FROM: Sid Hemsley, Senior Law Consultant
DATE: October 21, 2002
RE: Overtime Compensation for Training Time for Police Officers
This memorandum sets out what appear to be the main arguments that can be made by local governments in Tennessee on one hand, and by the U.S. Department of Labor (DOL) on the other, relative to the question of whether overtime accrued by police officers while they attend basic training at the Tennessee Law Enforcement Training Academy is overtime compensable under the Fair Labor Standards Act (FLSA). It assumes that the municipal governments interested in this question have police departments are subject to the FLSA, and that those governments have elected to come under the 207(k) exemption. Under the 207(k) exemption, local governments are generally allowed to require their police officers to work a prescribed number of hours beyond 40 a week before those police officers are entitled to overtime pay at the time-and-a-half rate.
The FLSA does not directly address the question of whether overtime accrued by municipal police officers during training of any kind is compensable overtime at the rate of time-and-one-half, but the DOL has adopted regulations on this subject. It is adamant that under those rules the answer to that question is yes, where the state or local government mandates the training, and governs the time and place of training and the course work.
The main arguments cities can make:
1. DOL does not have the authority to issue regulations on the subject of what is, and what is not, compensable overtime under the FLSA.
My view is that DOL has the best of this argument if for no other reason than that the regulations of U.S. administrative agencies are almost always upheld. The U.S. Supreme Court has found a few dramatic exceptions to that rule in the past several years, but those cases involved rules issued by U.S. administrative agencies that were much more questionable than those involving the DOL regulations in question.
2. The DOL regulations outline what training qualifies for compensable overtime, and what training does not qualify for compensable overtime, and under those regulations themselves, basic training at the Tennessee Law Enforcement Training Academy is not compensable overtime.
As far as I can determine, there are no federal or state cases on the interpretation of DOL rules governing the compensability of overtime for 207(k) employees when the training is mandated by state or local law, and where the training schedule and course work is dictated to the trainees. But this argument does find some support in 29 C.F.R. § 553.226, which says:
(a) The general rules for determining the compensability of training time under the FLSA are set forth in §§ 785-27 through 785-32 of this title.
(b) While time spent in attending training required by an employer is normally considered compensable hours of work, following are situations where time spent by employees of State and local governments in required training is considered to be noncompensable: [There follows two kinds of noncompensable training as follows:] attendance outside of regular working hours at specialized or follow-up training:
(1) “...which is required by a law for certification of public and private sector employees within a particular governmental jurisdiction (e.g. certification of public and private emergency rescue workers)...”
(2) “...which is required for certification for employees of a governmental jurisdiction by law of a higher level of government (e.g. where a State or county law imposes a training obligation on city employees)...” [Emphasis is mine.]
(3) Time spent in the training described in paragraphs (b)(1) or (2) of this section is not compensable, even if all or a part of the costs of the training is borne by the employer.
(c) Police officers..., who are in attendance at a police or fire academy or other training facility are not considered to be on duty during those times when they are not in class or at a training session, if they are free to use such time for personal pursuits. Such free time is not compensable.
At first glance the two kinds of noncompensable training under § 553.226(b)(1) and (b)(2), cover the training of local police officers at a police academy. Training at the Tennessee Law Enforcement Academy is required by the state under Tennessee Code Annotated, § 38-8-101 et seq., for the certification of police officers, and, arguably at least, the overtime portions of such training reflect training outside regular working hours. But as we shall see immediately below, the DOL has interpreted (b)(1) and (2) making the overtime accrued by 207(k) employees for those two kinds of training narrowly. In addition, § 553.226(c) says that police officers attending a training facility but who are not actually in a class or a training session are not considered on duty if they are free to engage in personal pursuits. That provision can be read to imply that when they are actually attending class or training sessions they are on duty for purposes of the FLSA.
The DOL’s Arguments: Under DOL regulations:
1. Law enforcement officers engaged in training are engaged in “law enforcement activities.” 29 C.F.R § 553.211(c) defines a law enforcement employee engaged “in law enforcement activities” as one who is presently undergoing or has undergone or will undergo on-the-job-training and/or a course of instruction and study which includes [there follows a list of training activities typical for law enforcement officers].
2. Police officers attending a police academy or other training facility when required by the employing police department “are engaged in “law enforcement activities.” 29 C.F.R. § 553.214 says:
The attendance at a bona fide fire or police academy or other training facility, when required by the employing agency, constitutes engagement in activities under section 7(k)....If the applicable tests are met, then basic or advanced training is considered incidental to, and a part of, the employee’s fire protection or law enforcement activities.
3. Training is exempt from the overtime provisions of the FLSA, only if it meets all four conditions of 29 C.F.R. § 785.27, which says:
Attendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following four criteria are met:
(a) Attendance is outside of the employee’s regular working hours;
(b) Attendance is in fact voluntary;
(c) The course, lecture, or meeting is not directly related to the employee’s job; and
(d) The employee does not perform any productive work during such attendance.
In addition 29 C.F.R. § 785.28 says:
Attendance is not voluntary, of course, if it is required by the employer. It is not voluntary in fact if the employee is given to understand or led to believe that his present working conditions or the continuance of his employment would be adversely affected by nonattendance.
This argument would appear to be the heart of DOL’s position with respect to overtime for local government police officers attending the Tennessee Law Enforcement Academy. Such overtime is compensable because is does not comply with all four conditions of § 785.27.
The first condition is that attendance must be outside of the employee’s regular working hours. It can be argued that police officers attending the Tennessee Law Enforcement Training Academy attend the academy outside their normal working hours, but that argument may not be solid. Generally, most law enforcement officers work flexible hours; they do not work a 9 to 5 job. Even if they did, the phrase “outside of normal working hours,” can easily be interpreted to mean the hours an employee is not scheduled to work. Arguably, the hours a police officer attends mandatory training are his “normal working hours” for the purposes of this regulation.
The second condition is that attendance at such training be in fact voluntary. It seems certain that under Tennessee Code Annotated, § 38-8-101 et seq. the training of police officers is not voluntary. It is a part of the certification process for police officers, and both the training and the certification are a mandatory precondition to the continued employment of police officers.
The third condition is that the course, lecture or meeting must not be directly related to the police officer’s job. It seems impossible to argue that the curriculum of the Tennessee Law Enforcement Training Academy for police officers is not directly related to their jobs.
The entire purpose of the training is to teach police officers to do their jobs.
In short, there is a good possibility that the overtime accrued by law enforcement officers during basic training at the Enforcement Training Academy does not meet three of the four conditions required for it to be noncompensable overtime.
DOL Letter Rulings
In several Letter Rulings DOL measured the training requirements against the above regulations to determine whether overtime in the course of that activity is compensable overtime. Two Letter Rulings are cited below:
Letter Ruling dated September 9, 1996: The question in that letter deals with child care employees involved in state-mandated training, buts its logic applies to police officers. With respect to the requirements in § 785.27 that the training must be voluntary in order for it to be noncompensable, the letter says:
Where an employer (or someone acting on his or her behalf or interest) either directly or indirectly requires an employee to undergo training, the employer controls the employee’s time. Attendance by the employee is thus not voluntary and is clearly hours of work.
However, where a state requires individuals to take training [Emphasis is in the letter.] as a condition of employment with any employer in the child care field...attendance at such training would be voluntary and this criterion met, provided the employer does not impose adaptational requirements on the employee, such as taking an additional course.
It is a different situation, however, where a State requires employers to provide training as a condition of the employer’s license to remain open for business–e.g. a day care center operator’s license is conditional upon all employees receiving a fixed number of hours of child care training each year. As the operator would typically require employees to attend such training, it would not be voluntary, and this criterion would not be met.
Letter Ruling dated September 29, 1999: This question was at issue:
Q.1. As a condition of employment, firefighters for County A just have current EMT (emergency medical training) certification. Although the certification is granted through the state, the state does not require the firefighters have the certification. However, since City A requires it, the training is not “voluntary.” Under these circumstances, must the EMT training that is required to maintain this certification be counted as hours worked if the training takes place during non-working hours?
A.1. No. While time spent in training required by an employer is normally considered compensable hours of work, attendance outside of regular working hours as specialized or follow-up training which is required by law for certification of employees of a governmental jurisdiction, does not constitute hours of work under the FLSA. See section 553.226 of Regulations, 29 CFR Part 553.
Weighing the costs
A municipality that pays at most several hundred, or even several thousand, dollars a year in overtime compensation to its police officers while they attend the police academy should probably weigh that cost against the cost of a law suit in this area.