FLSA2008-9NA — Jailers and section 7(k)

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

FLSA2008-9NA

May 30, 2008

Dear Name*:

This is in response to your request for an opinion regarding whether “jailers” employed
by your city qualify for the partial overtime exemption under section 7(k) of the Fair
Labor Standards Act (FLSA) as “law enforcement” personnel, which specifically
include “security personnel in correctional institutions.” 29 U.S.C. § 207(k).
∗
You state
that the jailers in question, despite lacking the power to make arrests, meet the criteria of
“security personnel in correctional institutions” as described in
29 C.F.R. § 553.211(f).
It is our opinion that the jailers, despite lacking the power to make arrests, are security
personnel in a correctional institution, and therefore qualify for the partial overtime
exemption of section 7(k).

The FLSA provides a partial overtime exemption for fire protection and law enforcement
personnel employed by public agencies on a “work period” basis. 29 U.S.C. § 207(k).
Section 7(k) states that “[n]o public agency shall be deemed to have violated subsection
(a) of this section [requiring the payment of overtime compensation] with respect to the
employment of any employee in fire protection activities or any employee in law
enforcement activities (including security personnel in correctional institutions)” if an
employee receives overtime compensation in accordance with the tours of duty described
in section 7(k). Id. Overtime guidelines for law enforcement personnel include
maximum hours standards (before overtime compensation is required) for work periods
between 7 and 28 consecutive days. See
29 C.F.R. § 553.230(b).

Section 553.211(a) of the regulations defines “any employee in law enforcement
activities” as

any employee (1) who is a uniformed or plainclothed member of a
body of officers and subordinates who are empowered by State statute or
local ordinance to enforce laws designed to maintain public peace and
order and to protect both life and property from accidental or willful
injury, and to prevent and detect crimes, (2) who has the power to arrest,
and (3) who is presently undergoing or has undergone or will undergo
on-the-job training and/or a course of instruction and study which
typically includes physical training, self-defense, firearm proficiency,

∗
Unless otherwise noted, any statutes, regulations, opinion letters, or other interpretive material cited in
this letter can be found at www.wagehour.dol.gov.

criminal and civil law principles, investigative and law enforcement
techniques, community relations, medical aid and ethics.

29 C.F.R. § 553.211(a).

Section 553.211(f) of the regulations, in turn, specifically interprets the statutory term
“security personnel in correctional institutions.” Unlike the general “law enforcement”
definition contained in section 553.211(a), the specific description of “security personnel
in correctional institutions” in section 553.211(f) does not require that the employee have
the power to make arrests in order to come within the section 7(k) partial exemption.
Rather, “[e]mployees of correctional institutions who qualify as security personnel for
purposes of the section 7(k) exemption are those who have responsibility for controlling
and maintaining custody of inmates and of safeguarding them from other inmates or for
supervising such functions . . . .” 29 C.F.R. § 553.211(f). Therefore, the jailers here
meet the definition of an “employee in law enforcement” under section 7(k).

This opinion is based exclusively on the facts and circumstances described in your
request and is given based on your representation, express or implied, that you have
provided a full and fair description of all the facts and circumstances that would be
pertinent to our consideration of the question presented. Existence of any other factual or
historical background not contained in your letter might require a conclusion different
from the one expressed herein. You have represented that this opinion is not sought by a
party to pending private litigation concerning the issues addressed herein. You have also
represented that this opinion is not sought in connection with an investigation or litigation
between a client or firm and the Wage and Hour Division or the Department of Labor.

We trust that this letter is responsive to your inquiry.

Sincerely,

Monty Navarro
Office of Enforcement Policy
Fair Labor Standards Team

* Note: The actual name(s) was removed to preserve privacy in accordance with 5
U.S.C. § 552(b)(7).