Opinion Number ( 1997 )

Dear Mr. Caston:

This office is in receipt of your request for an opinion of the Attorney General in regard to overtime pay for public employees. You inquire as to the obligation to pay overtime in a 40 hour work week in which there is a legal holiday or when emergencies, such as a storm, has caused employees to be called out at night or on a holiday. You indicate it has been the policy of the police jury to pay straight time for the extra hours worked, but some are of the opinion it should be overtime pay. Accordingly, you ask to be advised as to the proper procedure concerning this matter.

This office has recognized that the Federal Fair Labor Standards Act, 29 U.S.C. § 201 et seq., is applicable to political subdivisions of the State and that the Act provides in Section 207 "that no employer shall employ any of his employees for a work week longer than forty hours unless such employee receives compensation at a rate not less than one and one-half times the regular rate of pay." Atty. Gen. Op. No. 90-619. However, it has also been recognized that 29 U.S.C. § 207 permits employees of a political subdivision of a state to receive, in lieu of overtime compensation, compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation is required. Atty. Gen. Op. Nos., 92-813, 90-619. It should further be recognized that there are exceptions set forth in 29 U.S.C. § 207 to overtime pay that include law enforcement and fire protection employees, Atty. Gen. Op. Nos. 92-813, 92-98, and professionals, Barrilleaux v. Franklin Foundation Hospital,683 So. 2d 348 (La.App. 1996).

In Atty. Gen. Op. No. 87-307 this office was asked if the number of paid state holidays observed by the City Court employees could be restricted, and it was concluded the holidays in R.S. 1:55 (E) are mandatory holidays and could not be restricted by a municipality. It was observed in Atty. Gen. Op. No. 86-731, "Holiday by its very concept connotes a day from work with pay, not simply a closing of business."

Therefore, your inquiry is regulated by the Fair Labor Standards Act, and therein it is provided that work time over the regular forty hour work week which includes the eight hours of a holiday or emergency work, would be overtime pay of time and a half. However, an overtime policy can be established by agreement with the police Jury that permits compensatory time of one and one-half hours time off in lieu of overtime pay of one and one-half times regular pay.

We hope this sufficiently answers your inquiry, but if we can be of further assistance, do not hesitate to contact us.

Sincerely yours,

RICHARD P. IEYOUB Attorney General

By: ____________________________ BARBARA B. RUTLEDGE Assistant Attorney General

BBR