After much debate, the Fair Labor Standards Act has been changed to protect law enforcement officers who receive overtime compensation. The new regulations are slated to go into effect August 23, 2004.
Section 541.3(b) adds explicit language that the revised overtime exemptions for executive, administrative, and professional employees are not to be applied to law enforcement officers, deputies, correctional officers, probation officers, parole officers, highway patrol troopers, state police officers, or rangers, regardless of rank. This includes officers who have as their primary duty preventing or detecting crime; conducting investigations; pursuing, restraining and apprehending suspects; supervising suspected and convicted criminals; interrogating suspects; preparing investigative reports; and "other similar work."
Unfortunately, officers who don't have as their primary duty such tasks as specified above, and who gross more than $23,600 per year, may still be at risk of losing overtime.
But law enforcement lobbyists were successful in securing the use of a less stringent test of overtime eligibility for law enforcement officers. Language in the preamble to the final rule states that the "super-short" test for highly compensated employees (originally defined as those grossing over $65,000 per year, now raised to $100,000 per year) is not to be used for law enforcement workers. This means that even highly compensated police employees will have to be evaluated under the regular "duties test" to determine if they can be denied overtime pay.
The "duties test" has been modified to make it easier for employers to classify workers as exempt, but, even so, it's still better to be under the duties test than the super-short test that non-law enforcement workers will now be subject to. The net result is a win for police, as the Department of Labor was forced to revise its initial proposal.
Finally, language that would have allowed employers to classify a worker as a learned professional (and thus exempt from overtime) based not on advanced academic degrees but on military training, community college courses, or technical school attendance, has been completely deleted.
In issuing the new final rule, the Department of Labor has been forced to back off its original plan. Don't be deceived by press releases or statements arguing that the changes are minor clarifications or minor issues that would not have affected law enforcement officers either way. And the fight is not over. There are still concerns over overtime eligibility at the police sergeant rank and above.
One thing should be absolutely clear: The Department of Labor did not preserve officers' overtime voluntarily. It was forced to by groups like the National Association of Police Organizations (NAPO) and by the support of law enforcement officers like you. America's police and corrections officers came out of this with their overtime intact, but it wasn't without a great deal of effort. Although we've won this battle, it's important that we be aware of proposed changes to the rights of police officers so we can fight to retain or even improve those rights. Ignorance and inaction will leave us with no alternatives.
Bill Johnson is the executive director of the National Association of Police Organizations. The text of the new Fair Labor Standards Act regulations affecting law enforcement officers' overtime eligibility is available at www.napo.org.