Town’s Forgotten Unenforced Memo Sufficient To Establish Partial Overtime Exemption Under Flsa.

Most employees, public and private, are entitled to overtime compensation under the Federal Labor Standards Act (FLSA) for every hour actually worked beyond 40 hours in a seven-day period. As another needless reminder of the second-class status of police officers and firefighters, Congress permits public safety employers to pay less overtime so long as the employer adopts a “partial overtime exemption,” under the FLSA (commonly known as a “§207(k)” work period,” in reference to the relevant section of the Act). Where a public safety employer lawfully adopts a §207(k) work period, police officers may not be entitled to FLSA overtime unless they work 171 actually hours in a 28-day work period, while firefighters may not receive FLSA overtime until they actually work 212 hours within that same period. Considering that paid leave time (sick, vacation, etc) does not count toward the 171 or 212 hours, public safety officers are functionally denied the benefits of the FLSA through this exemption.

As a credit to the strength of union solidarity and collective action, most labor contracts provide overtime compensation in more circumstances than the minimum required by the FLSA. However, the FLSA overtime rate, when applicable, frequently is more generous than labor contract rates, because the FLSA rate must include many differentials, stipends, etc. That’s why the issue of whether an employer properly adopted a §207(k) work period is the most critical piece of FLSA litigation involving police and firefighters. Sandulli Grace, P.C. (on behalf of its client the Boston Police Patrolmen’s Association, Inc.) won a landmark decision , when the Labor Relations Commission (now the Commonwealth Employment Relations Board), ruled that the voluntary adoption of a partial overtime exemption under §207(k) is a mandatory subject of bargaining and cannot be unilaterally implemented by the employer. The City of Boston has appealed this decision, and it is now pending before the Supreme Judicial court.

In O’Brien v. Town of Agawam (on which Sandulli Grace, PC, while not directly involved. consulted on the briefs), the U.S. Circuit of Court of Appeals ruled that the §207 work period does not apply in the case of a 4-and-2 schedule, absent an affirmative adoption of this partial overtime exemption by the employer. In O’Hara v. Menino, Sandulli Grace leveraged the O’Brien decision to impose damages against the City of Boston, based upon a 40-hour work period. In neither case did the employer purport to affirmatively adopt a valid §207(k) work period.

We now are seeing cases litigating whether and when an employer lawfully adopted the partial overtime exemption. In Calvao v. Framingham, (July 3, 2008) , a class action involving Framingham police officers, the Federal Trial Court in Massachusetts affirmed that a §207(k) exemption applies only if the employer adopts an applicable work period (or there exists a regular, recurring work period consistent with §207(k), AND it takes affirmative steps to implement this period). In Calvao, the Court ruled that a Town Administrator’s memo adopting a period sent to the Police and Fire Chiefs and Town Counsel was sufficient to adopt a period, even though the former Town Counsel and Administrator had no memory of the memo and the work period was inconsistent with the terms of the collective bargaining agreement and Town Bylaws. Finally, the Court suggests that an employer adequately implements a §207(k) work period, simply by distributing the memorandum periodically and filing it in relevant places, even if the employer apparently never actually complied with the memo or applied a §207(k) work period.

The Calvao decision was issued by a federal trial judge and may be appealed to the U.S. First Circuit Court of Appeals. It also is possible for another federal trial judge in Massachusetts to adopt a different interpretation of the law on the same issue. (Massachusetts federal trial judges have issued differing interpretations of FLSA before).

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