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<br />~553.21 O(b)
<br />
<br />keeping, equipment maintenance,
<br />tower repairs and/or the construction
<br />of fire roads, would also be within the
<br />section 7(k.) or 13(b)(20) exemption.
<br />(c) Not Included in the term "em-
<br />ployee in fire protection activities" are
<br />the so-called "civilian" employees of 'a
<br />fire department, fire district, or forest-
<br />ry service who engage in such support
<br />activities as those performed by dis-
<br />patchers, alarm operators, apparatus
<br />and equipment repair and mainte-
<br />nance workers, camp cooks. clerks, ste-
<br />nographers, etc.
<br />
<br />[52 FR 2032. Jan. 16, 1987; 52 FR 2648, Jan.
<br />23. 1987]
<br />~ 553.211 Law enforcement acth'ities.
<br />
<br />(a) As used in sections 7(k) and
<br />13(b)(20) of the Act, the term "any
<br />employee . . . in law enforcement ac-
<br />tivities" refers to any employee (1)
<br />who is a uniformed or plainclothed
<br />member of a body of officers and sub-
<br />ordinates who are empowered by State
<br />statute or local ordinance to enforce
<br />laws designed to maintain public peace
<br />and order and to protect both life and
<br />property from accidental or willful
<br />injury, and to prevent and detect
<br />crimes, (2) who has the power to
<br />arrest, and (3) who is presently under-
<br />going or has undergone or will under-
<br />go on-the-job training and/or a course
<br />of instruction and study which typical-
<br />ly includes physical training, self-de-
<br />fense, firearm proficiency, criminal
<br />and civil law principles, investigative
<br />and law enforcement techniques, com-
<br />munity relations, medical aid and
<br />ethics.
<br />(b) Employees who meet these tests
<br />are considered to be engaged in law
<br />enforcement activities regardless of
<br />their rank, or of their status as "train-
<br />ee," "probationary," or "permanent,"
<br />and regardless of their assignment to
<br />duties inCidental to the performance
<br />of their law enforcement activities
<br />such- as equipment maintenance, and
<br />lecturing, or to support activities of
<br />the type described in paragraph (g) of
<br />this section, whether or not such as-
<br />signment is for training or familiariza-
<br />tion purposes, or for reasons of illness,
<br />injury or infirmity. The term would
<br />also include rescue and ambulance
<br />service personnel if such personnel
<br />form an integral part of the public
<br />agency's law enforcement activities.
<br />See ~ 553.215.
<br />(c) Typically, employees engaged in
<br />law enforcement activities include city
<br />police; district or local police, sheriffs,
<br />under sheriffs or deputy sheriffs who
<br />are regularly employed and paid as
<br />such; court marshals or deputy mar-
<br />shals; constables and deputy consta-
<br />bles who are regularly employed and
<br />paid as such; border control agents;
<br />state troopers and highway patrol offi-
<br />cers. Other agency employees not spe-
<br />cifically mentioned may, depending
<br />upon the particular facts and perti-
<br />nent statutory provisions in that juris-
<br />diction. meet the three tests described
<br />above. If so, they will also qualify as
<br />law enforcement officers. Such em-
<br />ployees might include, for example,
<br />fish and game wardens or criminal in-
<br />
<br />vestigative agents assigned to the
<br />office of a district attorney, an attor-
<br />ney general, a solicitor general or any
<br />other law enforcement agency con-
<br />cerned with keeping public peace and
<br />order and protecting life and property.
<br />(d) Some of the law enforcement of-
<br />ficers listed above, including but not
<br />limited to certain sheriffs, will not be
<br />covered by the Act if they are elected
<br />officials and if they are not subject to
<br />the civil service laws of their particu-
<br />lar State or local jurisdiction. Section
<br />3(e)(2)(C) of the Act excludes from its
<br />definition of "employee" elected offi-
<br />cials and their personal staff under
<br />the conditions therein prescribed. 29
<br />U.S.C. 203(e)(2)(C), and see ~ 553.11.
<br />Such individuals, therefore, need not
<br />be counted in determining whether
<br />the public agency in question has less
<br />than five employees engaged in law
<br />enforcement activities for purposes of
<br />claiming the section 13(b)(20) exemp-
<br />tion.
<br />(e) Employees who do not meet each
<br />of the three tests described above are
<br />not engaged in "law enforcement ac-
<br />tivities" as that term Is used in sec-
<br />tlOIlf 7(k) and 13(b)(20). Employees
<br />who normallY would not meet each of
<br />these tests include
<br />(1) Building Inspectors (other than
<br />those defined In ~ 553.213(a)),
<br />(2) Health inspectors,
<br />(3) Animal control personnel,
<br />(4) Sanitarians,
<br />(5) civillan traffic employees who
<br />direct vehicular and pedestrian traffic
<br />at specified Intersections or other con-
<br />trol points,
<br />(6) Clvillan parking checkers who
<br />patrol assigned areas for the purpose
<br />of discovering parking violations and
<br />Issuing appropriate warnings or ap-
<br />pearance notices,
<br />(7) Wage and hour compliance offi-
<br />cers.
<br />(8) Equal employment opportunity
<br />compliance officers,
<br />(9) Tax compliance officers,
<br />(10) Coal mining inspectors. and
<br />(11) Building guards whose primary
<br />duty is to protect the lives and proper-
<br />ty of persons within the limited area
<br />of the building.
<br />
<br />(n The term "any employee in law
<br />enforcement activities" also includes,
<br />by express reference, "security person-
<br />nel in correctional instltitions." A cor-
<br />rectional Institution is any govern-
<br />ment facility maintained as part of a
<br />penal system for the Incarceration or
<br />detention of persons suspected or con-
<br />victed of having breached the peace or
<br />committed some other crime. Typical-
<br />ly, such facUities include penitentia-
<br />ries, prisons, prison farms, county, city
<br />and village jails, precinct house lock-
<br />ups and reformatories. Employees of
<br />correctional institutions who quaIlCy
<br />as security personnel for purposes of
<br />the section 7(k) exemption are those
<br />who have responsibility for controlling
<br />and maintaining custody of Inmates
<br />and of safeguarding them from other
<br />inmates or for supervising such func.
<br />tions, regardless of whether - their
<br />duties are performed inside the correc-
<br />
<br />9
<br />
<br />tional institution or outside the insti-
<br />tution (as In the case of road gangs).
<br />These employees are considered to be
<br />engaged in law enforcement activities
<br />regardless of their rank (e.g., warden,
<br />assistant warden or guard) or of their
<br />status as "trainee," "probationary," or
<br />"permanent," and regardless of their
<br />assignment to duties incidental to the
<br />performance of their law enforcement
<br />activities, or to support activities of
<br />the type described in paragraph (g) 01
<br />this section, whether or not such as-
<br />signment is for trainlng or familiariza-
<br />tion purposes or for reasons of illness,
<br />injury or Infirmity.
<br />(g) Not included in the term "em-
<br />ployee in law enforcement activities"
<br />are the so-called "civilian" employees
<br />of law enforcement agencies or corTf~C-
<br />tional institutions who engage in such
<br />- support activities as those performed
<br />by dispatcher, radio operators, appara-
<br />tus and equipment maintenance and
<br />repair workers, janitors. clerks and ste-
<br />nographers. Nor does the term include
<br />employees in correctional instltutlons
<br />who engage in building repair and
<br />maintenance, culinary services, teach-
<br />ing, or in psychological, medical and
<br />paramedical services. This is se even
<br />though such employees may, when as-
<br />signed to correctional institutions.
<br />come into regular contact with the in-
<br />mates in the performance of tl1f'ir
<br />duties.
<br />
<br />~ 553.2]2 Twenty percent Iimitstioh on
<br />nonexempt work.
<br />
<br />(a) Employees engaged in fire pro-
<br />tection or law enforcement activities
<br />as described in H 553.210 and 553.211.
<br />may also engage in some nonexempt
<br />work which is not perfornled 11.5 an In-
<br />cident to or in conjunction with their
<br />fire protection or law enforcement ac-
<br />tivities. For example, firefighters who
<br />work for forest conservation agencies
<br />may, during slack times, plant trees
<br />and perform other conservation activi-
<br />ties unrelated to their firefighting
<br />duties. The performance of such non-
<br />exempt work will not defeat either the
<br />section 13{b)(20) or 7(k) exemptions
<br />unless it exceeds 20 percent of the
<br />total hours worked by that employee
<br />during the workweek or applicable
<br />work period. A person who spends
<br />more than 20 percent of his/her work-
<br />ing time in nonexempt activities is not
<br />considered to be an employee engaged
<br />in fire protection or law enforcement
<br />activities for purposes of this part.
<br />(b) Public agency fire protection and
<br />law enforcement personnel may, at
<br />their own option, undertake employ-
<br />ment for the same employer on an oc-
<br />casional or sporadic and part-time
<br />basis in a different capacity from their
<br />regular employment. (See ~ 553.30.)
<br />The performance of such work does
<br />not affect the application of the sec-
<br />tion 13(b)(20) or 7(k) exemptions with
<br />respect to the regular employment. In
<br />addition, the hours of work In the dif-
<br />ferent capacity need not be counted as
<br />hours worked for overtime purposes
<br />on the regular job, nor are such hours
<br />counted in determining the 20 percent
<br />
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