What Does It Take To ‘Establish’ A Section 207(k) Exemption?

Section 207(k) of the Fair Labor Standards Act (FLSA) allows an employer to treat law enforcement and fire protection employees less generously than general employees. Under Section 207(k), an employer can “establish” a work period as an alternative to the usual workweek measure of overtime. The overtime thresholds for a work period are also longer than a 40-hour week; for firefighters, they are roughly equivalent to 53-hour weeks, while for law enforcement, they are roughly equivalent to 43-hour weeks.

A question arising from time to time in litigation is what it is an employer must do to “establish” the Section 207(k) exemption. In a case involving the Township of Teaneck, New Jersey, the federal Third Circuit Court of Appeals answered the question by effectively saying, “Not much.”

The Court found that “the exemption operates mainly to soften the impact of the FLSA’s overtime provisions on public employers by raising the average number of hours the employer can require employees to work without triggering overtime requirements. It also accommodates the inherently unpredictable nature of firefighting and police work by permitting employers to adopt work periods longer than one week.

“Before a public employer may qualify for the Section 207(k) exemption, however, two things must be true: (1) The employees at issue must be engaged in fire protection or law enforcement within the meaning of the statute and (2) the employer must have established a qualifying work period. The employer must demonstrate that the employee and/or employer come ‘plainly and unmistakably’ within the exemption’s terms.

“The only issue before us is whether the City established a qualifying work period. We note first that the text of Section 207(k) does not specify how an employer establishes a qualifying work period. However, one thing is quite clear – nothing in the language of the statute requires employers to express their intent to qualify for or operate under the exemption.

“The statute only requires the existence of a qualifying work period. Nothing more. We will, therefore, decline to adopt a rule that requires employers to clear a hurdle not provided for in the statutory text. Accordingly, we hold that employers seeking to qualify for the Section 207(k) exemption need not express an intent to qualify for or operate under the exemption. Employers must only meet the factual criteria set forth in Section 207(k).

“Turning to the merits of the instant appeal, the record clearly demonstrates that the City adopted a valid Section 207(k) work period. The Agreement provides, and the officers concede, that police officers work either a seven-day or a nine-day period on a regularly recurring basis. Indeed, the officers fail to even assert now that they do not work a seven-day or a nine-day schedule. The officers’ only contention is that the exemption does not apply because the City did not intend to do so, which we now conclude is irrelevant as to whether an employer meets the requirements of Section 207(k). Because neither party disputes that the Teaneck police officers are engaged in law enforcement within the meaning of the FLSA, and the record supports a finding that the officers work either a seven-day or a nine-day schedule on a regularly recurring basis, Tea-neck qualified for the Section 207(k) exemption.”

Rosano v. Township of Teaneck, 754 F.3d 177 (3d Cir. 2014).