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June 18, 2014

Re: Important Police/Fire Wage and Hour Decision

Dear Mayor,

The Third Circuit Court of Appeals issued a precedential decision (Rosano, et. al. v. Township of Teaneck, Case No. 13-1263) on June 10, 2014 which benefits municipalities.  The case concerns wage and hour issues related to employees engaged in law enforcement and fire protection activities.  It was one of first impression for the court involving the establishment of a “work period” for public agencies’ police and fire personnel under section 207(k) of the Fair Labor Standards Act (“FLSA”). The term “work period” will be discussed below.

The general rule for overtime under the FLSA is that employees receive time and one-half their regular rate of pay for all hours worked beyond forty (40) hours in a given work week.  However, the FLSA recognizes that those engaged in law enforcement or fire protection activities work non-traditional schedules that do not equate with the standard forty (40) hour work week.  As such, Section 207(k) of the FLSA contains a partial exemption from the general overtime provisions and permits public agencies to establish a “work period” that lasts from 7 to 28 days for such employees which increases the 40 hour threshold for overtime liability.  The regulations define the work period “as any established and regularly recurring period of work.”

In the Rosano case, the Third Circuit considered what must occur for the work period to be established and regularly recurring to satisfy the 207(k) exemption.  The Court determined that the intent of the Township to adopt the work period was not needed.  Instead, the Township simply complied with their regularly, recurring schedules set forth in their collective negotiations agreements of either 7 or 9 days.  In such cases, under the 207(k) exemption, an officer would have to work greater than 43 hours before receiving overtime pay under a 7 day work period and 55 hours for those who worked the 9 day regularly, recurring schedule before overtime was due.

Additionally, the Court denied the officers’ claim for “donning and doffing” their uniforms.  The reasoning used by the Court was that there was a custom of not paying officers for such time under the parties’ collective negotiations agreement for “donning and doffing” time and the “vast majority” of the time alleged was spent changing clothes.  Accordingly, the “donning and doffing” claims were denied.

This decision will help municipalities to contain overtime costs.  However, whether your municipality has the ability to take advantage of the 207(k) exemption is something that should be reviewed with your labor counsel.

Should you have any questions, please contact New Jersey League of Municipalities Labor Counsel, Joseph M. Hannon, Esq. at jhannon@genovaburns.com  or 973-535-7105.

Very Truly Yours,

 

William G. Dressel, Jr.
Executive Director

 

 

 

 

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