(a) Section 7(o)(3)(A) of the FLSA provides that an employee of a
public agency which is a State, a political subdivision of a State, or
an interstate governmental agency, may accumulate not more than 480
hours of compensatory time for FLSA overtime hours which are worked
after April 15, 1986, if the employee is engaged in ``public safety'',
``emergency response'', or ``seasonal'' activity. Employees whose work
includes ``seasonal'', ``emergency response'', or ``public safety''
activities, as well as other work, will not be subject to both limits of
accrual for compensatory time. If the employee's work regularly involves
the activities included in the 480-hour limit, the employee will be
covered by that limit. A public agency cannot utilize the higher cap by
simple classification or designation of an employee. The work performed
is controlling. Assignment of occasional duties within the scope of the
higher cap will not entitle the employer to use the higher cap.
Employees whose work does not regularly involve ``seasonal'',
``emergency response'', or ``public safety'' activities are subject to a
240-hour compensatory time accrual limit for FLSA overtime hours which
are worked after April 15, 1986.
(b) Employees engaged in ``public safety'', ``emergency response'',
or ``seasonal'' activities, who transfer to positions subject to the
240-hour limit, may carry over to the new position any accrued
compensatory time. The employer will not be required to cash out the
accrued compensatory time which is in excess of the lower limit.
However, the employee must be compensated in cash wages for any
subsequent overtime hours worked until the number of accrued hours of
compensatory time falls below the 240-hour limit.
(c) ``Public safety activities'': The term ``public safety
activities'' as used in section 7(o)(3)(A) of the Act includes law
enforcement, fire fighting or related activities as described in
Secs. 553.210 (a) and (b) and 553.211 (a)-(c), and (f). An employee
whose work regularly involves such activities will qualify for the 480-
hour accrual limit. However, the 480-hour accrual limit will not apply
to office personnel or other civilian employees who may perform public
safety activities only in emergency situations, even if they spend
substantially all of their time in a particular week in such activities.
For example, a maintenance worker employed by a public agency who is
called upon to perform fire fighting activities during an emergency
would remain subject to the 240-hour limit, even if such employee spent
an entire week or several weeks in a year performing public safety
activities. Certain employees who work in ``public safety'' activities
for purposes of section 7(o)(3)(A) may qualify for the partial overtime
exemption in section 7(k) of the Act. (See Sec. 553.201)
(d) ``Emergency response activity'': The term ``emergency response
activity'' as used in section 7(o)(3)(A) of the Act includes dispatching
of emergency
vehicles and personnel, rescue work and ambulance services. As is the
case with ``public safety'' and ``seasonal'' activities, an employee
must regularly engage in ``emergency response'' activities to be covered
under the 480-hour limit. A city office worker who may be called upon to
perform rescue work in the event of a flood or snowstorm would not be
covered under the higher limit, since such emergency response activities
are not a regular part of the employee's job. Certain employees who work
in ``emergency response'' activities for purposes of section 7(o)(3)(A)
may qualify for the partial overtime exemption in section 7(k) of the
Act. (See Sec. 553.215.)
(e)(1) ``Seasonal activity'': The term ``seasonal activity''
includes work during periods of significantly increased demand, which
are of a regular and recurring nature. In determining whether employees
are considered engaged in a seasonal activity, the first consideration
is whether the activity in which they are engaged is a regular and
recurring aspect of the employee's work. The second consideration is
whether the projected overtime hours during the period of significantly
increased demand are likely to result in the accumulation during such
period of more than 240 compensatory time hours (the number available
under the lower cap). Such projections will normally be based on the
employer's past experience with similar employment situations.
(2) Seasonal activity is not limited strictly to those operations
that are very susceptible to changes in the weather. As an example,
employees processing tax returns over an extended period of
significantly increased demand whose overtime hours could be expected to
result in the accumulation during such period of more than 240
compensatory time hours will typically qualify as engaged in a seasonal
activity.
(3) While parks and recreation activity is primarily seasonal
because peak demand is generally experienced in fair weather, mere
periods of short but intense activity do not make an employee's job
seasonal. For example, clerical employees working increased hours for
several weeks on a special project or assigned to an afternoon of
shoveling snow off the courthouse steps would not be considered engaged
in seasonal activities, since the increased activity would not result in
the accumulation during such period of more than 240 compensatory time
hours. Further, persons employed in municipal auditoriums, theaters, and
sports facilities that are open for specific, limited seasons would be
considered engaged in seasonal activities, while those employed in
facilities that operate year round generally would not.
(4) Road crews, while not necessarily seasonal workers, may have
significant periods of peak demand, for instance during the snow plowing
season or road construction season. The snow plow operator/road crew
employee may be able to accrue compensatory time to the higher cap,
while other employees of the same department who do not have lengthy
periods of peak seasonal demand would remain under the lower cap.
[52 FR 2032, Jan. 16, 1987; 52 FR 2648, Jan. 23, 1987]
