(a) As used in sections 7(k) and 13(b)(20) of the Act, the term
``any employee . . . in law enforcement activities'' refers to any
employee (1) who is a uniformed or plainclothed member of a body of
officers and subordinates who are empowered by State statute or local
ordinance to enforce laws designed to maintain public peace and order
and to protect both life and property from accidental or willful injury,
and to prevent and detect crimes, (2) who has the power to arrest, and
(3) who is presently undergoing or has undergone or will undergo on-the-
job training and/or a course of instruction and study which typically
includes physical training, self-defense, firearm proficiency, criminal
and civil law principles, investigative and law enforcement techniques,
community relations, medical aid and ethics.
(b) Employees who meet these tests are considered to be engaged in
law enforcement activities regardless of their rank, or of their status
as ``trainee,'' ``probationary,'' or ``permanent,'' and regardless of
their assignment to duties incidental to the performance of their law
enforcement activities such as equipment maintenance, and lecturing, or
to support activities of the type described in paragraph (g) of this
section, whether or not such assignment is for training or
familiarization purposes, or for reasons of illness, injury or
infirmity. The term would also include rescue and ambulance service
personnel if such personnel form an integral part of the public agency's
law enforcement activities. See Sec. 553.215.
(c) Typically, employees engaged in law enforcement activities
include city police; district or local police, sheriffs, under sheriffs
or deputy sheriffs who are regularly employed and paid as such; court
marshals or deputy marshals; constables and deputy constables who are
regularly employed and paid as such; border control agents; state
troopers and highway patrol officers. Other agency employees not
specifically mentioned may, depending upon the particular facts and
pertinent statutory provisions in that jurisdiction, meet the three
tests described above. If so, they will also qualify as law enforcement
officers. Such employees might include, for example, fish and game
wardens or criminal investigative agents assigned to the office of a
district attorney, an attorney general, a solicitor general or any other
law enforcement agency concerned with keeping public peace and order and
protecting life and property.
(d) Some of the law enforcement officers listed above, including but
not limited to certain sheriffs, will not be covered by the Act if they
are elected officials and if they are not subject to the civil service
laws of their particular State or local jurisdiction. Section 3(e)(2)(C)
of the Act excludes from its definition of ``employee'' elected
officials and their personal staff under the conditions therein
prescribed. 29 U.S.C. 203(e)(2)(C), and see Sec. 553.11. Such
individuals, therefore, need not be counted in determining whether the
public agency in question has less than five employees engaged in law
enforcement activities for purposes of claiming the section 13(b)(20)
exemption.
(e) Employees who do not meet each of the three tests described
above are not engaged in ``law enforcement activities'' as that term is
used in sections 7(k) and 13(b)(20). Employees who normally would not
meet each of these tests include
(1) Building inspectors (other than those defined in
Sec. 553.213(a)),
(2) Health inspectors,
(3) Animal control personnel,
(4) Sanitarians,
(5) civilian traffic employees who direct vehicular and pedestrian
traffic at specified intersections or other control points,
(6) Civilian parking checkers who patrol assigned areas for the
purpose of discovering parking violations and issuing appropriate
warnings or appearance notices,
(7) Wage and hour compliance officers,
(8) Equal employment opportunity compliance officers,
(9) Tax compliance officers,
(10) Coal mining inspectors, and
(11) Building guards whose primary duty is to protect the lives and
property of persons within the limited area of the building.
(f) The term ``any employee in law enforcement activities'' also
includes, by express reference, ``security personnel in correctional
instititions.'' A correctional institution is any government facility
maintained as part of a penal system for the incarceration or detention
of persons suspected or convicted of having breached the peace or
committed some other crime. Typically, such facilities include
penitentiaries, prisons, prison farms, county, city and village jails,
precinct house lockups and reformatories. Employees of correctional
institutions who qualify as security personnel for purposes of the
section 7(k) exemption are those who have responsibility for controlling
and maintaining custody of inmates and of safeguarding them from other
inmates or for supervising such functions, regardless of whether their
duties are performed inside the correctional institution or outside the
institution (as in the case of road gangs). These employees are
considered to be engaged in law enforcement activities regardless of
their rank (e.g., warden, assistant warden or guard) or of their status
as ``trainee,'' ``probationary,'' or ``permanent,'' and regardless of
their assignment to duties incidental to the performance of their law
enforcement activities, or to support activities of the type described
in paragraph (g) of this section, whether or not such assignment is for
training or familiarization purposes or for reasons of illness, injury
or infirmity.
(g) Not included in the term ``employee in law enforcement
activities'' are the so-called ``civilian'' employees of law enforcement
agencies or correctional institutions who engage in such support
activities as those performed by dispatcher, radio operators, apparatus
and equipment maintenance and repair workers, janitors, clerks and
stenographers. Nor does the term include employees in correctional
institutions who engage in building repair and maintenance, culinary
services, teaching, or in psychological, medical and paramedical
services. This is so even though such employees may, when assigned to
correctional institutions, come into regular contact with the inmates in
the performance of their duties.
