Special Overtime Rules for Police Officers

Special provisions exist to allow public sector employers flexibility around overtime for police officers, but most educational entities do not apply them in an effort to remain competitive in the market.

The Fair Labor Standards Act (FLSA) provides special provisions to public sector employers for determining overtime for certain emergency response and public safety personnel such as law enforcement. Police officer is typically the only such job found in school districts that meets the special rules below.

Partial Overtime Provision

A public entity employing fewer than five police officers may exempt them from the overtime pay requirements of the FLSA. This applies only to commissioned peace officers certified under the Texas Commission on Law Enforcement (TCOLE), not security guards. Officers may be paid a salary, no less than minimum wage for all hours worked, but are not entitled to overtime premiums (29 C.F.R. §553.200). They are still required to complete a timesheet like all other nonexempt employees and are subject to minimum wage requirements.   

Regardless of part- or full-time status, all police officers employed are included in the count for determining this overtime exemption provision.  For example, if an employer has two full-time commissioned peace officers and two part-time officers, the entity is considered to employ four officers, and all are exempt from the overtime provision. If a chief of police is also employed, the entity is considered to employ five officers and the partial exemption does not apply to officers who do not meet one of the exemption tests. However, the chief and other ranking officers (e.g., lieutenant) may be classified as exempt if they meet the salary threshold and one of the exemption tests (e.g., executive).

When five or more police officers are employed, those not meeting an exemption test must be compensated for all hours worked and paid overtime through either:

• One and one-half times their regular rate of pay
• Compensatory time off at one and one-half hours off for each overtime hour worked

Work Period Provision

The FLSA also provides a partial exemption from overtime pay requirements for police officers employed on a work period basis. A public employer has the option of basing overtime on a work period rather than the 40-hour workweek. This alternative work period is a pre-established and regular recurring period of at least seven but less than 28 consecutive days. (29 C.F.R. 553.201). The length of the work period determines the number of hours after which the police officer is due overtime. Overtime compensation is required when the ratio of the number of hours worked to the number of days in the work period exceeds the ratio of 171 hours to 28 days (29 C.F.R. 553.230).

For example, when a 7-day work period is adopted, police officers earn overtime pay after they have worked 43 hours. Although any number of days between seven and 28 can be used to define the work period, most public employers choose a multiple of seven. The most common alternative work periods are:

Compensatory Time

Additionally, the FLSA provides law enforcement personnel accrual of up to 480 hours of compensatory time as opposed to the 240-hour limit for other employees (29 C.F.R. §553.21).

Strategy

While these special provisions exist and are intended to provide greater staffing flexibility and cost control measures for public employers, most don’t apply them for various reasons. Primarily because they, like other employers, need to be more competitive in recruitment and retention efforts given the tight labor market nationwide. Strategies public employers use to remain competitive and control costs include:

• Pay competitive wages for all staff within resource limits
• Pay overtime premiums to nonexempt officers for all hours worked utilizing the standard 40-hour workweek
• Limit the number of compensatory hours that can be accumulated to less than 240 hours to better manage appropriate levels of employee coverage for work schedules and control costly future payout obligations