Request By:
Mr. Russell E. Lane
Chief of Police
City of Richmond
Richmond, Kentucky 40475
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter presenting several questions concerning the Richmond Police Department and training programs it has planned for 1979.
The proposed training programs would be divided into two two-hour seminars to be conducted twice monthly. Attendance would be mandatory for job related training programs. This training is in addition to training received from the Bureau of Training, K.L.E.C. Training officers within the department would present seminars involving police department policies, procedures and new laws. Attending officers would be reimbursed for their time with compensatory time. You ask whether this conflicts with KRS 95.497 concerning the hours of work for police office's in third class cities.
You also state that because of personnel shortages and lack of time to complete reports and investigations during the regular eight-hour work shift, some police officers have volunteered to work extra hours. In the past those officers were compensated with salary at the rate of time and a half. Police officers work on an hourly wage scale and are paid bi-weekly. You ask whether they may now accumulate compensatory time for this extra duty instead of salary. Additional questions are raised concerning the utilization of the compensatory time so earned.
Richmond is, of course, a city of the third class [KRS 81.010(3)] and KRS 95.497 provides in part as follows:
"(1) In all cities of the third class except those in which, by ordinance, the patrolmen are employed or paid by the day, the members of the police department shall not be required to work more than eight (8) hours per day, for five (5) days each week, except in the event of an emergency. . . ."
While the statute provides that members of the police department cannot be required or compelled to work beyond the stated hours and days per week, those members of the police force who desire to work beyond the stated period may do so provided that the police officers and the city mutually agree to such an arrangement. See OAG 72-23, copy enclosed.
KRS 337.285 states 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 in a work 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. . . ."
This state's minimum wage and overtime pay provisions do not exclude police officers unless they are classified as executive, administrative, professional or supervisory personnel. Ordinary police officers do not fall within this exclusion and are, therefore, covered by the overtime pay provisions of KRS 337.285. See OAG 75-216, copy enclosed, at page one.
The Kentucky Department of Labor has promulgated various regulations pertaining to overtime pay requirements and they are found in 803 KAR 1:060. Section 3 thereof provides that each workweek stands alone and averaging of hours over two or more weeks is not permitted. An employe must receive overtime compensation for the overtime hours worked in any particular week. Section 5 states that the general overtime pay standard requires that overtime must be compensated at a rate not less than one and one-half times the hourly rate at which the person is employed. Section 7 provides that where an employe is employed solely on the basis of a single hourly rate the overtime he must be paid, in addition to his straight time hourly earnings, is a sum determined by multiplying one-half the hourly rate by the number of hours worked in excess of forty in the workweek.
In response to your second group of questions concerning the police officers who are voluntarily working extra hours and whether they can accumulate compensatory time for this extra duty instead of salary, we express the following opinions:
1. Members of the police department in cities of the third class cannot be required to work beyond the hours and days per week stated in KRS 95.497. They may work extra hours if they and the city can mutually agree to such an arrangement.
2. Police officers working extra hours by mutual agreement and subject to the overtime pay provisions of KRS 337.285 must receive wages for the overtime hours at the rate of at least one and one-half times the hourly wage rate at which they are employed. There are no provisions in the minimum wage and overtime pay provisions allowing police officers to receive time off work or compensatory time instead of wages for the overtime hours. See OAG 75-216, at page two.
3. There is no need to answer your other questions concerning the utilization of compensatory time earned for overtime work since compensatory time cannot be received for overtime hours of work.
Before responding to your first group of questions concerning the required training programs and the awarding of compensatory time to officers attending such programs we direct your attention to 803 KAR 1:065 dealing with "Hours worked" and particularly Section 6 (subsection one thereof) pertaining to "Lectures, meetings and training programs." Attendance at lectures, meetings and training programs need not be counted as working time if attendance is outside of the employe's regular working hours; attendance is voluntary; the course, lecture, or meeting is not directly related to the employe's job; and the employe does not perform any productive work during such attendance. In OAG 75-216, at page three, we said that where police officers were required to attend a recertification breathalizer school outside of regular working hours, such an activity would constitute working time and subject to compensation. Only where all the criteria of 803 KAR 1:065, section 6, subsection 1, are satisfied would the police officers' attendance not be considered working time.
In response to your first group of questions we express the following opinions:
1. Members of the police department in cities of the third class cannot be required to work beyond the hours and days per week stated in KRS 95.497. If the department institutes a training program for its police officers, the police officers can only be required to attend the program if it is conducted at sometime during the forty hours per week during which they are required to work.
2. A training program for police officers could be held in addition to and beyond the normal workweek if the police officers and the city can mutually agree on such an arrangement. While such a program could not be made mandatory, participation in such a program would be considered working time and police officers would have to be compensated for such working time.
3. If police officers attend a job-related training session which is held in addition to their required workweek, they must be compensated for the hours put forth at the training session, which would be considered working time, pursuant to the overtime pay provisions of KRS 337.285 and they could not receive compensatory time instead of wages for overtime hours.