In two cases, Boston police officers and detectives sued the City for a variety of Fair Labor Standards Act (FLSA) violations. After the City’s liability in the cases was established, a key issue became whether the City was entitled to the benefits of a Section 7(k) exemption under the FLSA.
The “default” condition under Section 207(a) is that the basic overtime threshold is 40 hours of work in a week. Section 207(k) grants an exemption to public agencies engaged in fire protection or police enforcement activities if they “establish” a work period of between seven and 28 days in length.
Section 207(k) work periods have higher overtime thresholds than a 40-hour week. For example, the seven-day Section 207(k) work period, which the City of Boston was claiming, calls for the payment of overtime after 43 hours of work; the 28-day work period for law enforcement personnel does not require overtime payments until the employee has worked more than 171 hours.
The central issue before the Court hearing the two cases was what steps an employer must take to “establish” the 207(k) exemption. The City argued that it was automatically entitled to the exemption.
The Court rejected the City’s position. The Court found that while it is not a “high hurdle” for an employer to establish a Section 207(k) exemption, it must do something to establish the exemption. That something, the Court concluded, was to take steps to “affirmatively adopt” a Section 207(k) work period.
The Court found that the City had done nothing to avail itself of the Section 7(k) exemption. Not only did the City stipulate that it had not adopted a Section 207(k) work period, the City utilized a six-day work period (four days on and two days off) which would not be regularly recurring within seven to 28 days. Testimony in the case reflected that the City was aware of the requirements of Section 207(k), but still took no steps to establish the exemption.
The Court also found that the City’s conduct was not reasonable or in good faith. Thus, it concluded that the officers and detectives should be entitled to “liquidated” or double damages. Completing the trifecta, the Court concluded that the City’s violation of the FLSA was willful, entitling the officers and detectives to the benefit of a three-year statute of limitations instead of the FLSA’s usual two-year statute.
O’Hara v. Menino, 2004 WL 763874 (D.Mass. 2004); Harris v. City of Boston, 2004 WL 763887 (D.Mass. 2004).