FLSA Under Attack

by Dennis Slocumb

The Fair Labor Standards Act is critical to law enforcement professionals everywhere. It ensures that we get paid for the work we do, or for the hours that we perform our duties. "Police work is not my hobby, its my job, I get paid for it", as an old friend used to say. Today, the average American worker puts in about 52 hours a week. The police are no exception, particularly during times of unexpected catastrophe. Public safety employees, by the very nature of their jobs, are subject to working long hours and at the same time put at greater personal risk by performing their duties when exhausted.

The Fair Labor Standards Act, which was written in 1934, was never about pay, it was about hours. The motivation behind the legislation was to ensure that if there was enough work available to require more than 40 hours of work, an employer should hire additional workers. If he did not, he was penalized. One of the penalties was the requirement that he pay overtime. That intent has been under attack by employers ever since. The prevalent philosophical view of the proponents of changing present FLSA applications, is that the act is about money. It is easy to understand how public employers would benefit from being able to exempt public safety personnel from FLSA overtime mandates. The negative impact on all of us in this profession is likewise easy to envision.

One of the proposals presently being entertained would include a salary level for exemption so that anything under a cap would be governed by FLSA rules. Those making more would be exempt. A similar exemption exists for computer programmers and is set at 6.5 times the minimum wage, or about $60,000 dollars. A comparable cap would impact many public safety professionals across the nation.

Another of the test to exempt public safety managers and supervisors is based on the type and percentage of work performed. Simplified, if the work is more than 50% administrative or supervisorial, the employee can be considered exempt. There are efforts to change that also, requiring that even a 10% investment in administrative or supervising duties would make an employee exempt.

Police agencies around the country operate with less than their full compliment of manpower. In some cases it is due to recruiting problems, and in other cases it is advantageous to management, giving them greater staffing flexibility Employee organizations generally benefit from the practice as public safety members can supplement their salaries with overtime.

What appears to be brewing in these changes is the notion that management can retain their personnel shortages and the flexibility they enjoy, and supplement their staffing with employees on overtime without the burden of paying for the exercise.

This is not a new attack on FLSA. Last year House Resolution 1602 was introduced which would have allowed employers to give "bonuses" which would not count towards regular rate of pay for the purposes of calculating overtime. This bill would have allowed the employer to determine which part of an employees pay was considered an "incentive bonus" for that purpose. The results of which would have been to give the employer the right to declare all pay over and above minimum wage as a "bonus". While numerous proponents representing employers and manufacturers spoke in favor of the bill, IUPA was the only voice there in opposition. The bill is not currently active.

Much of what IUPA does at the national level is low key. Certainly in a Republican administration, the emphasis will sometimes be to keep what we have won as much as it will be to enhance our rights, benefits and working conditions.

We are here and we are vocal in the advocation and defense of law enforcement officers issues. The issues debated in Washington daily could have an immediate, drastic and lasting impact on you and your members. We will keep you abreast of these issues.

Dennis Slocumb is the Vice President of the International Union of Police Associations

Washington Report