FLSA2006-19 — Time spent by police officers in off-duty firearm training

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

June 1, 2006 FLSA2006-19

Dear
Name*,

This is in response to your letter requesting an opinion on whether the city is required by sections 6
and 7 of the Fair Labor Standards Act (FLSA) to compensate police officers for time spent in
training on the use of a firearm that the officers carry voluntarily during off-duty hours.

In your letter, you state that neither the state nor the police department requires that police officers
carry firearms while off-duty, and the police department does not require off-duty officers to take
action if confronted with a “situation.” However, officers do have the “power of arrest” while off-duty
when in their own jurisdiction and elsewhere if faced with a situation where the use of deadly force
is appropriate. The police department authorizes the use of specific weapons during off-duty hours,
just as it authorizes use of specific weapons during duty hours. Officers who wish to carry the
approved off-duty firearm must purchase it themselves. In the past, the approved off-duty firearm
was a smaller version of the weapon carried while on-duty, the mechanical operation of which was
identical.

Recently, however, officers proposed that a different firearm be selected as the official off-duty
firearm and the police department has chosen a revolver that weighs less and is easier to conceal
than the semi-automatic pistol used during duty hours. You state that the operation of the revolver
is fundamentally different from the on-duty firearm.

Both the state and the police department require that officers qualify and demonstrate competency
and familiarity with their on-duty firearms, and they are paid for their time while qualifying. The
police department also requires that officers qualify with their off-duty firearm annually and train
with it quarterly to demonstrate competency. The “qualification shoot,” when the officers are graded
for accuracy, occurs during one of the four training sessions. Training and qualification take place
at the police department firing range and follow a prescribed training syllabus. The officers who
conduct the firearms instruction are compensated for their teaching time. The city provides the
targets and ammunition needed.

Because neither the state nor the police department requires that an officer purchase an off-duty
weapon or take action while off-duty, you ask whether the department is required to compensate
the officers for time spent in training with the off-duty weapon.

In your letter, you stated the police department requires training with the off-duty weapon to ensure
that the officer is familiar with and trained to use it. As further explanation, you mention that should
an officer use the weapon in an off-duty situation, the city could be named in any civil litigation that
ensued and, if so, the subject of adequate training would likely be raised. It is clear then that the
city wants the officers trained on all weapons the city has officially sanctioned for their use. In a
phone conversation with a member of the Wage and Hour Division staff, you indicated that the
state requires that an officer be certified on any weapon discharged in the course of duty, including
off-duty firearms fired while the officer is off-duty. Therefore, you ask us to assume that the state
requires that the officers be trained on the off-duty weapon as well as their duty weapon.

At 29 C.F.R. Part 553, the regulations provide guidelines for the application of the FLSA to
employees of state and local governments. Section 553.226 (copy enclosed), provides a special
exemption from hours worked for time spent outside of regular working hours by public employees
in certain training sessions. The requirements for this exemption are as follows:

(1) Attendance outside of regular working hours at specialized or follow-up training,
which is required by law for certification of public and private sector employees within
a particular governmental jurisdiction (e.g., certification of public and private
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U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

emergency rescue workers), does not constitute compensable hours of work for
public employees within that jurisdiction and subordinate jurisdictions.

(2) Attendance outside of regular working hours at specialized or follow-up training,
which is required for certification of employees of a governmental jurisdiction by law
of a higher level of government (e.g., where a State or county law imposes a training
obligation on city employees), does not constitute compensable hours of work.

29 C.F.R. § 553.226(b)(1) - (2).

The provisions of section 553.226(b)(2) were added to the regulations in recognition “that State law
for certain types of specialized training often only applies to public sector employees such as police
. . . and not to employees performing similar activities (if any) in the private sector.” 52 Fed. Reg.
2,025 (January 16, 1987) (copy enclosed). Additionally, “if the training is required by law of a higher
level or government (e.g., a State or county requirement imposed on city employees), the training
time would not be compensable.” Id. According to Minnesota Statute § 626.8452 (copy enclosed),
“the head of every local and state law enforcement agency shall provide instruction on . . . the use
of firearms to every peace officer. . . . This instruction must come before the agency issues a
firearm to the officer or otherwise authorizes the officer to carry a firearm in the course of
employment.” (emphasis added.) The state provides courses throughout the state “for training
police officers and constables . . . in the use of approved equipment.” Minn. Stat. § 626.848 (2004)
(copy enclosed).

The off-duty firearm training fulfills the requirements of 29 C.F.R. § 553.226. The training sessions
in question occur outside of the officer’s regular working hours, thereby meeting the first
requirement of the exemption. Secondly, the firearm training is specialized for the officers and the
type of gun on which they are being trained. Finally, based on your representations that the state
requires that the officer be trained on any weapon that is approved for use by the officer, including
off-duty weapons that are fired while the officer is off-duty, it is our opinion that the “law of a higher
level of government” imposes the off-duty firearm training.
1
Additionally, the state “certifies” the
firearm training by requiring the training of officers who carry and fire the firearm. See Minn. Stat.
§ 626.8452. See also Wage and Hour Opinion Letter November 4, 1998 (copy enclosed). Because
this training is required for all officers in the state who carry a firearm off-duty, the training sessions
qualify for the section 553.226 exemption. See Wage and Hour Opinion Letter August 2, 1989
(copy enclosed).

Because the off-duty firearm training qualifies under 29 C.F.R. § 553.226, we conclude that time
spent by the officers training on the use of an off-duty weapon is not hours worked under the FLSA
if the training occurs outside the officer’s regular working hours. However, any time spent training
during the officer’s regular working hours or while the officer is on duty must be counted as hours
worked.

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.

1
We have not independently researched, and express no opinion regarding, Minnesota’s requirements
concerning off-duty weapons.
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U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

We trust the above information is responsive to your inquiry.

Sincerely,

Alfred B. Robinson, Jr.
Acting Administrator

Enclosures:
29 C.F.R. § 553.226
52 Fed. Reg. 2,025
Wage and Hour Opinion Letters 11/4/1998 and 8/2/1989
Minn. Stat. §§ 626.8452 and .848

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