The following summary is based on an opinion of the U.S. Court of Appeals for the First Circuit, which is the appellate court for decisions of the U.S. District Court for the District of New Hampshire. Opinions of the First Circuit are binding on issues of federal law in New Hampshire.
The Fair Labor Standards Act (FLSA) was not made applicable to municipalities until Congressional action and protracted litigation in the 1970s and 1980s. Municipal officials expressed “grave concern” at the time due to the projected costs of compliance with FLSA overtime provisions, which entitle non-exempt employees to payment at a rate of one and one-half their regular wages for time worked in excess of 40 hours for a seven-day period. In response, Congress created a partial FLSA overtime exemption for law enforcement and fire protection personnel, 29 U.S.C. sec. 207(k), and the Department of Labor promulgated regulations to implement the exemption. To qualify for the exemption, the governmental employer must establish a qualifying work period. A “work period” may be from seven consecutive days to 28 consecutive days long. Fire protection personnel are due overtime under such a plan after 212 hours worked during a 28-day work period, while law enforcement personnel are due overtime after 171 hours worked in a 28-day period. This is prorated for work periods of more than seven and fewer than 28 days. Section 207(k) “accommodates the inherently unpredictable nature of firefighting and police work by permitting public employers to adopt periods longer than one week.”
In this case, the plaintiff police officers brought a class action suit against the Town for claimed overtime on the theory that the Town’s 24-day work period adopted in 1986 was defective because the Town had never expressly notified the police employees that the Town was adopting a qualifying work period. The work cycles under the police collective bargaining agreements during the period from 1986 to the present complied with the 24-day period. The trial court dismissed the suit, and the plaintiffs appealed to the First Circuit Court of Appeals. On appeal, the Court held that, even assuming the Town never specifically notified the police employees of the policy, the plaintiffs’ claims had no merit because neither the FLSA nor the regulations require any such direct notice of adoption of a 207(k) work period. “The Town was not required to notify plaintiffs that it had established a sec. 207(k) work period.”