From: Stokes, Richard L
Sent: Monday, September 17, 2012 1:05 PM
Subject: RE: Emergency Personnel Yearly Physicals/OT Pay questions

I hope things are still going well for you. It appears that they are keeping you pretty busy.

1. Yes, it is common for Police and Fire Departments to require annual physicals. Some even provide/require the officers to spend time on their physical fitness. The biggest thing to look out for is making sure the tests are job related. Those employees getting a doctors excuse from the annual fitness testing need to get a statement from their doctor indicating that they can perform the essential functions of the job otherwise they need to be reassigned or terminated. If they cannot take the annual physical due to a disabling condition, then the city needs to know that so you can determine if the disability can be accommodated. (29 U.S.C. § 203(y)); (29 C.F.R. § 553.210(a))

2. You did not indicate which 80 hour positions in question but you may have a problem with them. The 207(k) exemption applies only to those employees who are police officers, detectives, investigators, inspectors, park rangers, firefighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers, and similar employees regardless of rank or pay level who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of laws; performing surveillance; pursing, restraining and apprehending suspects; detaining or supervising suspects and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work.

“Not eligible for the 207(k) exemption are civilian police department employees who engage in support activities such as dispatchers, radio operators, apparatus and equipment maintenance and repair workers, janitors, clerks and stenographers” (Wage and Hour Opinion, August 21, 1987). “Also not qualifying for the 207(k) exemption are civilian employees of fire departments, fire districts or forest services, such as dispatchers, alarm operators, mechanics, camp cooks or stenographers (29 C.F.R. § 553.210(c)).

If any of your 80 hour employees earned any overtime during a forty hour work week, then the city owes them overtime.

I hope this information is helpful. Feel free to contact me if you have questions or I can be of any further assistance.
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Richard L. Stokes, IPMA-CP, PHR
Office Manager/Human Resources Consultant
Executive Director - TN Chapter IPMA-HR
The University of Tennessee
Municipal Technical Advisory Service
226 Capitol Blvd. Bldg., Suite 606
Nashville, TN 37219
615/532-6827 (office)
615/532-4963 (fax)

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