,'" Canterbury said. "The final regulations achieve that goal."

On 31 March 2003, the Department of Labor published a Notice of Proposed Rulemaking in the Federal Register to revise and update the exemptions from overtime under the FLSA for executive, administrative, and professional employees; also known as the Part 541 or "white collar" exemptions. Immediately, the clarion call spread across the nation that the Department was trying to take away the right to overtime pay for hundreds of thousands of police officers, firefighters and EMTs.

During the public comment period, the FOP worked with the International Association of Firefighters (AFL-CIO) to seek clarification of the Department's intent with respect to the overtime eligibility of public safety employees—an issue which was not explicitly addressed in the proposed rule. In late June, the FOP submitted its formal written comments to the Department. It was the first organization to weigh in on behalf of America's law enforcement community regarding the proposed changes, and advised DOL about the potential impact of the proposal on public safety employees.

"We were never concerned that DOL was trying to destroy the ability of police officers and others to earn overtime compensation, despite the rhetoric employed by other groups and some legislators to vilify and demonize Secretary Chao," Canterbury said. "Rather, we believed it was important to point out that the regulations as proposed did not sufficiently recognize the increased workloads and hazards faced by public safety employees since the heinous terrorist attacks of September 11, 2001, and to use that as the basis for our efforts."

Canterbury explained that while the FOP faced strident and often vitriolic opposition from other organizations who viewed this as a fight to maintain the status quo, the FOP never considered this to be a viable solution because of the number of public safety officers currently classified as exempt under the existing regulations. Instead, the FOP viewed the proposal as a unique opportunity to correct the application of the overtime provisions of the FLSA to public safety officers.

"These final regulations show that this Administration and this Department of Labor are responsive to the concerns of rank and file first responders," Canterbury said. "There has been too much posturing and rumor mongering on this issue by the leadership of other police organizations, who have seemed intent on sacrificing their members' paychecks on the altar of partisan politics. I hope that those who have been so employed over the course of the past year can see the folly of their ways, and that we can all recognize this for what it truly is: an unprecedented victory for police officers and their families."