Yesterday, the United States Department of Labor issued a new set of final regulations interpreting various provisions of the Fair Labor Standards Act (“FLSA”). In 2008, the DOL had proposed revisions to its regulations. After a notice and comment period in 2008, the DOL has now issued its final regulations that take effect on May 5, 2011. Although there are several revisions to existing DOL regulations, two are of particular interest to public sector employers.
First, the DOL conspicuously did not change the regulations regarding compensatory time off. See 29 U.S.C. § 207(o)(5). The DOL has previously opined that an employer must permit an employee to use comp time on the day requested unless the employer can show the use of comp time by that employee would constitute an undue disruption to its operations. And the definition of what constitutes an undue disruption is even more onerous for public employers, especially public safety, as the DOL has opined that an employer cannot deny a request to use comp time merely because it would have to pay another employee overtime to backfill the position. The Sixth and Seventh Circuit Courts of Appeal, have recently agreed with the DOL’s interpretation.
However, the Ninth Circuit, which covers California, and the Fifth Circuit have explicitly rejected the DOL’s interpretation of the FLSA rules for use of compensatory time off as set forth in 29 C.F.R. § 553.25 and in DOL opinions. Both federal appellate circuits held that that an employer does not need to allow an employee to use accrued comp time on the specific day requested by the employee, but can instead honor the request by providing alternative dates within a reasonable time period after the request to use comp time is made.
Although the DOL had initially proposed changes to its regulations to bring them in line with the Ninth Circuit, the DOL changed its mind and decided to keep its existing regulations in light of the clear split in the federal appellate courts. However, the DOL expressed its belief that its regulations, namely 29 C.F.R. § 553.25, and the Sixth and Seventh Circuit cases were the correct interpretation of the law. The result of the DOL’s inaction is continuing confusion and threats of litigation over the use of comp time for public employers in many parts of the country that will only be resolved if the US Supreme Court decides to review the issue. However, California public employers can breathe easier and continue to follow the Ninth Circuit’s decision in Mortensen v. County of Sacramento, which permits them to define a reasonable window of time in which an employee may use comp time instead of permitting the employee to use comp time on the specific day demanded by the employee.
The second important aspect of the new regulations is the elimination of what had been a stumbling block in analyzing whether fire protection personnel qualified for 29 U.S.C. § 207(k) work schedules of between 7 and 28 days. The existing DOL regulations include a requirement that a public safety employee must spend no more than 20% of his or her time engaging in work that is not fire protection or law enforcement work. The revision to section 553.212 eliminates the 20% rule for fire protection personnel, but retains the rule for law enforcement personnel.
The DOL agreed with various court decisions that the 20% rule is obsolete for fire departments in light of the 1999 amendment to the FLSA, 29 U.S.C. § 203(y), which defined who is an “employee in fire protection activities.” Section 203(y) requires a fire department employee who is trained in fire suppression to have “responsibility” and “legal authority” to engage in fire suppression, but not does not require that the employee actually fight fires or engage in related activities for any particular percentage of time in order to qualify. Since medical work is a fire protection activity if performed by a trained firefighter, perpetuation of the 20% rule caused confusion and unnecessary litigation over who qualified for a 7(k) work period, as fire departments have evolved so that often a majority of the calls received are medical in nature. Although the 20% rule has been eliminated for fire protection personnel, public agencies must still ensure that law enforcement personnel do not spend more than 20% of their time performing non-law enforcement activities.