First Circuit Rules Public Notice Is Not Required When Employers Adopt Longer ‘Work Periods’, 1st Circuit Rules: Calvao v. Town of Framingham, 599 F.3d 10 (1st Cir. 2010)
In Calvao v. Town of Framingham, the First Circuit Court of Appeals found that neither the Fair Labor Standards Act (“FLSA”), its legislative history nor its implementing regulations require a municipal employer to give notice to its public safety officers before invoking the statutory exemption for such officials from the usual overtime requirements. Section 207(k) of the law allows employers of public safety officers to adopt “work periods” of as long as 28 days as an alternative to the act’s standard 40-hour workweek. 29 U.S.C. §207(k) permits state and local governments to work law enforcement and fire protection employees more than 40 hours in a workweek without paying them overtime. Instead, overtime pay for those workers is calculated on the basis of a “work period.” A work period is any established and regularly recurring period of work that is not less than seven consecutive days nor more than 28 consecutive days (29 C.F.R. §553.224(a)). Under the Section 207(k) exemption, overtime compensation is due after an employee works more than a certain number of hours, depending on the length of the work period. For example, for a 28-day work period, law enforcement employees are due overtime for each hour worked over 171, and for a seven-day work period, they are due overtime for each hour worked over 43. For police and firefighters to qualify for the Section 207(k) exemption, their employer must “establish” a work period for them. See 29 C.F.R. §553.224(a). In most state and local governments, establishing the work period is an administrative declaration. Within these limitations, the work period may be of any length and need not coincide with the workweek, the pay period or with a particular day of the week or hour of the day.
The Calvao plaintiffs claimed their employer never “established” a work period because it never provided them with advance notice of the work period designation. As a result, they claimed they were owed back overtime. In deciding whether the employer properly “established” a work period, the First Circuit considered three things: the text of the statute, its legislative history and its implementing regulations. The text of Section 207(k) “does not specify that a public employer is required to establish a work period or identify how an employer might do so,” the Court held. “Further, the text contains no requirement of notice to affected employee.” Section 207(k)’s legislative history also supports an interpretation that public notice is not required, the First Circuit held, noting that Congress “explicitly rejected” a proposal requiring that employers obtain employee agreement before establishing a work period.
The First Circuit concluded that, although “Section 553.224’s reference to an ‘established’ work period is the foundation of plaintiffs’ claim,” the rule in fact “includes no procedural steps of any kind, let alone a notice requirement.” The Court rejected the plaintiffs’ claim and found the employer free from liability for back overtime.