FLSA2003-3 — State police and section 7(p)(1)

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

May 9, 2003
FLSA2003-3
Dear
Name*,

This is in response to your request for an opinion regarding the application of the Fair Labor Standards
Act (FLSA) to the
Name* State Police Name* when they provide police escorts during their off-duty
hours to certain vehicles and loads on the highways as required by state law.

Your letter states that
Name* Revised Statute 32:837(B)(4) and rules and regulations promulgated
pursuant thereto require the
Name* to escort certain vehicles and loads on the highways. Off-duty
personnel are offered the opportunity to escort permit loads which require State Police escorts. An
officer’s participation is solely voluntary. The permittees/movers are required to pay the
Name* for the
wages of the trooper and fees for the use of the
Name* vehicle required for the off duty escort. Each
officer is paid through the
Name* payroll system at his time and one-half rate without regard to the
number of regular hours worked during the pay period.

The permittees/movers are private employers which are separate and independent of the
Name* which
is under the Department of Public Safety and Corrections, Public Safety Services in the Executive Branch
of State Government.

As indicated in Section 553.227, Section 7(p)(1) of the FLSA makes special provision for fire protection
and law enforcement employees of public agencies who, at their own option, perform special duty work in
fire protection, law enforcement or related activities for a separate and independent employer (public or
private) during off-duty hours. The hours of work for the separate and independent employer are not
combined with the hours worked for the primary public agency employer for purposes of overtime
compensation. Section 7(p)(1) applies to such outside employment provided (1) the special detail work is
performed solely at the employee’s option, and (2) the two employers are in fact separate and
independent.

This special provision applies even if the public agency facilitates the employment or affects the
conditions of employment of such employees. Section 7(p)(1) applies to special details even where a
State or local ordinance requires that such work be performed and that only law enforcement or fire
protection employees of a public agency in the same jurisdiction perform the work. These principles are
exceptions to the usual rules on joint employment set forth in 29 CFR 791 (copy enclosed).

In other words, when a fire protection or law enforcement employee is jointly employed by both a public
and private employer during the same workweek, the public employer would not be liable for the payment
of any overtime compensation which may otherwise be due as a result of the joint employment. Section
7(p)(1) does not prevent a public agency from prohibiting or restricting outside employment by its
employees. Private section firms would still be obligated to pay “moonlighting” public employees, as any
other employees whom they employ, in accordance with the monetary provisions of the FLSA.

It is our opinion that a permittee/mover, who is a private employer, and the Louisiana State Police are
separate employers for the application of the FLSA. Therefore, provided the ther provisions of 7(p)(1) are
met,
Name* would not be obligated to include the hours worked voluntarily by State Troopers in their off-
duty hours for escorting permit loads required by State law when calculating and paying overtime due to
the State Troopers.

You ask if
Name* method of administering the off-duty escorts for troopers meets the requirements of
Section 553.227(d) which permits employers to facilitate conditions of employment or affect the conditions
of such employees.
Name* offers off-duty, volunteer troopers the opportunity to escort permit loads,
requires private employers to pay the wages and fees for the services directly to the department, and
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U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

pays the troopers through the agency’s payroll system. These methods are within the requirements of
Section 553.227(d).

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 also represented that this opinion is not
sought on behalf of a client or firm which is under investigation by the Wage and Hour Division, or which
is in litigation with respect to or subject to the terms of any agreement or order applying or requiring
compliance with the provisions of the FLSA.

Sincerely,

Tammy D. McCutchen
Administrator

Enclosure

Note: * The actual name(s) was removed to preserve privacy.

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