Appeals court: No notice requirement under FLSA for overtime readjustment

The first circuit court of Appeals upheld the Dictrict court holding that under the Fair Labor Standards Act (“FLSA”), a city or town is not mandated to give notice to its public safety officers as a matter of federal law before the municipality takes advantage of a special statutory exemption for these officers from usual overtime requirements, 29 U.S.C. § 207(k).

On March 17, 2010 in DUARTE CALVAO, ET AL. v. TOWN OF FRAMINGHAM, No. 09-1648 The court found that nder the FLSA, employees other than public safety personnel are generally entitled to payment “at a rate not less than one and one-half times” their regular wages for any time worked in excess of forty hours in a seven day period. 29 U.S.C. § 207(a)(1). However, the partial exemption in § 207(k) set a higher threshold number of hours that public safety personnel can work in a twenty-eight day work period–-or a proportional number of hours in a shorter work period of at least seven days–-before these employees become entitled to overtime compensation. See id. § 207(k).

Section 207(k) reads in its entirety:

(k) Employment by public agency engaged in fireprotection or law enforcement activities.

No public agency shall be deemed to have violatedsubsection (a) of this section with respect to theemployment of any employee in fire protection activitiesor any employee in law enforcement activities (includingsecurity personnel in correctional institutions) if–

(1) in a work period of 28 consecutive days theemployee receives for tours of duty which in theaggregate exceed the lesser of (A) 216 hours, or(B) the average number of hours (as determined bythe Secretary pursuant to section 6(c)(3) of theFair Labor Standards Amendments of 1974) in toursof duty of employees engaged in such activities inwork periods of 28 consecutive days in calendaryear 1975; or

(2) in the case of such an employee to whom a workperiod of at least 7 but less than 28 days applies,in his work period the employee receives for toursof duty which in the aggregate exceed a number ofhours which bears the same ratio to the number ofconsecutive days in his work period as 216 hours(or if lower, the number of hours referred to inclause (B) of paragraph (1)) bears to 28 days,

compensation at a rate not less than one and one-halftimes the regular rate at which he is employed.

The work period at issue here falls under clause two.

In § 207(k), Congress set the maximum number of pre-overtime hours; it gave the Secretary of Labor authority to promulgate regulations establishing a lower ceiling. Id. § 207(k)(1)(B); see also O’Brien v. Town of Agawam , 350 F.3d 279, 290 n.20 (1st Cir. 2003). The Secretary did so in 1987, setting a limit for law enforcement personnel of 171 hours over a twenty-eight-day period, or the proportional equivalent over a shorter span of time. See 29 C.F.R. § 553.230. For a twenty-four-day work period, this ratio works out to approximately 147 hours, or about forty-three hours every seven days. Id. § 553.230(c).

Section 207(k) eases the burden of the FLSA’s overtime provisions on state and local employers two ways. The partial exemption provides for higher hourly standards before requiring the payment of overtime; further, it permits overtime hours to be computed over a workweek that may be longer than a forty-hour workweek and that the employer selects. As we explained in Agawam :

[Section 207(k)] raises the average number of hours the employer can require law enforcement and fire protection personnel to work without triggering the overtime requirement, and it accommodates the inherently unpredictable nature of firefighting and police work by permitting public employers to adopt work periods longer than one week. The longer the work period, the more likely it is that days of calm will offset the inevitable emergencies, resulting in decreased overtime liability.

350 F.3d at 290 (internal citations omitted); see also Garcia, 469 U.S. at 554 n.17 (citing § 207(k)’s limited public safety exemption as an illustration of Congress’s attention to “the special concerns of States and localities”); Avery v. City of Talladega, 24 F.3d 1337, 1344 (11th Cir. 1994) (“The work period concept was intended to ease the overtime burdens of certain public employers.”) (citing 52 Fed. Reg. 2012, 2024 (Jan. 16, 1987)); Martin, 981 F.2d at 1361.

Before a public employer may qualify for the limited public safety exemption, two things must be true: (1) the employees at issue must be engaged in fire protection or law enforcement within the meaning of the statute and (2) the employer must have established a qualifying work period. See Agawam , 350 F.3d at 290. In turn, the qualifying work period must be at least seven but not more than twenty-eight consecutive days. 29 C.F.R. § 553.224(a). Overtime need not be paid unless the number of hours worked exceeds ratios, different for police than for fire employees that are set forth in Department of Labor regulations. 29 C.F.R. § 553.230. There are other requirements that are not germane here.”


The court essentially says that there is no mandatory notification requirement for communities with regard to labor unions prior to taking advantage of the statute. There are likely issues that lie in the collective bargaining agreements however, that it likely touches upon that would result in mandatory negotiations.

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to
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