FLSA2004-11NA — Two employers and section 7(p)(1)

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

August 26, 2004 FLSA2004-11NA

Dear
Name*,

This is in response to your request for an opinion regarding the application of the Fair Labor Standards
Act (FLSA) to the District Attorney Offices and the
Name* under the Name*. You have provided a
sample
Name* contract.

Your letter states that some of the District Attorney Offices in the state have entered into a
Name*
contract with
Name* to expand enforcement coverage. The Name* contract is intended to supplement
regular duty enforcement for enhanced traffic safety.
Name* officers participate in the program on a
voluntary basis. You ask if Section 7(p)(1) of the FLSA applies to this employment situation.

Section 7(p)(1) provides a “special detail” exception to the usual rules on joint employment set forth in 29
CFR Part 791 (enclosed). This exception applies to fire protection and law enforcement employees of
public agencies who, at their own option, are employed on a special detail by a separate and independent
employer in fire protection, law enforcement or related activities.

The information you provided contains no evidence of an employment relationship between the Attorney
General Offices and the
Name* officers. Under the Name* program the selection of the Name* officers
is made by the
Name* Commander and the Name* officers at all times perform their normal duties and
remain under the direct authority and supervision of the local
Name* Commander or his designee. The
Name* provides all equipment, uniforms, vehicles, and gasoline. Further, the Name* contract indicates
that the funding provided to the
Name* by the District Attorney Offices “shall in no way be construed as a
contract of employment between them and individual Troopers.” As we indicated in a June 20, 1986
opinion letter (copy attached) dealing with an analogous situation, the troopers’ work in question “is
merely an extension of their normal duties”.

As the funding by a District Attorneys Office does not create a contract of employment between that office
and the individual officers, the officers remain at all times employees of the
Name* . As the Name*
officers are not ever in an employment relationship with the District Attorney, Section 7(p)(1) of the FLSA -
- which requires two separate and independent (joint) employers -- will not apply to the
Name* program.

This opinion is based exclusively on the facts and circumstances described in your request and is given
on the basis of your representation, explicit or implied, that you have provided a full and fair description of
all the facts and circumstances which would be pertinent to our consideration of the question presented.
Existence of any other factual or historical background not contained in your request might require a
different conclusion than the one expressed herein. You have represented that this opinion is not sought
by a party to pending private litigation concerning the issued 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 the above is responsive to your inquiry.

Sincerely,

Barbara R. Relerford
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).
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