FLSA2006-13 — Police officers who work for a third party servicing a city-owned coliseum and section 7(p)(1)

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

April 28, 2006
FLSA2006-13
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Dear Name*:

This is in response to your letter inquiring whether police officers who work special details for a third party
entity servicing a city-owned coliseum qualify for the Fair Labor Standards Act (FLSA) section 7(p)(1)
partial overtime exemption. It is our opinion that the special detail qualifies under section 7(p)(1).

The City owns a municipal coliseum that hosts various activities throughout the year including basketball
games, concerts, and monster truck shows. Currently, the City uses off-duty sheriff deputies, who are
employed by the County, to provide security for these events. The City would like to enter into a service
contract with a private sector, for-profit employer located in another city that provides entertainment services
with expertise in crowd management, event staffing, and security for large spectator events at public
facilities. The third party contractor may employ off-duty City police officers for some of the security for the
events, as well as officers who are not employed by the City. You have requested an opinion regarding
whether and how the employment relationships would be affected if the City decides to provide workers’
compensation insurance for the officers while the third party at the coliseum employs the officers. The City
currently provides workers’ compensation for officers who work for a third party entity on non-city property
and are injured in the course of their law enforcement duties for the third party.

FLSA section 7(p)(1) (copy enclosed) provides that if a public employee engaged in law enforcement
activities voluntarily

agrees to be employed on a special detail by a separate or independent employer in fire protection,
law enforcement, or related activities, the hours such individual was employed by such separate and
independent employer shall be excluded by the public agency employing such individual in the
calculation of the hours for which the employee is entitled to overtime compensation under this
section if the public agency—

(A) requires that its employees engaged in fire protection, law enforcement, or security
activities be hired by a separate and independent employer to perform the special
detail,
(B) facilitates the employment of such employees by a separate and independent
employer, or
(C) otherwise affects the condition of employment of such employees by a separate and
independent employer.

Under 29 C.F.R. § 553.227(e) (copy enclosed), “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.” We assume for purposes of this inquiry that the officers are employed
by the third party contractor solely at their option and are not coerced into such employment by the City.

The question then remains whether the City and the third party are separate and independent of each other.
The Department’s regulations provide a list of actions the City may take regarding the third party
employment without affecting this determination, including maintaining a roster of officers who wish to
perform the special duty, selecting the officers for such detail, negotiating the officer’s pay, and retaining a
fee for administrative duties. 29 C.F.R. § 553.227(d). These principles are exceptions to the usual rules on
joint employment set forth in 29 C.F.R. Part 791. 29 C.F.R. § 553.227(f). See WH Opinion Letter August
27, 1990 (copy enclosed).

The City and the private third party contractor are separate legal entities. Furthermore, their dealings with
each other involving the officers are within the type of activity specifically allowed by FLSA section 7(p)(1)
and 29 C.F.R. § 553.227. Based on a review of the information provided, we believe that the City and the

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

third party contractor are separate and independent employers under § 7(p)(1). Therefore, the special detail
employment of City police officers by the third party contractor need not be combined with the hours worked
by the police officers for the City in determining entitlement to overtime compensation.

The fact that the City would provide the officers workers’ compensation during third party employment does
not alter this outcome. See WH Opinion Letter May 28, 1998 (copy enclosed). Here, the City is self-insured,
and its decision to extend workers’ compensation coverage to its off-duty officers does not undermine the
separate status of the City and the private third party employer with regard to these services. Therefore, the
City may provide workers’ compensation for the officers while they are providing security for a third party
without losing the section 7(p)(1) partial overtime exemption.

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 issue 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,

Alfred B. Robinson, Jr.
Acting Administrator

Enclosures:
FLSA § 7(p)(1)
29 C.F.R. § 553.227
WH Opinion Letters August 27, 1990 and May 28, 1998

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

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