Request By:
John S. Smith, Esq.
City Attorney, City of Lebanon
Lebanon, Kentucky 40033
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning the city police and overtime pay provisions. You refer to OAG 73-25 providing that the chief of police in a fourth class city is not entitled to overtime pay. You state that the city of Lebanon, a fourth class city, has recently established the position of assistant chief of police. The position and its salary have been established by municipal ordinance. One of the city's patrolmen has been appointed to the newly created position. As a patrolman he was entitled to overtime pay and you ask whether he is entitled to overtime pay now that he is an assistant chief of police.
KRS 337.285 provides in part as follows:
"No employer shall employ any of his employes for a work week longer than forty (40) hours, unless such employe receives compensation for his employment in excess of forty (40) hours a week at a rate of not less than one and one-half (1-1/2) times the hourly wage rate at which he is employed. . . ."
KRS 337.285 contains several exemptions but none of them involve municipal police officers. Policemen are not specifically excluded from any of the state minimum wage or overtime pay provisions unless police personnel are classified as executive, administrative, professional or supervisory personnel. In KRS 337.010(2)(c)(ii) an "employe" within the meaning of KRS 337.285 does not include:
"Any individual employed in a bona fide executive, administrative, supervisory or professional capacity, or in the capacity of an outside salesman, or as an outside collector as such terms are defined by administrative regulations of the commissioner;"
The commissioner of labor has promulgated regulations defining what constitutes an individual employed in a bona fide executive, administrative, supervisory or professional capacity, or in the capacity of an outside salesman and outside collector. We are enclosing a copy of 803 KAR 1:070 covering these matters. Note, for example, that Section 1 of the regulation defines an individual employed in a bona fide executive capacity as a person (1) whose primary duty consists of the management of the enterprise in which he is employed, (2) who customarily and regularly directs the work of two or more other employes, (3) who has the authority to hire or fire other employes or whose suggestions and recommendations as to hiring or firing and as to advancement and promotion of other employes will be given particular weight, (4) who customarily and regularly exercises discretionary powers, (5) who does not devote more than twenty percent of his hours of work in the workweek to activities which are not directly and closely related to the performance of the work described in subsections (1) to (4) of this section, (6) who is compensated for his services on a salary basis at a rate of not less than $155 per week, exclusive of board, lodging, or other facilities. Section (2) of the regulation defines an individual employed in a bona fide administrative capacity; section (3) defines an individual employed in a bona fide professional capacity, and section (4) defines an individual employed in a bona fide supervisory capacity.
If your assistant police chief is to fall within one of these categories and thus become exempt from the state provisions pertaining to minimum wage and overtime pay, he would have to meet all the criteria of that particular classification. You need not concern yourself with federal provisions as to minimum wage and overtime pay for city patrolmen and police chiefs as there are no such applicable provisions at this time. In National League of Cities v. Usery, Secretary of Labor, 426 U.S. 833, 49 L. Ed. 2d 245, 96 S. Ct. 2465 (1976), the United States Supreme Court held it was beyond the power of Congress under the Commerce Clause of the Constitution, via the Fair Labor Standards Act, to prescribe minimum wages and maximum hours to be paid by the states to their employes in the states' sovereign capacities. See OAG 76-418, copy enclosed. In other words, those provisions of the federal law setting minimum wages for state and local government employes are unconstitutional.
We cannot specifically answer your question as to whether the assistant chief of police is exempt from state provisions pertaining to minimum wages and overtime pay as we do not have enough specific information as to the duties, functions and salary of that position. If the assistant police chief is to be exempt from those provisions, he will have to meet the requirements of an individual employed in a bona fide executive, administrative, supervisory or professional capacity. You will have to apply the provisions and requirements of 803 KAR 1:070 to the position of assistant police chief to determine whether the person holding that position is employed in an executive, administrative, supervisory or professional capacity.
For further information and assistance you may wish to contact Mr. Jerry Hammond, Director, Division of Labor Standards, Kentucky Department of Labor, Capital Plaza Tower, Frankfort, Kentucky 40601 (Telephone - (502) 564-4912).