FLSA2007-8 — School resource officers and section 13(a)(1)

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

FLSA2007-8

February 15, 2007

Dear Name*:

This is in response to your request for an opinion concerning whether School Resource Officers
(SROs) employed at an independent school district within two counties of a state qualify for the
administrative exemption under Fair Labor Standards Act (FLSA) section 13(a)(1).
1
Based on
a review of the information presented, it is our opinion that the SROs qualify for the
administrative exemption.

You state that the SROs’ primary duty is to provide for the safety and security of the students,
staff, and property within the school system by planning to prevent safety and security
problems and by responding immediately to deal with any disruption or criminal activity.
Among their qualifications, SROs must be licensed pursuant to the state’s Peace Officer’s
Standards and Training Certification. The SROs’ duties include providing consulting advice to
school administrators on plans for safety, emergency preparedness, traffic flow, evacuation,
lighting, and video surveillance, as well as other safety/security issues; providing training to
students, faculty, administrators, and parent groups regarding safety issues, such as personal
safety, gun safety, bus safety, and drug and gang awareness; coordinating security for
extracurricular events; serving as liaison/facilitator between the school system and local law
enforcement agencies to coordinate the law enforcement efforts of the local jurisdiction with
regard to the schools, and to develop a communication network between administration, staff,
students and parents within the “cluster” schools; creating and maintaining written case files of
criminal acts by students and reports of deprived, abused, or neglected children and sharing this
information with the school administrator, school social worker, agencies in the law
enforcement and judiciary systems, and the local family and children’s services department,
when appropriate; advising regarding what law enforcement measures are appropriate when the
school administrator or SRO believes an incident is a violation of the law; investigating
suspected criminal activity on school property; and making arrests on school property.

In performing the duties above, the SRO decides whether a situation requires immediate action,
whether to charge a violation, whether to make an arrest, and whether to refer a case to the
district attorney for prosecution. The SRO independently determines and plans his or her daily
work schedules (e.g., whether to visit a particular school at a particular time and what to do at
that location). In addition, the SRO’s recommendations to faculty and staff are usually
implemented (e.g., advice on fire drills, lighting, landscaping, traffic flow, safety, and
emergency preparedness plans). The SRO also provides training to faculty, staff, and students
and makes purchases on behalf of the school (e.g., buying safety equipment).

Each SRO has an office at a high school and serves as the Resource Officer for a cluster of
schools, typically a high school and five to seven feeder middle and elementary schools. An

1
Unless otherwise noted, any statutes, regulations, opinion letters, or other interpretive material cited in this letter
can be found at
www.wagehour.dol.gov.

SRO’s typical work day consists of working in an office at a high school writing reports or
performing similar desk work, performing training, providing advice to faculty and staff,
working in the field patrolling, and doing investigative work. The field work is incidental to
the SRO’s primary duty, which is office work, and does not require physical stamina or
repetitive movements. In a discussion with a member of my staff, you represented that the
SRO is minimally supervised by the Manager of Safety and Security. Moreover, in certain
cases, some of the cluster schools may employ security guards, but the SRO has no direct
supervisory responsibility over the security guards in such cases. The SRO has an annual
discretionary budget of $15,000 to $20,000 for purchasing safety/security related items, such as
cameras and traffic safety cones. Purchase orders above the discretionary budget require
supervisory approval. The SROs are paid at least $455 per week on a salary basis.

Section 13(a)(1) of the FLSA provides a complete minimum wage and overtime pay exemption
for “any employee employed in a bona fide executive, administrative, or professional
capacity,” as those terms are defined in 29 C.F.R. Part 541. An employee may qualify for
exemption if all of the pertinent tests relating to duties and salary are met.

As stated in 29 C.F.R. § 541.200(a), the term “employee employed in a bona fide
administrative capacity” means “any employee”:

(1) Compensated on a salary or fee basis at a rate of not less than $455 per week
. . . ;

(2) Whose primary duty is the performance of office or non-manual work directly
related to the management or general business operations of the employer or the
employer’s customers; and

(3) Whose primary duty includes the exercise of discretion and independent judgment
with respect to matters of significance.

With regard to the type of work that qualifies for the administrative exemption,

[t]he phrase “directly related to the management or general business operations” refers
to the type of work performed by the employee. To meet this requirement, an employee
must perform work directly related to assisting with the running or servicing of the
business, as distinguished, for example, from working on a manufacturing production
line or selling a product in a retail or service establishment.

29 C.F.R. § 541.201(a).

Work directly related to management or general business operations includes, but is not
limited to, work in functional areas such as tax; finance; accounting; budgeting;
auditing; insurance; quality control; purchasing; procurement; advertising; marketing;
research; safety and health; personnel management; human resources; employee
benefits; labor relations; public relations; government relations; computer network,
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internet and database administration; legal and regulatory compliance; and similar
activities.

29 C.F.R. § 541.201(b).

To qualify for the administrative exemption, an employee’s primary duty must include
the exercise of discretion and independent judgment with respect to matters of
significance. In general, the exercise of discretion and independent judgment involves
the comparison and the evaluation of possible courses of conduct, and acting or making
a decision after the various possibilities have been considered. The term “matters of
significance” refers to the level of importance or consequence of the work performed.

29 C.F.R. § 541.202(a).

Section 541.202(c) further notes that “[t]he exercise of discretion and independent judgment
implies that the employee has the authority to make an independent choice, free from
immediate direction or supervision.” As noted in the preamble to the Department’s 2004
revisions to the Part 541 regulations, federal courts generally find that employees who meet at
least two or three of the indicators mentioned in 29 C.F.R. § 541.202(b), discussed below, are
exercising discretion and independent judgment, although a case-by-case analysis is required.
See 69 Fed. Reg. 22,122, 22,143 (Apr. 23, 2004).

The administrative exemption thus has requirements pertaining both to the “type of work
performed” and to “the level of importance or consequence of the work performed.” 69 Fed.
Reg. at 22,139. With regard to the type of work performed, the preamble explains that “the
administrative exemption covers only employees performing a particular type of work—work
related to assisting with the running or servicing of the business.” See id. at 22,141.
Furthermore,

this exemption is intended to be limited to those employees whose duties relate “to the
administrative as distinguished from the ‘production’ operations of a business.” Thus, it
relates to employees whose work involves servicing the business itself—employees
who “can be described as staff rather than line employees, or as functional rather than
departmental heads.”

Id. Although the production versus staff dichotomy is illustrative, rather than dispositive, it “is
still a relevant and useful tool in appropriate cases to identify employees who should be
excluded from the exemption.” Id.

Based on a review of the information provided, we believe that the SROs perform office or
non-manual work because an SRO’s typical work day consists of working in an office writing
reports or performing similar deskwork, performing training, and providing recommendations
and advice to faculty and staff. In addition, any field work performed by the SRO is incidental
to his or her primary duty, which is office work, and does not require physical stamina or
repetitive movements. We also believe that the SROs’ primary duty of providing for the safety
and security of the students, staff, and property within the school system by planning to prevent
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safety and security problems and by responding immediately to deal with any disruption or
criminal activity, which may include, for example, providing consulting advice to school
administrators on plans for safety, emergency preparedness, traffic flow, evacuation, lighting,
and video surveillance and providing training to students, faculty, administrators, and parent
groups regarding safety-related issues, directly relates to the functional areas of safety and
health discussed in 29 C.F.R. § 541.201(b). As noted, the SROs’ employers are public
educational entities rather than police departments or security companies whose primary
operations are law enforcement and security, and as a result, the SROs’ activities could not be
categorized as production operations for their employers. Therefore, the SROs’ primary duty
involves the “performance of office or non-manual work directly related to the management or
general business operations of the employer.” Id. § 541.200(a)(2).

Moreover, we believe that the SROs’ primary duty “includes the exercise of discretion and
independent judgment with respect to matters of significance.” 29 C.F.R. § 541.200(a)(3). As
described above, the SRO is minimally supervised. The SRO has an annual discretionary
budget of $15,000 to $20,000 for purchasing safety/security related items.
2
Such duties as
providing the extensive recommendations and advice noted above to faculty and staff that are
usually implemented satisfy one of the regulatory factors in 29 C.F.R. § 541.202(b) for
determining whether an employee exercises discretion and independent judgment with respect
to matters of significance, specifically, that the “employee provide[] consultation or expert
advice to management.” See Bondy v. City of Dallas, No. 03-10112, 2003 WL 22316855 (5th
Cir. 2003) (making recommendations to management on policies and procedures). In addition,
by serving as a liaison/facilitator between the school system and local law enforcement
agencies to coordinate the law enforcement efforts of the local jurisdiction relative to the
schools, and to develop a communication network between administration, staff, students, and
parents within the cluster schools, the SRO “formulate[s] . . . [and] implement[s] management
policies or operating practices.” See 29 C.F.R. § 541.202(b).

Therefore, it is our opinion that the SROs qualify for the administrative exemption under
section 13(a)(1) of the FLSA.
3

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

2
We note that a budget in that range may not in and of itself establish discretion and independent judgment, but it
does provide some support for such a finding.
3
Our conclusion that the SROs are exempt administrative employees is not affected by 29 C.F.R. § 541.3(b)(3).
As discussed in § 541.3(b)(3), police officers, fire fighters, paramedics, emergency medical technicians and other
similar employees listed in the regulations usually do not qualify for the administrative exemption because their
primary duty is not the performance of work directly related to the management or general business operations of
the employer, as is required for exemption under § 541.200. The SROs, however, do perform work directly
related to the management or general business operations of the employer. As described above, the SROs’
primary duty of providing for the safety and security of the students, staff, and property within the school system;
planning to prevent safety and security problems; and providing safety consulting advice to school administrators
is work that is directly related to the management and general business operations of the school district. Thus,
although police officers also often work in an “office writing reports or performing similar desk work” and are not
generally exempt under the FLSA, that work is generally in furtherance of the primary, law-enforcement-related
mission of their employer, and therefore constitutes “production” work for purposes of the administrative
exemption. The SROs, by contrast, work for schools whose purpose is to educate students.
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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,

Paul DeCamp
Administrator

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