Opinion Letter Issued by the Department of Labor on Calculating Overtime and more...

On September 30, 2025, the Department of Labor's (DOL) Wage and Hour Division issued a new opinion letter clarifying that "emergency pay" premiums provided to firefighters and other non-exempt employees during declared emergencies must be included in the regular rate of pay when calculating overtime premiums under the Fair Labor Standards Act (FLSA).

The DOL reviewed a request from a firefighter/paramedic in a Texas municipality, who inquired about the city's emergency pay policy. This policy provides a 50% premium (half the employee's base hourly rate) for every hour worked during declared emergency periods. The firefighter believed that this payment should be included in overtime calculations and sought confirmation from the DOL.

The DOL concluded that the emergency pay does not qualify for any statutory exclusion from the regular rate under Section 7(e) of the FLSA. Specifically, the payment fails the three-prong test for discretionary bonuses because, (1) once the emergency work is performed, the employer has no discretion whether to pay, (2) the amount is predetermined (50% of base rate), not discretionary, and (3) the amount is determined before the work is performed, not "at or near the end of the period."

The payment doesn't qualify as an exclusion from overtime under Sections 7(e) because the payment is not contingent on working beyond a specified number of hours (e.g., 8 hours/day or 40 hours/week), working on weekends, holidays, or special days, nor working outside regular hours or workdays. Rather, the emergency pay is a premium for hazardous or arduous work conditions, similar to night shift differential, which federal regulations specifically state must be included in the regular rate.

The DOL provided this example for proper overtime calculation:

An employee earning $20/hour works 50 hours in a week, with 20 of those hours during an emergency period:

Straight-time earnings: (50 hours × $20) + (20 hours × $10 emergency premium) = $1,200

Regular rate: $1,200 ÷ 50 hours = $24/hour

Overtime premium: $24 × 0.5 = $12/hour for 10 OT hours = $120

Total compensation: $1200 regular rate + $120 overtime premium = $1,320

Public sector employers with similar emergency pay policies should determine whether emergency, hazard, or other conditional premium pay is being properly included in regular rate calculations. Employers should also consider whether retroactive adjustments may be needed.

The opinion applies specifically to the facts presented in the letter, but provides important guidance for employers providing premium pay for working during emergencies, hazardous conditions, or other special circumstances that don't fit within the narrow FLSA exclusions.

      

The Illinois Supreme Court ruled this week that the Illinois Public Employee Disability Act (PEDA) does not prohibit public employers from withholding employment taxes from payments made to an employee receiving benefit payments under that Act. 

Read more at the Municipal Minute: https://municipalminute.ancelglink.com/2025/09/city-could-withhold-employment-taxes.html 

      

In Nawara v. Cook County (7th Cir. 2025), the Seventh Circuit made a significant ruling that greatly expands ADA liability for employers. In this case, a Cook County correctional officer (Nawara) was subjected to a fitness-for-duty examination following a series of altercations with supervisors before being permitted to return to work. Despite Nawara agreeing to submit to the exam and never claiming to have an actual or perceived disability, the court still found that the medical examination violated the ADA's prohibition against unlawful medical inquiries.

 The Seventh Circuit's decision holds that non-disabled employees can recover back pay and other monetary damages when subjected to unlawful medical examinations under the ADA. This ruling directly contradicts the traditional understanding that ADA monetary remedies were primarily available only to employees who could establish actual or perceived disabilities. The court emphasized that the ADA's medical inquiry provisions protect all employees' privacy rights, regardless of disability status.

Employers should exercise caution when requiring workplace medical examinations and fitness-for-duty evaluations. Such requests must be specifically job-related and consistent with business necessity. Employers should consult legal counsel if unsure of the circumstances when requiring an employee to undergo a medical examination.

      

Navigating Immigration Compliance Amidst Renewed Federal Enforcement

Since January, the current administration has enacted a series of executive orders aimed intensifying immigration enforcement. These directives have significant implications for municipal employers, particularly where local policies may intersect with federal mandates.​ In consideration of recent executive orders combined with the recent amendments to Illinois' Right to Privacy in the Workplace Act, it's crucial to understand current obligations for HR staff and providing support to employees that may have heightened concerns for their family.

Executive Order 14159, titled "Protecting the American People Against Invasion," expands expedited removal procedures and seeks to penalize non-compliant jurisdictions by withholding federal funding. Additionally, the administration has targeted sanctuary cities, directing the publication of lists identifying non-cooperative localities and threatening legal action against them.

These developments underscore the necessity for municipal employers to meticulously review and reinforce their compliance protocols, particularly concerning Form I-9 audits and the utilization of E-Verify systems. Staying abreast of both federal initiatives and state-specific amendments, such as Illinois' recent changes to the Right to Privacy in the Workplace Act, is crucial in navigating this evolving landscape. It is also important to be prepared to support employees amid fears of ICE enforcement actions.

Preparing for I-9 Audits

An I-9 audit typically begins with a Notice of Inspection (NOI) from U.S. Immigration and Customs Enforcement (ICE). Employers typically have three business days to present the requested I-9 forms and supporting documentation. Being proactive and organized can mitigate potential penalties.​

• Ensure that each form is complete, accurate, and retained for the appropriate duration, either three years after the date of hire or one year after employment ends, whichever is later.
• If discrepancies are found, correct them by drawing a line through the incorrect information, entering the correct data, and initialing and dating the correction. Do not use correction fluid or erase errors. ​
• Keep detailed records of the audit process, findings, and corrective actions taken. This demonstrates good faith and can be beneficial if audited by ICE. ​ 

Ensure that HR personnel and staff involved in the I-9 process are adequately trained on the latest requirements and best practices to prevent future errors.​

Illinois E-Verify Amendment Update

Effective January 1, 2025, Illinois' amendments to the Right to Privacy in the Workplace Act imposing new requirements for employers using E-Verify.

Using E-Verify is not mandatory in Illinois, though employers choosing to use it must adhere to specific conditions. All employees handling E-Verify must complete computer-based training provided by the system. ​

·        Employers must display the following posters in both English and Spanish:​

• Right to Privacy in the Workplace/E-Verify poster​
• E-Verify Participation poster
• Department of Justice Immigrant and Employee Rights Section poster​ 

Employers are prohibited from:

• Using E-Verify to pre-screen job applicants before a job offer is made
• Checking the immigration status of current employees without proper cause.​
• Reverifying documents or singling out employees based on ethnicity, language, or appearance.
• Taking adverse action against employees or applicants who file complaints regarding E-Verify misuse. 

Upon enrolling in E-Verify employers must:​

• File an attestation confirming receipt of training materials, completion of required training, and posting of necessary notices.​
• Maintain signed originals of the attestation form and training certificates, making them available for inspection by the Illinois Department of Labor.

Recommendations for Municipal Employers

• Assess current employment verification policies to ensure alignment with both federal and state requirements.​
• Schedule periodic internal audits to maintain compliance and address issues proactively.​
• Keep abreast of changes in employment verification laws and update procedures accordingly.​
• Engage with legal experts specializing in employment law to navigate complex compliance issues.​

     

Related Stories

• COVID-19 Vaccination Mandate Developments to Watch
• Vaccination Mandate for Private Sector Employers with 100 Employees
• Status of Vaccination Requirements for EMTs and Paramedics

 

The Municipal Minute recently posted the following article, which we have reprinted here: 

A police officer filed an application for line-of-duty disability benefits after being injured during mandatory “wellness and resiliency” training, which involved classroom instruction and stretching, yoga, and other physical movements. During the stretches, the officer experienced back pain and was later diagnosed with various spinal conditions, undergoing two unsuccessful surgeries. Despite receiving treatment, the officer was unable to return to work with the police department.

The Retirement Board of the Policemen’s Annuity and Benefit Fund of the City of Chicago (Pension Board) found that the officer was entitled to ordinary disability benefits, but denied her duty disability benefits because her injury did not result from an “act of police duty inherently involving special risk,” as required by the Illinois Pension Code. Ordinary disability benefits are 50% of the officer’s salary, as opposed to 75% for duty disability benefits.

On appeal, both the circuit court and the appellate court affirmed the Pension Board’s denial of the officer’s duty benefits. To determine if an officer is injured “in the performance of an act of duty” to be eligible for duty disability benefits, courts look at the capacity in which the officer was acting when injured, rather than the precise physical act that caused the injury. Here, the courts found that the officer was stretching and performing breathing exercises while dressed in plain clothes, for the purpose of relaxing and living a healthier lifestyle. As a result, the courts found that the officer was injured in the capacity of an individual seeking to calm herself and live a healthier lifestyle, as any regular civilian might do – but not in a police officer capacity. Additionally, although the training was mandatory, an activity being mandatory does not automatically make it an “act of duty” when the activity has a clear counterpart in civilian life. Gonzales v. Retirement Bd. of the Policemen’s Annuity and Benefit Fund of the City of Chicago, 2025 IL App (1st) 242166-U.