Most police officers and police employers know that the federal Fair Labor Standards Act requires overtime pay at "time and one-half' for FLSA overtime hours worked. Less well known, however, are some of the FLSA rules governing how time and a half must be calculated. This has sometimes resulted in arithmetic mistakes which have deprived officers of wages to which they are entitled under the law.
Wage Augments
FLSA overtime must be paid at time and one half an officer's"regular rate" of pay. For some police officers, their regular rate will simply be the hourly rate at which they are employed. However, in many departments officers receive "wage augments" in addition to their normal hourly wage or salary. These can include compensation for "longevity;" "shift differentials;" "detective pay;" "uniform allowances;" and so forth. Some of these may well be required to be factored in when the employer calculates time and a half for FLSA overtime purposes. It is not unusual to find that FLSA overtime has been improperly calculated by failure to include some wage augments as required by the law.
The FLSA regular rate includes virtually all compensation paid to an employee for work. The law is pretty settled that the following wage augments are to be included in figuring regular rates for FLSA overtime purposes: "longevity pay;" "shift differentials;" "special duty pay" (such as detective payor "stipends" for special duty work); and "increased compensation," awarded to officers who hold particular educational degrees. These are no more than increases in the rate of pay for work, and overtime must be based on the actual compensation received for work performed. If "wage augments" such as these are paid in "lump sums," they should be prorated for FLSA computation purposes.
Additional compensation for anything other than work is not included in an employee's regular rate of pay. For example,"vacation buy-backs" or "rewards" for not using sick leave are not pay for work and therefore need not be included in the regular rate for FLSA overtime purposes. An illustration of the difference might be tuition reimbursement programs (which are not pay for work) and wage augments for officers who have obtained particular educational degrees (which are). A good "rule of thumb" is that money received for time spent doing work-related activity is part of the regular rate, while money received to reimburse expenses incurred is not.
When Problems Occur
If some pay for work is not included in the regular rate on which FLSA overtime is calculated, that would be a violation of the statute. Affected employees would be entitled, under the law, to have their FLSA overtime recalculated, using proper regular rates, and to be paid the difference. The FLSA also provides that employees are entitled to interest on wage underpayments, and in most cases the amount of interest is 100 percent (called "liquidated damages" in the FLSA).
Failure to include wage augments in an employee's regular rate may be a simple mistake on the part of management and in some cases can be corrected simply by bringing the matter to their attention. If this does not work, affected employees who wish to pursue their rights must either complain to the federal Department of Labor or initiate private legal proceedings. Private lawsuits are the more common method by which police officers have sought to enforce FLSA rights. If legal action is required, recovery is generally limited to the period beginning two years before a complaint is filed in court. The FLSA also provides for "attorneys' fees awards," designed to make it possible for employees to vindicate FLSA rights without having to incur extensive personal legal bills to do so.
No one will likely get rich on a recovery for this kind of FLSA violation, but officers are certainly entitled to be paid properly under the law.
Jeffrey Chamberlain is a partner in the Albany, N. Y., law firm of Chamberlain and Kaufman, and has represented police employees and employers in Fair Labor Standards Act litigation.
