This article comes from our sister blog FLSA Cases

The partial overtime exemption in Section 207(k) allows law enforcement and fire protection agencies to use a “work period” of between seven and 28 days in length as an alternative to the normal workweek, and has higher overtime thresholds for public safety employees (roughly 43 hours a week for law enforcement, and 53 hours a week for fire protection). For several reasons, the exemption is a curious beast. The most prominent oddity is that the statute allows the Department of Labor to set the thresholds based on the average number of work hours for public safety employees. However, it’s been roughly 25 years since the DOL conducted its study on average work hours. In spite of the fact that public safety average work hours have changed fairly significantly over those 25 years, the DOL has ignored requests that it update its calculations.

Another oddity is what it takes for an employer to claim the exemption. The DOL’s rule speak in terms of the employer needing to “establish” the exemption, 29 C.F.R. 553.224, a term that would seem to imply that the employer actually has to do something in order to claim the exemption. However, some courts give quite the broad reading to “establish,” and allow the employer to claim the exemption simply if employee work schedules rotate on a frequency somewhere between seven and 28 days. Since most work schedules rotate or “roll over” on some multiple of days between seven and 28, these courts find the employers are almost automatically entitled to the exemption.

And so it was in Judge William Skretny’s courtroom in the Western District of New York, in a case involving Buffalo firefighters. Here’s the relevant part of Judge Skretny’s analysis:

Although the Second Circuit has not considered this issue, it is clear from other circuits that an employer need not “affirmatively adopt” the § 207(k) exemption for it to apply. Freeman v. City of Mobile, Ala., 146 F.3d 1292, 1297 (11th Cir. 1998) (holding that the defendant need not make a public declaration). Rather, an employer can establish a § 207(k) work period by simply implementing “a work period in which employees actually work a regularly recurring cycle between 7 and 28 days.” Birdwell v. City of Gadsden, 970 F.2d 802, 806 (11th Cir. 1992). The Court in Birdwell held that a directed verdict on the existence of a 207(k) plan would be appropriate based on uncontradicted evidence that the employees actually worked a regularly recurring work period that was set out in their employment contract. Id. The Ninth Circuit has also determined that the way to adopt a work period is to simply implement one. See Adair, 185 F.3d at 1062. (“Indeed, the case law on this point reveals that it is not the records kept, but the cycle of days actually worked that is controlling.”). The Tenth Circuit has also relied on Birdwell for the proposition that an employer has established a work period as long as its employees “work a regularly recurring cycle of between 7 and 28 days.” Spradling v. City of Tulsa, 95 F.3d 1492, 1505 (10th Cir. 1996) (quoting Birdwell, 970 F.2d at 806).

The First, Fifth, and Seventh Circuits all affirm this sensible analysis: a work period can be established through implementation. Martin v. Coventry Fire Dist., 981 F.2d 1358 (1st Cir. 1992) (awarding damages to plaintiffs, but applying § 207(k), not § 207(a)); Singer v. City of Waco, 324 F.3d 814 (5th Cir. 2003) (holding that the city could establish a 207(k) work period by following one); Barefield v. Vil. of Winnetka, 81 F.3d 704 (7th Cir. 1996) (holding that no declaration of intent is necessary so long as plaintiffs actually work a 28-day schedule).

Thus, the weight of circuit authority holds that an employer establishes a work period within the meaning of § 207(k) simply by establishing a work period. Despite his assertions to the contrary, Plaintiff’s own complaint alleges that he works on an 8-day, recurring schedule: “Plaintiff[ ] … [is] required by Defendant to work an eight (8) day schedule consisting of two (2)  nine (9) hour day shifts, and two (2) fifteen (15) hour night shifts followed by (4) days off.” (Am. Compl. ¶ 14 (emphasis added).) Consequently, taken as true, Plaintiff admits the essential element of the defense: that his employer has established an 8-day work period and therefore he is not entitled to overtime pay under the Labor Act until he works 61 hours in that 8-day period. See 29 U.S.C. § 207(k); see also Adair, 185 F.3d at 1059-60.

Note that this opinion (and those of some other courts) conflates two terms: “work schedule” and “work period.” The former term refers to the days-on/days-off schedule of employee; the latter term describes the beast that must be “established” by the employer to take advantage of the Section 7(k) exemption under the FLSA. I’m not saying that those two terms can’t mean the same thing; they obviously can. But there should be some analysis of why, from a statutory and regulatory standpoint, they mean the same thing.

Foley v. City of Buffalo, 2011 WL 3176455 (W.D.N.Y. 2011).