The Fair Labor Standards Act

 

I - Historical Background

 

The Fair Labor Standards Act of 1938 (FLSA) is the federal law that regulates the wages and hours worked by employees engaged in interstate commerce.  Initially, the FLSA applied only to private employers.  In 1966, the Act was amended to include school, hospital, nursing home and local transit employees.  The inclusion of these public employees was held to be constitutional by the Supreme Court in Maryland v. Wirtz.[1]  The Act was again amended in 1974 to include most state and local government employees. 

 

However, in 1976 the Supreme Court held that this expanded coverage violated the Tenth Amendment to the Constitution in National League of Cities v. Usery.[2]  In the National League of Cities case, the court held that only non-traditional or so-called proprietary functions of state and local governments could be regulated under the FLSA.  Therefore, traditional, functions of government, such as law enforcement, fire protection, sewer and water works, etc. could not be regulated under the FLSA under the Supreme Court’s ruling. 

 

For that reason, employees in those traditional governmental functions were considered to be beyond the reach of the minimum wage and overtime requirements of the FLSA from 1976 when National League of Cities was decided until early in 1985.  In February, 1985, the Supreme Court reversed itself and overruled National League of Cities in the case of Garcia v. San Antonio Metropolitan Transit Authority.[3]  In the Garcia case, the court rescinded the distinction between traditional and non-traditional governmental functions as an unworkable standard.  The court concluded that the Fair Labor Standards Act must be applied to all governmental functions which are performed by employees within the scope of the Act.

 

            FUTURE TRENDS

 

It is possible that the U.S. Supreme Court will reverse its 1985 Garcia decision and rule that the Fair Labor Standards Act no longer applies to state and local governments.  When Justice Rhemquist authored a vigorous dissent in Garcia, he predicted that once the makeup of the Supreme Court changed, the decision would be reversed.  Now that he is Chief Justice and those that formed the Garcia majority have retired, his prediction appears ready to come true.

 

The Supreme Court, in 1999, decided the case of Alden v. State of Maine, to ruling that the 11th Amendment’s prohibition against a state being sued in Federal Court against its will preclude enforcement of the FLSA against a state by its employees without the state’s consent. 

 

A recently accepted case involving Harris County Texas could also serve as the vehicle for overturning Garcia (which also came from Texas).  The issue in the Harris case is whether forcing employees to use compensatory time violates the FLSA.

 

Certainly departments defending FLSA cases at this time should hold off trying or settling them until the Supreme Court rules, probably some time next year.

 

NOTE:  The enforceability by individual employees of other Federal laws, such as the Age Discrimination in Employment Act (ADEA) and even Title VII of the Civil Rights Act, may be in doubt.  The Supreme Court has recently accepted a case involving Florida State University.  There the court may rule that certain Federal statutes enacted pursuant to the Interstate Commerce Clause may not be enforceable by private employees in Federal or state courts.

 

            PROVISIONS OF THE FLSA

 

            Employees Covered

 

The FLSA provides that certain employees do not come within the coverage of the Act.  Few of these exceptions involve employees of state and local governments.  If a worker is not covered by the FLSA, the provisions of the Act do not apply to the employee, though the employer must, of course, still comply with state wage and hour laws.

 

The Act does not apply to police departments during any week in which less than five full or part-time employees are on the payroll. 

 

Bona fide volunteers, motivated by charitable or civil concerns, are not considered employees under the Act.  However, sham volunteers, or employees who are coerced to perform duties, will not qualify for exemption and will be considered employees.  Furthermore, the law puts an affirmative duty upon employers to ensure that employees do not take it upon themselves to perform work for an employer’s benefit.  An employer will be considered to have employed the worker whenever the employer permits the individual to work or “suffers” the work of the employee.

 

            Minimum Wage

 

Each employee covered by the FLSA must be paid at least the applicable minimum wage.  This minimum wage compensation applies regardless of whether the employee is paid on an hourly or salary basis.  Because most police in this state are paid an amount far greater than the minimum wage, this provision will probably not create serious difficulty for local police departments.  However, where salaried employees occasionally work more than their usual number of hours, care must be taken to ensure that the average hourly rate in a given week or work period does not drop below the minimum wage.

 

            REGULAR RATE OF PAY

 

Section 7(a) of the Fair Labor Standards Act (FLSA) requires that covered, non-exempt employees must be paid overtime pay at a rate not less than one and one-half times their regular rates of pay for all hours worked in excess of 40 hours in a work week (unless an employer makes a 7(k) election for police or fire personnel).[4]  Section 7(e) mandates inclusion in the regular rate of “all remuneration for employment paid to, or on behalf of, the employee” except the following payments which are specifically excluded.[5]

 

(7)                                       Sums paid as gifts; payments in the nature of gifts made at Christmas time or on other special occasions, as a reward for service, the amounts of which are not measured by or dependent on hours worked, production, or efficiency;

 

(8)                                       Payments made for occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work, or other similar cause; reasonable payments for traveling expenses, or other expenses, incurred by an employee in the furtherance of his or her employer’s interests and properly reimbursable by the employer; and other similar payments to an employee which are not made as compensation for his or her hours of employment;

 

(9)                                       Sums paid in recognition of services performed during a given period if either, (a) both the fact that payment is to be made and the amount of the payment are determined at the sole discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement, or promise causing the employee to expect such payments regularly; or (b) the payments are made pursuant to a bona fide profit-sharing plan or trust or bona fide thrift or savings plan, meeting the requirements of the Secretary of Labor set forth in appropriate regulations which he is required to issue, having due regard among other relevant factors, to the extent to which the amounts paid to the employee are determined without regard to hours of work, production, or efficiency; or (c) the payments are talent fees (as such talent fees are defined and delimited by regulations of the Secretary) paid to performers, including announcers, on radio and television programs;

 

(4)                                       Contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing old-age, retire­ment, life, accident, or health insurance or similar benefits for em­ployees;

 

(5)                                       Extra compensation provided by a premium rate paid for cer­tain hours worked by the employee in any day or workweek because such hours are hours worked in excess of eight in a day or in excess of the maximum workweek applicable to such employee, under subsec­tion (a) or in excess of the employee’s normal working hours or regu­lar working hours, as the case may be;

 

(6)                                       Extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth or seventh day of the workweek, where such pre­mium rate is not less than one and one-half times the rate established in good faith for like work performed in non-overtime hours on other days;

 

(7)                                       Extra compensation provided by a premium rate paid to the employee, in pursuance of an applicable employment contract or col­lective bargaining agreement, for work outside of the hours established in good faith by the contract or agreement as the basic, normal, or regular workday (not exceeding eight hours) or workweek (not exceed­ing the maximum workweek applicable to such employee under sub­section (a)), where such premium rate is not less than one and one-half times the rate established in good faith by the contract or agree­ment for like work performed during such workday or workweek.

 

In order to calculate an officer’s regular rate of pay, Section 7(e) of the FLSA specifies that it is necessary to take into account “all remuneration for employment paid to, or on behalf of the employee”.  According to a Letter Ruling issued by the Wage and Hour Division of the U.S. Department of Labor, both a cost of living allowance (COLA) and a shift differential applicable to certain employees under a collective bargaining agreement must be included in calculating an employee’s regular rate of pay.[6]

 

Other items that must be included are:

·        educational incentive (but not reimbursement) payments[7];

·        longevity pay[8];

·        hazardous duty pay[9];

·        working out of grade pay[10]; and

·        specialty pay[11].

             

            Overtime Provisions

 

A covered employee who is not “exempt”, and who works in excess of forty hours per week (or other overtime threshold), is entitled to overtime compensation at the rate of one and one-half times the employee’s regular rate of pay. 

 

            Exempt Employees

 

An exempt employee is an employee who satisfies one of two tests:  (1) under the “short” test, an employee is exempt if the employee makes a salary of at least $250.00 per week, has as his or her primary duty the management of the enterprise or a discreet unit thereof, and regularly supervises two or more employees; (2) under the “long” test, an employee is exempt if he or she receives a salary of at least $155.00 per week, has management as a primary duty, supervises two or more employees on a regular basis, is involved in the selection, ­discharge or promotion of other employees, and customarily and regularly exercises discretionary powers and performs  all of these functions at least eighty percent of the time.

 

            Law Enforcement Exemption

 

Other exemptions are not generally applicable to the law enforcement area.  Of most importance to a police chief is a special exemption from the forty hour per week overtime threshold which applies to law enforcement personnel.  To come under the law enforcement exemption, an employee must:

 

(1)        Be a uniformed or plainclothes member of a body of officers and subordinates;

 

(2)        Be empowered by statute or local ordinance to enforce laws designed to maintain public peace and order and to protect life and property from accident or willful injury, and to prevent and detect crime;

 

(3)        Have the power to arrest; and

 

(4)        Have participated in a special course of instruction or study (or will undergo on-the-job training) which typically includes: self-defense, physical training, firearms proficiency, criminal and civil law principles, investigative and law enforcement techniques, community relations, medical aid and ethics.  Not included in this category are such personnel as dispatchers, civilian parking checkers, building security guards and records clerks.

 

It should be noted that a municipality is not required to establish a special work period and may, if it chooses, apply the forty hour per week standard to law enforcement personnel.

 

In order to take advantage of the law enforcement exception, a municipality must establish a regularly recurring work period of at least seven consecutive days and not more than twenty-eight consecutive days.  (See Table 1 in Appendix)  An employer may have one work period applicable to all employees or different work periods applicable to different employees or groups of employees. 

 

Prior approval of the Department of Labor’s (DOL) Wage and Hour Division is not required.  The employer must, however, make some notation in its records which shows the work period for each employee and which indicates the length of that period and its starting time.

 

For those employees who have a work period of at least seven but less than twenty eight consecutive days, no overtime compensation is required until the number of hours worked during such work period exceeds the number of hours shown for that period on Table 1 (see Appendix).  Once that point is reached in a particular work period, all additional hours are paid at one and one-half times the employee’s regular rate of pay.  To use Table 1, select the number in the left-hand column which represents the number of days chosen for a particular employee’s work period.  The corresponding number in the right-hand column represents the maximum number of hours which that employee can work during that pay period without receiving overtime payments.  All hours worked in excess of that number must be compensated at the time and one-half rate.

             

            Compensable Time

 

Compensable hours of work generally include all of the time during which employees on duty were on the employer’s premises or at a prescribed workplace, as well as all other time during which the employee is suffered or permitted to work by the employer.  Compensable hours thus include all pre-shift and post-shift activities which are an integral part of the employee’s principal activity or which are closely related and indispensable to its performance, such as attending roll call, writing up and completing reports or tickets, etc.  It also includes time which an employee spends in attending required training classes and “on call” (see later section) if he or she is thereby restricted from effectively using the time for personal pursuits.  For example, time spent by employees who are confined to barracks while attending police academies are not on duty during those times when they are not in class or at a training session, since they are free to use such time for personal pursuits.  Also, a police officer who has completed his or her tour of duty, but who is given a patrol car to drive home and use on personal business, is not working simply because the radio must be left on so that the officer can respond to emergency calls.  Of course, the time spent actually responding to such calls would be compensable. 

 

Unless the municipality elects to use the special overtime exemption for law enforcement personnel, overtime pay (at a rate of time and one-half) must be provided for all compensable time in excess of forty hours per work week.  (A work week is a period of seven consecutive days comprising 168 consecutive hours).

 

PRACTICE POINTERS

 

A police officer who has a 14-day work period earns an annual salary of $26,000.00 for all hours worked.  After working 96 hours in one 14-day work period, the officer is entitled to overtime pay for the 10 hours he or she worked in excess of the 86 hour maximum under a 14-day work period. 

 

The officer’s pay would be computed as follows:

 

$26,000/year=$1,000.00/work period

26 work periods/year

 

Regular rate of pay:

$1,000(salary for work period)=$10.42/hour

            96 hours worked

 

10 hours of overtime x $10.42=$52.10                                          2

Regular pay:     $1,000.00

Overtime Pay (at half-time)       52.10

Total:    $1,052.10

 

 

Example #2

 

An officer who is assigned to a 28-day work period earns $8.00 per hour.  Where such officer actually works 191 hours (i.e., 20 more than the 171 hour maximum) in a particular work period, he or she will be entitled to compensation as follows:

Regular rate of pay:       $8.00/hour

Overtime:  $8.00 x 1˝ = $12.00/hour

171 hours @ $8.00/hour = $1,368.00

20 hours @ $12.00/hour =          240.00

Total:                                     $1,608.00

 

            Trading Time (Shift Swapping)

 

An employer is required to pay overtime for excess hours worked in a work period as a result of “trading time” among employees unless:

 

(1)        The trading of the time is done voluntarily by the employees and not at the request of the employer;

(2)        The trade is not made for reasons related to the employer’s business operations;

(3)        The employer maintains records of all time traded by employees; and

(4)        The time is traded and paid back within a twelve month period.

             

            Meal Time

 

Where the employer has adopted the law enforcement exemption, employers must compensate law enforcement personnel for time spent eating meals where the employee is on duty for twenty-four hours or less during each tour of duty.  Where the law enforcement exception has not been adopted, and the standard forty-hour work week is used, meal time is compensable unless the employee is fully relieved of all duties (including answering telephones) during the period.  Keeping a radio on does not mean that an officer must be paid for a meal time.

             

            Paid Details

 

Time worked by police officers on off-duty assignments or paid details (such as highway construction, concerts, public gatherings, etc.), for which the town is reimbursed by a private entity, is  not treated as compensable time for purposes of determining overtime payments.  However, where the detail is performed for the municipal employer (DPW, Water, etc.), time spent is added to an officer’s regular police work for the given work period.  Therefore, to be safe, cities and towns should ensure that the rates charged for such police protection are sufficient to cover the overtime rates of the officers involved.

             

            Travel Time

 

Pursuant to the FLSA, when travel time is compensable depends entirely on the kind of travel involved.

 

(1)        Home to Work Rule

 

As a general rule, home to work travel is not compensable, even if an employee must travel from home to an outlying site to get to the employer’s premises.  This is true whether an employee works at a fixed location or at different job sites.  Generally an employee is not at work until reaching the job site.[12]  However, if an employee is required to report to a meeting place where he or she is to pick up materials, equipment, or other employees, or to receive instructions, before traveling to the work site, compensable time starts at the time of the meeting.[13]

 

(2)        During Work Day

 

Traveling by an employee from one job site to another job site during the work day is compensable work.  Also, traveling from an outlying job at the end of a scheduled work day to the employee’s premises is compensable.[14]  According to the DOL regulations, if an employee is required to report to a meeting place to receive instructions, perform other work there, or pick up tools, the travel from the designated meeting place to the work site is compensable working time and must be counted as such, regardless of contract, custom or practice.

 

(3)        Transportation Furnished By Employer

 

Employees are not entitled to compensation from home to work merely because the employer furnishes the transportation.  An employee who chauffeurs other employees to work at the direction of the employer, however, is entitled to compensation.  An employee who uses a government car is working while driving on business, but not while going to and from home.  For example, a police officer who has the use of a patrol car and drives it home at night and back to the station in the morning is not entitled to compensation for that time, unless he or she is required to pick up other officers and transport them to and from work or actually responds to an emergency from his or her home.

 

Pursuant to the above quoted regulations, the Department of Labor has issued a letter ruling dated November 15, 1990, which provides further guidance in this area.  The inquiry involved a police officer who was assigned to a police academy for two weeks of traffic accident investigation training.  The classes were scheduled from 8:00 a.m. to 5:00 p.m. each day.  In order to travel to and from the training site each day, the police officer picked up a police vehicle at the municipal building in lieu of using his personal vehicle, since no travel expenses were provided to him for attending the training.  The time spent traveling between the training site (approximately 45 minutes each way) presumably occurred before 8:00 a.m. and after 4:00 p.m. (the officer’s normal shift) each day.

 

According to the Department of Labor, the travel performed by the police officer at the beginning and the end of the work day from the officer’s home to the municipal building, and from there in a police vehicle to the police academy, is considered ordinary home to work travel and would not be considered to be compensable hours of work under the provisions of the Fair Labor Standards Act. 

 

The Department of Labor stated, “an employee who travels from home for his or her regular work day is engaged in ordinary home to work travel which is a normal incident of employment. (We note that the approximate 25 mile difference between . . . and . . . is not an unreasonable distance for home to work commuting.) This is true whether he or she works at a fixed location or at different sites.  Normal travel from home to work is not work time as discussed in sections 785.34 and 785.35 of regulations, 29 CFR Part 785. 

 

The mere fact that the employer provides the employee with transportation, for the employee’s convenience, does not convert such travel time to a principal activity.  However, if there is a custom, contract, or practice providing the employee’s regular daily travel between home and the work place is compensable, such time will be so regarded under the provisions of section 4 of the Portal Act of 1947 as indicated in Section 785.34. On the other hand, if the employer requires or directs the employee to drive the employer’s vehicle to a job location, such travel time would constitute hours worked under the provisions of FLSA.  In this regard, see section 785.38 of Part 785.”

 

Based upon the above, in the absence of a “custom, contract or practice,” it is clear that compensation for travel time put in by a police officer prior to his or her working hours and after the normal work day, is not mandated under the Fair Labor Standards Act.

 

Pursuant to Section 4 of the Portal-to-Portal Act, if a department has customarily paid officers for travel time between home and a training facility, or is required to do so by an existing collective bargaining contract, such time must be included in computing hours worked. 

 

(4)        During Assigned Shift

 

A more complicated issue arises when an officer attends a training seminar during at least part of his or her regularly assigned shift but the seminar extends beyond the duration of the shift.  By way of example, an officer assigned to the 8:00 a.m. to 4:00 p.m. shift, who reports to the station at 8:00 a.m., picks up a cruiser and drives for an hour with two (2) other officers to a training facility fifty (50) miles away and, when the seminar ends at 5:00 p.m. drives back to the station, arriving at 6:00 p.m., would be entitled to compensation from 8 a.m. to 6 p.m.

 

Each of the officers should be paid for the morning commute from the station to the academy, not as “travel time” but as regular shift work.  As discussed above, Section 785.38 of the FLSA Regulations (29 CFR), requires that time spent by an employee in travel as part of his or her principal activity must be counted as hours worked.  The Regulations cite examples such as travel from job site to job site during the workday as well as where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools.  In such cases, the travel from the designated place to the work place is part of the days’ work, and must be counted as hours worked regardless of custom, contract or practice. (emphasis added).

 

Likewise, there should not be any disagreement concerning the officers’ entitlement to compensation for time spent in class after the end of the officers’ shift, i.e., from 4:00 to 5:00 p.m.

 

There is room for questioning which, if any, of the officers must be compensated for the time spent traveling from the academy to the station at the end of the day, i.e., 5:00 to 6:00 p.m. Again FLSA Regulation Section 785.38 is helpful in addressing this issue.  The Regulation includes the following example:

 

“If an employee normally finishes his work on the premises at 5:00 p.m. and is sent to another job which he finishes at 8:00 p.m. and is required to return to his employer’s premises arriving at 9:00 p.m., all of the time is working time.  However, if the employee goes home instead of returning to his employer’s premises, the travel after 8:00 p.m. is home-to-work travel and is not hours worked.[15]“

 

Certainly the driver is entitled to pay for the time spent returning to the station after the training class ended.  The 50 mile distance might be deemed a normal commuting distance, thus by itself not requiring compensation for travel time.  However, the fact (if not requirement) that the passengers returned to the station, probably would entitle them to such compensation also. 

 

PRACTICE POINTERS

 

In the absence of a custom, practice or preexisting collective bargaining agreement to the contrary, time spent commuting from an officer’s home to and from a training facility should not be counted as time worked for compensation purposes.

 

Officers who travel during their assigned shift to a training facility should be compensated for such travel time.

 

An officer who is required to report to the station and pickup and/or drop off a departmental vehicle to transport himself and fellow officers to and from a training facility must be compensated for all time spent traveling, including time outside the officer’s assigned shift.

 

Where a departmental vehicle is provided to an officer solely as a convenience (and not used for transporting other officers), and where no custom, practice or collective bargaining agreement provides otherwise, such travel time would not be compensable, since it would be considered ordinary home to work travel.

 

            COMPENSATORY TIME

 

Police departments may allow sworn and civilian employees the option of receiving compensatory time off in lieu of monetary overtime compensation.[16]  The rate must be not less than time and one half the number of hours worked for which such overtime compensation is due.  Exempt employees, such as chiefs, may also be permitted to accrue compensatory time off under certain circumstances.

 

            Agreement Required

 

The 1985 Amendments to the FLSA allow state and local governments to use compensatory time off in place of monetary compensation.  This is only permitted when there is an agreement or understanding with an employee or collective bargaining representative.[17]  Any agreement with an employee to accept compensatory time rather than pay must be made “freely and without coercion or pressure”.[18] 

 

It is necessary that there be an understanding or agreement of some kind prior to the work being done.[19]  It is not essential that the agreement be in writing, although that is preferable if confusion is to be avoided.  In any event, a record of such agreement must be maintained by the employer in some fashion.  There is also no need to offer compensatory time off to all employees and it is even lawful to make different comp time arrangements with various employees.[20]

 

At a minimum, an agreement for compensatory time off in lieu of overtime pay shall include: an agreement by the employee or bargaining representative that comp time is a condition of employment, and some notice (orally or in writing) to the employee that under mutually agreeable conditions accrued comp time may be saved, used or, if the employer is so inclined, exchanged for pay.

 

The 1985 Amendments also specified that where there was a comp time practice in place before April 15, 1986, this would satisfy the need for an understanding.  All that was required in such cases was that a notice be given to employees that the practice was a condition of employment.  For employees hired after April 14, 1986, the general rules for having an agreement with such employee or their bargaining representatives would apply.[21]

 

            Restricting Accrual and Use

 

Compensatory time agreements may regulate the accrual and use of such time by employees.  An employee could be limited to accruing a certain number of hours (see below for maximum allowed).  Restrictions can also be imposed on how long the hours may be “banked”, when they must be used, and what amount of notice will be required before use is allowed.  A requirement that an employee use up all accrued comp time before taking any vacation time is expressly permitted, even if this means that such employee forfeits accrued vacation as a result.[22] 

 

An employer could also agree to retain the right to “cash out” all or any part of an employee’s accrued comp time at any time or under any mutually agreeable circumstances.  Since accrual requires a mutual agreement, an employer can specify whether and for what work hours compensatory time accrual is permitted.[23]  Similarly, the agreement can provide for any combination of money and comp time so long as they are both calculated at time and one-half.[24]

             

            Enforcement

 

Enforcement is limited to FLSA overtime, meaning hours worked in excess of FLSA thresholds.  For police, this means hours actually worked in excess of 40 hours per week (or a higher number if an employer has adopted a §207(k) work schedule).  Therefore, even though an employer may allow an employee to accrue time worked in excess of 8 hours in a day or 35 hours in a week or to count sick or vacation days as time worked towards an overtime level, for example, such time need not be compensated at time and one-half under the FLSA.  Enforcement, in such cases, is limited to filing a grievance under the collective bargaining agreement or a complaint under any applicable local ordinance or by-law.

 

            Bargaining Issues

 

Since compensatory time is a mandatory subject of bargaining, any new agreement or material change in an existing practice must involve the exclusive bargaining representative (union), if there is one.  Where a position is in a bargaining unit, an employer commits a prohibited (unfair labor) practice by negotiating directly with an employee on a condition of employment.  This limitation does not preclude an employer from offering a unionized individual the opportunity to work certain overtime hours for comp time rather than pay, so long as that discussion stays within the parameters of an existing practice or bargaining agreement.

 

            Limitation on Use

 

In general, comp time is similar to “money in the bank” for an employee who can spend it when he or she chooses.  In 1995 the U.S. Supreme Court declined to review a decision that held that an employee cannot be forced to use accrued comp time.[25]  However, on October 12, 1999 the Supreme Court agreed to review a similar decision.[26]  The court said it would limit its review to “whether a public agency. . .may, absent a pre-existing agreement, require its employees to use accrued compensatory time.” 

 

So long as it does not “unduly disrupt” the operations of the department, a  request to use accrued comp time must be granted within a “reasonable period” after the request is made.[27]   A denial must be based on more than inconvenience.  The fact that a replacement will have to be paid at overtime is not a sufficient basis for denying the request.[28]

 

Since neither a union nor an employee can bargain away FLSA rights, any agreement or understanding which contains provisions violating the DOL regulations is invalid.[29]

 

An employee is entitled to be paid for all accrued comp time upon leaving the department.  The payment is calculated as the higher of:

·        the average regular rate received by such employee during the last 3 years of employment; or

·        the final regular rate received by such employee.[30]

 

            Accumulation Limits

 

Police officers may accrue up to 480 hours of compensatory time (equal to 320 hours of work at time and one-half).  Other employees whose work involves public safety (e.g., fire), emergency response or seasonal activity may likewise accumulate up to 480 hours of comp time.  It is not essential that an employee work exclusively in one of these categories to qualify for the higher cap, so long as some of an employee’s work regularly includes such activities.