(a) Section 7(p)(1) 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 their 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.
(b) 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.
(c) Whether two employers are, in fact, separate and independent can
only be determined on a case-by-case basis.
(d) The primary employer may facilitate the employment or affect the
conditions of employment of such employees. For example, a police
department may maintain a roster of officers who wish to perform such
work. The department may also select the officers for special details
from a list of those wishing to participate, negotiate their pay, and
retain a fee for administrative expenses. The department may require
that the separate and independent employer pay the fee for such services
directly to the department, and establish procedures for the officers to
receive their pay for the special details through the agency's payroll
system. Finally, the department may require that the officers observe
their normal standards of conduct during such details and take
disciplinary action against those who fail to do so.
(e) Section 7(p)(1) applies to special details even where a State
law 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. For example, a city ordinance
may require the presence of city police officers at a convention center
during concerts or sports events. If the officers perform such work at
their own option, the hours of work need not be combined with the hours
of work for their primary employer in computing overtime compensation.
(f) The principles in paragraphs (d) and (e) of this section with
respect to special details of public agency fire protection and law
enforcement employees under section 7(p)(1) are exceptions to the usual
rules on joint employment set forth in part 791 of this title.
(g) Where an employee is directed by the public agency to perform
work for a second employer, section 7(p)(1) does not apply. Thus,
assignments of police officers outside of their normal work hours to
perform crowd control at a parade, where the assignments are not solely
at the option of the officers, would not qualify as special details
subject to this exception. This would be true even if the parade
organizers reimburse the public agency for providing such services.
(h) Section 7(p)(1) does not prevent a public agency from
prohibiting or restricting outside employment by its employees.
Overtime Compensation Rules
