If you’ve snuck a peek at the byline of this column, you may be wondering: “Where’s Tracey? Who’s this new guy?” Allow me a moment to introduce myself. My name is Caleb Alexander-McKinzie, and I’m the newest inquiry attorney here at the League. I work closely with Tracey on employment matters when we find ourselves at the crossroads of law, policy and practicality. Tracey asked if I would like to guest-spot on an article and I excitedly agreed.

One of the most frequent topics on which Tracey and I collaborate is that of payment and overtime for uniformed employees, specifically our law enforcement officers and firefighters. How do we pay overtime? Do we have to pay overtime? What about this Fair Labor Standards Act (FLSA) exemption? Does it apply to us? My goal for this article is to succinctly answer some of these great questions so we can get back to the business of properly taking care of the most important asset our cities and towns have: our employees. Let’s sort it out.

When it comes to overtime, it is best to start with the baseline and work into the exceptions. Both the FLSA and Arkansas law state that covered employees shall receive pay at a minimum of time-and-one-half of their regular pay rate for any hours worked over 40 hours.¹ See 29 U.S.C. § 207(a)(1); Ark. Code Ann. § 11-4-211(a). That is easy enough. Non-exempt employees begin accruing overtime at the 41st hour of their work week. Now, here come the wrinkles.

The first thing to know about overtime for uniformed employees is whether you are required to pay overtime at all. Wait, didn’t I just say the law requires overtime for any employee who works more than 40 hours? Yes, but the FLSA has an exemption for uniformed employees. See, I told you there would be wrinkles. If your municipality has a police department with fewer than five officers, including the chief of police or the city marshal, those officers are exempt from the FLSA’s overtime provisions. 29 U.S.C. § 213(b)(20). If your municipality has a fire department with less than five firefighters, including the fire chief (if paid), then those firefighters are exempt from the FLSA’s overtime provisions. 29 U.S.C. § 213(b)(20). In determining if you have fewer than five for overtime purposes, the city does not count volunteers, auxiliary officers, dispatch and/or plain-clothed personnel who are not law enforcement or engaged in fire prevention and extinguishment. Four or less, the municipality does not have to pay overtime. Five or more, the FLSA is triggered, and it is time to make it rain.²

We did it. We got passed the first hurdle. It wasn’t so bad. Let’s do another, shall we?

Let’s say that your city does have police and fire departments with five or more officers and you have to pay overtime. The FLSA and Arkansas law say we must pay overtime for anything after 40 hours, right? Not so fast, my eager payroll professional. The second wrinkle comes in the form of the FLSA’s supplemental partial overtime exemption for police officers and firefighters. See 29 C.F.R. § 553.230. This provision allows our municipalities to establish a “work period” for each of these departments for overtime calculation purposes. Unlike other non-exempt employees, the law allows these employees to work more than 40 hours in the work week before accruing overtime.

To take advantage of this, the governing body of the municipality must establish a work period of not less than seven days and not more than 28 days³ for these respective departments. It’s best if this work period is established by ordinance or resolution. For example, if your town’s governing body establishes a seven day work period by ordinance, law enforcement officers may work 43 hours before accruing overtime, while the law allows firefighters to work 53 hours before accruing overtime. If the governing body establishes a 28-day work period, police officers may work 171 hours while firefighters may work 212 hours before the city is required to pay overtime.

Looping back to the original baseline, if the governing body has not established a work period for these purposes, then you must pay police officers and firefighters overtime just like other employees—time-and-one-half for every hour worked over 40 hours in one work week. As good stewards of tax dollars, the spirit of fiscal responsibility behooves us to establish these work periods.

One final little wrinkle to work out: compensatory time. Colloquially known as “comp time,” municipal governments are allowed to “pay” overtime in the form of additional time off. See 29 C.F.R. §553.21(o)(3)(B). So, instead of paying overtime monetarily, the city can “pay out” time-and-one-half in paid time off. The regulations regarding comp time allow qualified employees to accrue up to 480 hours of compensatory time, which equates to 320 hours worked.⁴ I bring this up because comp time is not available to employees in the private sector, so those of you who are new to government employment may not be aware that this is an option. Importantly, the employee must agree to receive comp time in lieu of monetary overtime pay prior to doing the work. One way to ensure that every employee knows and agrees to comp time is to include a provision in your employee handbook, ensure that all employees read that provision and sign an acknowledgment that they have done so. Put it in their employee file for safekeeping and sleep well knowing you have done your due diligence.

I know this is a lot of information to process, but I hope I have done a decent job of explaining it. If you have questions, do not hesitate to reach out. We’re here to help, and we’re glad to help.

1
This only applies to non-exempt employees. Exempt employees are defined in Section 13(a)(1) of the FLSA. See 29 C.F.R. § 541.0 et seq.
2
Don’t throw things at your employees, even money. It could constitute assault or battery.
3
Shoutout to February!
4
320 multiplied by 1.5 equals 480. I was told there would be no math in the legal field, but here we are.