(a) Section 7(p)(1) makes special provision for fire protection and law enforcement employees of public agencies who, at their own option, perform special duty work in fire protection, law enforcement or related activities for a separate and independent employer (public or private) during their off-duty hours. The hours of work for the separate and independent employer are not combined with the hours worked for the primary public agency employer for purposes of overtime compensation.
(b) Section 7(p)(1) applies to such outside employment provided (1) The special detail work is performed solely at the employee's option, and (2) the two employers are in fact separate and independent.
(c) Whether two employers are, in fact, separate and independent can only be determined on a case-by-case basis.
(d) The primary employer may facilitate the employment or affect the conditions of employment of such employees. For example, a police department may maintain a roster of officers who wish to perform such work. The department may also select the officers for special details from a list of those wishing to participate, negotiate their pay, and retain a fee for administrative expenses. The department may require that the separate and independent employer pay the fee for such services directly to the department, and establish procedures for the officers to receive their pay for the special details through the agency's payroll system. Finally, the department may require that the officers observe their normal standards of conduct during such details and take disciplinary action against those who fail to do so.
(e) Section 7(p)(1) applies to special details even where a State law or local ordinance requires that such work be performed and that only law enforcement or fire protection employees of a public agency in the same jurisdiction perform the work. For example, a city ordinance may require the presence of city police officers at a convention center during concerts or sports events. If the officers perform such work at their own option, the hours of work need not be combined with the hours of work for their primary employer in computing overtime compensation.
(f) The principles in paragraphs (d) and (e) of this section with respect to special details of public agency fire protection and law enforcement employees under section 7(p)(1) are exceptions to the usual rules on joint employment set forth in part 791 of this title.
(g) Where an employee is directed by the public agency to perform work for a second employer, section 7(p)(1) does not apply. Thus, assignments of police officers outside of their normal work hours to perform crowd control at a parade, where the assignments are not solely at the option of the officers, would not qualify as special details subject to this exception. This would be true even if the parade organizers reimburse the public agency for providing such services.
(h) Section 7(p)(1) does not prevent a public agency from prohibiting or restricting outside employment by its employees.
Notes of Decisions
Specht v. City of Sioux Falls, 639 F.3d 814 (8th Cir. 2011).
· cites it 8× “Discussion The SFFR, firefighters assert that the district court misinterpreted the plain language of the governing regulation, 29 C.F.R. § 553.227 (a), which states that the special detail exemption applies “during their off-duty hours.”
Nolan v. City of Chicago, 125 F. Supp. 2d 324 (N.D. Ill. 2000).
· cites it 6× “§ 207 (p) and 29 C.F.R. § 553.227 (a). (StipJ 11). 25. Gregory Russ is the Chief of Policy Development for the CHA.”
Barajas v. Unified Gov't of Wyandotte Cnty., 87 F. Supp. 2d 1201 (D. Kan. 2000).
· cites it 3× “” 4 29 C.F.R. § 553.227 (b). If both *1206 prongs are satisfied, the exemption applies, and the hours worked for two employers may not be combined when assessing the amount of overtime compensation to which an employee is entitled.”
United States v. City of New Orleans, 731 F.3d 434 (5th Cir. 2013).
· cites it 2× “§ 207 (p)(l) and 29 C.F.R. § 553.227 (d): (p) Special detail work for fire protection and law enforcement employees; occasional or sporadic employment; substitution.”
Walter Powers v. City of New Orleans, 783 F.3d 570 (5th Cir. 2015).
“29 C.F.R. § 553.227 (a), (d) (explaining that police detail work performed for a “separate and independent employer” does not count as hours worked for the municipality for purposes of overtime compensation under the Fair Labor Standards Act even though the municipality may…”
Clark v. City of Fort Worth, 800 F. Supp. 2d 781 (N.D. Tex. 2011).
· cites it 2× “” 29 C.F.R. § 553.227 (b). The regulations further provide that: (d) The primary employer may facilitate the employment or affect the conditions of employment of such employees.”
United States v. City of New Orleans, 947 F. Supp. 2d 601 (E.D. La. 2013).
“§ 207 (p)(l); 141 see also 29 C.F.R. § 553.227 (d) (providing that law enforcement agencies can “select the officers for special details from a list of those wishing to participate, negotiate their pay, and retain a fee for administrative expenses” as well as require the detail…”
Johnson v. Unified Gov't of Wyandotte Cnty./Kansas City, 127 F. Supp. 2d 1181 (D. Kan. 2000).
· cites it 5× “This regulation uses the plural form of “concerts” and “events,” thus indicating to the court that the DOL does contemplate that a “special detail” can include events that occur more than one time. The DOL’s treatment of the special detail exemption in informal opinion letters…”
Johnson v. Unified Gov't. of Wyandotte Cty., 127 F. Supp. 2d 1181 (D. Kan. 2000).
· cites it 5× “This regulation uses the plural form of "concerts" and "events," thus indicating to the court that the DOL does contemplate that a "special detail" can include events that occur more than one time. The DOL's treatment of the special detail exemption in informal opinion letters…”
— 29 C.F.R. § 553.227(b) — 1 case
— 29 C.F.R. § 553.227(c) — 1 case
— 29 C.F.R. § 553.227(d) — 1 case
— 29 C.F.R. § 553.227(e) — 1 case
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