A 5276 — Clarifies overtime compensation requirements for certain public employees engaged in law enforcement and fire protection activities.

A5276 1R [First Reprint] ASSEMBLY, No.

Assemblyman  CHRIS TULLY District 38 (Bergen)    Co-Sponsored  by:   SYNOPSIS      Clarifies overtime compensation requirements for certain public employees engaged in law enforcement and fire protection activities.

Assemblyman Sampson   CURRENT  VERSION  OF  TEXTSYNOPSIS      AsClarifies introduced.overtime compensation requirements for certain public employees engaged in law enforcement and fire protection activities.

    AnCURRENT ActVERSION concerningOF overtimeTEXT compensation     forAs employeesreported inby firethe protectionAssembly activitiesLabor andCommittee amendingon P.L.1966,September c.113.14, 2026, with amendments.

   An Act concerning overtime compensation for employees in 1law enforcement and1 fire protection activities and 1supplementing and1 amending P.L.1966, c.113.

       1.   11.   Section(New 2section) ofThe P.L.1966,Legislature c.113finds (C.34:11-56a1)and isdeclares amendedthat: to read as follows:

     a.     In 2019, the Legislature passed, and the Governor signed into law, P.L.2019, c.32, which amended the “New Jersey State Wage and Hour Law,” P.L.1966, c.113 (C.34:11-56a et seq.), to raise, over time, the State minimum wage to $15 per hour, ensuring fair compensation for employees in the State.

     b.    While the original State minimum wage was not applicable to State and other public entities, P.L.2019, c.32 expanded the definition of employer to include these entities.  In doing so, the Legislature intended to ensure, as a matter of fundamental fairness, that government employers paid employees a minimum hourly wage just as private employers were required to pay employees.

     c.     In addition to minimum wage requirements, the “New Jersey State Wage and Hour Law,” P.L.1966, c.113 (C.34:11-56a et seq.), provides for overtime compensation for employees, specifically that an employer is required to pay each employee not less than one and one-half times the employee's regular hourly rate for each hour of working time in excess of 40 hours in any week, subject to certain exceptions.

     d.    Prior to the enactment of P.L.2019, c.32, overtime compensation for employees in fire protection activities or sworn law enforcement activities, including security personnel in correctional institutions, was governed by the “Fair Labor Standards Act of 1938” (29 U.S.C.

s.201 et seq.).

     e.     In 29 U.S.C.

s.207(k), the “Fair Labor Standards Act” recognizes that public employees who perform sworn law enforcement activities and fire protection activities have schedules that are particular to those essential public safety functions, which often result in those employees working more than 40 hours in a week as a matter of established practice by including a partial overtime exemption for public agencies employing personnel to perform sworn law enforcement activities and fire protection activities, allowing those employers to establish alternative work periods ranging from seven to 28 days rather than the standard seven-day workweek, mandating overtime pay only after a higher, specialized threshold of hours has been met.  This partial exemption allows for a common schedule utilized by many fire departments, both in the State and nationwide, where firefighters work 24 straight hours on duty, then 72 hours off duty, in a rotating cycle.

That schedule results in firefighters working 48 hours for three out of every four workweeks, then 24 hours in the fourth workweek, resulting in an average 42-hour shift.        f.     These particular schedules of employees performing sworn law enforcement activities and fire protection activities were negotiated freely between governmental entities and labor organizations representing these employees through the collective bargaining process, which the Legislature has no intention of disrupting, and have been operational and in effect long before the enactment of P.L.2019, c.32.  Further, various provisions in State law address circumstances wherein these employees are entitled to additional compensation which do not apply to the general public.

     g.    The Legislature is aware that litigation has been filed in numerous jurisdictions in New Jersey, asserting that because the Legislature did not expressly include language consistent with the “New Jersey State Wage and Hour Law,” P.L.1966, c.113 (C.34:11-56a et seq.), when P.L.2019, c.32 was enacted, employees performing sworn law enforcement activities and fire protection activities are entitled to overtime compensation after working in excess of 40 hours in a workweek.

This position does not correspond to the schedules actually worked by many of these employees and would require the unanticipated payment of substantial overtime for employees merely for working their contractually negotiated schedules.

     h.    If P.L.2019, c.32 is interpreted in this manner, the result will render many existing police and fire schedules non-viable by imposing a severe financial liability on public employers, particularly because both employers and employees have negotiated their collective negotiations agreements in good faith based upon a mutual understanding that overtime would be negotiated, rather than imposed by the “New Jersey State Wage and Hour Law,” P.L.1966, c.113 (C.34:11-56a et seq.).  Further, the liability to public employers Statewide, should the courts find in favor of the plaintiffs in those lawsuits, would represent a severe financial burden on New Jersey taxpayers that would represent a manifest injustice for them to bear.

     i.     Therefore, the Legislature finds and declares that there is an imperative need, and that is fair and appropriate, to clarify that when P.L.2019, c.32 was enacted, there was no intent to alter existing collectively bargained agreements made in good faith or to change exempted status concerning overtime compensation requirements established by 29 U.S.C.

207(k), and that the State and any county, municipality, or school district in the State, or any agency, authority, department, bureau, or instrumentality thereof, are not required as employers to pay employees performing sworn law enforcement activities and fire protection activities overtime, unless and until those employees exceed the limits established by 29 U.S.C.

207(k) and the associated United States Department of Labor regulations.

     j.     The Legislature further finds and declares its intention that this enactment be applied retroactively to the date P.L.2019, c.32 was enacted, as a clarifying and corrective measure, and to more fully and accurately express the Legislature’s intent when adopting P.L.2019, c.32, and to ensure that the courts do not interpret the “New Jersey State Wage and Hour Law,” P.L.1966, c.113 (C.34:11-56a et seq.) to find liability against public entities when that interpretation was not intended by the Legislature.1        1[1.] 2.1  Section of P.L.1966, c.113 (C.34:11-56a1) is amended to read as follows:

P.L.2020, c.89, s.1)        2.   1[2.] Section3.1  5Section of P.L.1966, c.113 (C.34:11-56a4) is amended to read as follows:

s.206), or a successor federal law, is raised to a level higher than the State minimum wage rate set by this subsection, then the State minimum wage rate shall be increased to the level of the federal minimum wage rate and subsequent increases based on increases in the CPI-W pursuant to this section shall be applied to the higher minimum wage rate.  If an applicable wage order has been issued by the commissioner under section 17 (C.34:11-56a16) of this act, the employer shall also pay not less than the wages prescribed in said order.  The wage rates fixed in this section shall not be applicable to persons under the age of 18 not possessing a special vocational school graduate permit issued pursuant to section 15 of P.L.1940, c.153 (C.34:2-21.15), or to persons employed as salesmen of motor vehicles, or to persons employed as outside salesmen as such terms shall be defined and delimited in regulations adopted by the commissioner, or to persons employed in a volunteer capacity and receiving only incidental benefits at a county or other agricultural fair by a nonprofit or religious corporation or a nonprofit or religious association which conducts or participates in that fair.

P.L.2023, c.262, s.8)        3.   1[3.] 4.1    This act shall take effect immediately.immediately1, and shall be retroactive to February 4, 20191.

    STATEMENT        This bill establishes standards for overtime for employees engaged in fire protection activities to ensure compliance with the “Fair Labor Standards Act of 1938.”  Under the bill “employee in fire protection activities” means an employee, including a firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazardous materials worker, who:

     (1) is trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department established or operated by the State or any municipality, county, fire district, joint meeting or regional service agency within the State;

and      (2) is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.

     Specifically, the bill provides that effective and retroactive to February 4, 2019, the State and any county, municipality, or school district in the State, or any agency, authority, department, bureau, or instrumentality thereof, including a joint meeting and a regional service agency, will not be deemed to have violated overtime compensation requirements with respect to the employment of any employee in fire protection activities or any employee in sworn law enforcement activities, including security personnel in correctional institutions, if:

     (a) in a work period of 28 consecutive days the employee receives for tours of duty which in the aggregate exceed 212 hours for fire protection activities or 171 hours for sworn law enforcement activities;

or      (b) in the case of such an employee to whom a work period of at least seven but less than 28 days applies, in the employee’s work period the employee receives for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in the employee’s work period as 212 hours for fire protection activities or 171 hours for sworn law enforcement activities bears to 28 days, compensation at a rate not less than one and one-half times the regular hourly rate at which the employee is employed.        The bill further provides that its provisions will be interpreted in a manner that is consistent with federal law and regulations.