FLSA2008-11NA — Detention officers volunteering as reserve sheriff deputies and section 3(e)(4)(A)

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

FLSA2008-11NA

September 22, 2008

Dear Name*:

This is in response to your request for an opinion regarding the applicability of the Fair
Labor Standards Act (FLSA) to Adult Detention Officers wishing to volunteer as Reserve
Sheriff Deputies.

We affirm our position from our previous opinion letters that detention officers may not
volunteer for the same public agency as sheriff deputies under FLSA section 3(e)(4)(A)
∗

because “[p]ublic safety employees taking on any kind of security or safety function
within the same local government are never considered to be employed in a different
capacity.” 29 C.F.R. § 553.30(c)(3); Wage and Hour Opinion Letter FLSA2004-26NA
(Oct. 29, 2004); FLSA2004-25NA (Oct. 22, 2004).

If the two employers are not the same public agency, however, the Adult Detention
Officer is free to volunteer as a Reserve Deputy Sheriff. As indicated in 29 C.F.R.
§ 553.102(b), “[w]hether two agencies of the same state or local government constitute
the same public agency can only be determined on a case-by-case basis.” For more
information regarding whether two employers constitute a single public agency, please
see the enclosed Wage and Hour Opinion Letters
FLSA2006-28 (Aug. 7, 2006) and
FLSA2006-21NA (Oct. 5, 2006). Although the relationship between the two agencies
described in your request appears to be similar to the relationship between two public
agencies in Wage and Hour Opinion Letter FLSA2006-21NA, which were found to be
separate public agencies, we do not have sufficient information to reach a conclusion on
that issue. We would note that the fact that two agencies share payroll services would not
necessarily change the outcome of a determination that they otherwise are not the same
public agency for purposes of the FLSA.

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 litigation concerning the issues addressed herein. You have also

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

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

Enclosures:
Wage and Hour Opinion Letters FLSA2006-28 (Aug. 7, 2006) and FLSA2006-21NA
(Oct. 5, 2006).

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