Employer Took Necessary Steps To Establish FLSA’s 7(k) Exemption

Law enforcement officers and firefighters are treated differently under the Fair Labor Standards Act (FLSA) than most employees. Instead of paying employees on a 40-hour workweek basis, a public safety employer that “establishes” a partial overtime exemption under Section 207(k) of the FLSA can pay employees on a “work period” basis. For law enforcement employees, the maximum non-overtime hours in a work period are roughly equivalent to a 43-hour week; for firefighters, the maximum hour standard is roughly equivalent to a 53-hour week.

A recent case in Massachusetts dealt with the question of whether the employer took adequate steps to “establish” a Section 7(k) exemption. The case involved a group of police officers working for the Town of Framingham, Massachusetts, who sued the Town for FLSA violations. The Town moved for a judgment on the issue of whether it had taken the necessary steps to establish a Section 7(k) exemption.

A federal trial court ruled that to “establish” a Section 7(k) exemption, an employer must “announce the adoption of a qualifying work period and take bona fide steps towards implementing the announced work period.” The Court found that the Town satisfied both steps.

With respect to the adoption of a work period, the Court cited evidence that the Town announced its intention to adopt a Section 7(k) work period in 1986 through the distribution of a memorandum from the Town’s former executive administrator to the Police and Fire Chiefs. The Court also found that there was not a “high hurdle” in the law for an employer to establish that it took “bona fide steps to implement” the qualifying work period. In fact, the Court held that the mere fact that the Town’s administrator “distributed the 1986 memorandum to the relevant departments and Town offices” amounted to the necessary “bona fide steps” to implement the work period.

The police officers suing the Town argued that the Town had actually taken no affirmative steps to change its payroll practices to align with the 24-day Section 7(k) exemption the Town was claiming, and that the collective bargaining agreement covering police officers set their workweek at 38.32 hours per week. The Court dismissed these arguments, finding that “the fact that the collective bargaining agreement may have terms that differ from the work period established for purposes of Section 7(k) is simply legally insignificant.”

Calvao v. Town of Framingham, 2008 WL 2690358 (D.Mass. 2008).

This article appears in the September 2008 issue