March 26, 1998
Updated October 31, 2016
You have the following question: Do E-911 dispatchers qualify for the 207(k) exemption for the purpose of working them 43 hours a week before they are eligible for overtime compensation? Presently they work 36 hours per week. Under the facts you related to me, the answer is no.
As I understand those facts, the E-911 dispatchers are not police officers or fire fighters; their jobs are simply to answer and dispatch appropriate assistance with respect to emergency calls.
The 207(k) exemption generally permits a government to work fire fighters 53 hours, police officers 43 hours, during a seven day work period before those employees are entitled to overtime compensation. Your question is actually whether the dispatchers are law enforcement officers for the purposes of the 207(k) exemption, but I will address your question with respect to both law enforcement officers and fire fighters.
Under 29 C.F.R., sec. 553.211(a), police officer for the purposes of the 207(k) exemption. is “any employee...in law enforcement activities.” That phrase applies to an employee:
(1) who is a uniformed or plainclothes member of a body of officers and subordinates who are empowered by state statute or local ordinance to enforce laws designed to maintain public peace and order and to protect both life and property from accidental or wilful injury, and to prevent and detect crimes; and
(2) who has the power to arrest; and
(3) who is presently undergoing or has undergone or will undergo on-the-job training and/or a course of instruction and study which typically includes physical training, self-defense, firearm proficiency, criminal and civil law principles, investigative and law enforcement techniques, community relations, medical aid and ethics.
29 C.F.R., sec. 553.211(g), specifically provides that, “Not included in the term ‘employee in law enforcement services’ are the so-called ‘civilian’ employees of law enforcement agencies...who engage in such support activities as those performed by dispatchers, radio operators, apparatus and equipment maintenance and repair workers, janitors, clerks and stenographers.”
Under 29 C.F.R., sec. 553.211(a), the definition of “any employee in fire protection activities” for the purpose of the 207(k) exemption is similarly tight. It refers to any employee:
(1) who is employed by an organized fire department or fire protection district; and
(2) who has been trained to the extent required by state statute or local ordinance; and
(3) who has the legal authority and responsibility to engage in the prevention, control or extinguishment of a fire of any type; and
(4) who performs activities which are required for, and directly concerned with, the prevention, control or extinguishment of fires, including such incidental non-fire fighting functions as housekeeping, equipment maintenance, lecturing, attending community fire drills and inspecting homes and schools for fire hazards.
29 C.F.R., sec. 553.211(c), also provides that, “Not included in the term ‘employee in fire protection activities’ are the so-called ‘civilian’ employees of a fire department, fire district, or forestry service who engage in such support activities as those performed by dispatchers, alarm operators, apparatus and equipment repair and maintenance workers, camp cooks, clerks, stenographers, etc.”
Finally, the Department of Labor opined on September 28, 2006, in DOL Opinion Letterr FLSA2006-36, that "It is our opinion that the public safety dispatchers are entitled to overtime for all hours worked in excess of 40 in a workweek."
For those reasons, the E-911 dispatchers would not qualify either as law enforcement or fire fighting employees within the meaning of the 207(k) exemption, and are entitled to overtime compensation for all hours worked over 40 during the week, except, of course, those dispatchers who might be exempt from the Fair Labor Standards Act because they are executive, administrative, or professional employees.
Let me know if I can help you further in this or any other matter.
Sidney D. Hemsley
Senior Law Consultant