If my Arkansas police department's federal-grant overtime threshold is 80 hours of work in a two-week pay period, do my sick days, vacation, and comp time count toward that 80-hour total?
Plain-English summary
State Representative Ron McNair asked the AG whether Arkansas law enforcement officers working overtime shifts under Federal Highway Safety Grants accrue overtime pay when they take sick leave, vacation, or comp time during the pay period. Under the contracts at issue, time-and-a-half kicks in only after 80 hours of "actual work" in a two-week pay period. Officers feel penalized when leave hours don't count toward the 80-hour threshold.
Attorney General Tim Griffin gave a clear answer: under both Arkansas law and federal law, only hours actually worked count toward the overtime threshold. Vacation, sick leave, holiday pay, and comp time are not "hours worked." An officer who works 60 hours and takes 20 hours of vacation in a two-week pay period has worked 60 hours, not 80, and does not get overtime pay until actual work exceeds the threshold.
The legal pieces:
- The Arkansas Minimum Wage Act, A.C.A. § 11-4-211(e), requires public agencies to pay law enforcement and fire protection personnel overtime "in compliance with 29 U.S.C. § 207(k)" as that section existed on March 1, 2006. Arkansas piggybacks on the federal partial-overtime exemption.
- 29 U.S.C. § 207(k) lets law enforcement employers use a "work period" of 7 to 28 consecutive days. The proportionate threshold for a 14-day work period is 86 hours (the same ratio as 171 hours over 28 days). Agencies can contract for a lower threshold, like 80 hours.
- "Hours worked" excludes paid leave. 29 C.F.R. § 778.218(a) is explicit: payments for vacation, holiday, illness, or similar non-working periods are not compensation for hours of employment, are excluded from the regular rate of pay, and cannot be credited toward overtime.
The AG also pointed out that overtime under the FLSA isn't a "standard benefit attached to a pay cycle." It's a premium for the strain of actual extra work. Officers become legally entitled to the time-and-a-half rate only after their actual on-duty hours exceed the threshold.
The AG explicitly declined to opine on the terms of any specific contract between an agency and the Federal Highway Safety Grant Program. The opinion is limited to what state and federal law require.
What this means for you
If you're an Arkansas patrol officer or deputy
When your two-week pay period includes paid time off, the math gets unfriendly. A practical illustration:
- You're scheduled for 80 hours under a federal-highway-safety-grant arrangement.
- You take 8 hours of sick leave during the period.
- You actually work 72 hours.
- Under your contract's 80-hour threshold, you don't get any overtime pay this period, even though your scheduled (and paid) hours total 80.
That's not your employer being cheap; it's how the FLSA defines "hours worked." If you want a different result, the union or the contract is where you negotiate it. The law itself does not require agencies to count paid leave toward the threshold.
If you administer payroll for an Arkansas law enforcement agency
Three audit checks for your timekeeping:
- Confirm the work period in your written FLSA election. Without a written, posted election, you default to a 40-hour workweek, which is much friendlier to overtime.
- Make sure your timekeeping software classifies leave codes correctly. Vacation, sick, holiday, comp time used, and compensatory absence should all not feed the overtime threshold counter. Compensatory absence at the regular rate is the same as vacation under § 778.218(a).
- Cross-check 29 C.F.R. § 778.218 quarterly. Department of Labor Wage and Hour interpretations evolve, and the reference guide cited in this opinion is updated periodically.
If you're a city or county attorney advising a police department
This opinion is useful as persuasive authority for officers who feel shortchanged on overtime. It's specific to police-and-fire-only § 207(k) employees on a 14-day work period with a contractually-lowered threshold of 80 hours. Don't extend it without checking. For non-§ 207(k) employees (general municipal employees, civilian dispatchers in some configurations), the standard 40-hour-workweek rule applies and the analysis is different.
If you're a police union representative or labor negotiator
The opinion confirms that the count-paid-leave-toward-overtime question is contractually negotiable. Federal law sets a floor (paid leave doesn't count) but does not preclude an agency from voluntarily counting paid leave or using a more favorable work period. If officers feel "penalized" for using leave, the fix is in the next CBA, not in a Wage-and-Hour complaint.
If you're a federal-grant administrator
When federal grant programs require officers to work specialized shifts under contracts that set their own pay-period thresholds, the FLSA-floor rules still apply. Make sure grantee agencies understand that a contractually-set 80-hour threshold is a payroll convention, not a redefinition of "hours worked" under federal law.
Common questions
Q: Is my comp time counted toward the 80-hour threshold?
A: No. Comp time used (taken as paid time off) is treated like vacation or sick leave under 29 C.F.R. § 778.218(a) and is not "hours worked." Comp time accrued, however, is earned at time-and-a-half for hours actually worked above the threshold, so the question is asymmetric.
Q: What if my collective bargaining agreement says paid leave counts as hours worked?
A: Then the CBA controls for purposes of overtime calculation, because it's giving you more than the federal floor requires. The FLSA sets a minimum, not a maximum. But that's a contract negotiation, not what federal law requires.
Q: I worked 90 hours and took 10 hours of vacation. Is the 10 hours over 80 paid at time-and-a-half?
A: Hours 81 through 90 of actual work are paid at time-and-a-half (assuming an 80-hour threshold and that all 90 hours were "hours worked"). The 10 hours of vacation are paid at your regular rate as vacation pay, separately. Vacation hours don't accrue overtime regardless.
Q: Why is the federal threshold 86 hours but our contract says 80?
A: § 207(k) lets the employer pick a work period of 7-28 days. For 14 days, the federal floor is 86 hours. Agencies can contract for a lower threshold (more friendly to officers). 80 hours is a common contractual setting because it lines up with two standard 40-hour weeks.
Q: Does this opinion change the law?
A: No. It restates existing federal and Arkansas law for officers asking why their leave doesn't count toward the threshold. The AG explicitly noted he can't opine on specific contract terms.
Q: Are firefighters in the same boat?
A: Yes. § 207(k) applies to both law enforcement and fire protection personnel. The proportionate threshold formula is slightly different (171 hours over 28 days for fire; 212 hours for law enforcement is the federal default; the work period the agency picks scales the threshold).
Background and statutory framework
The Fair Labor Standards Act normally requires nonexempt employees to receive time-and-a-half for hours worked over 40 in a workweek. 29 U.S.C. § 207(k) carves out a partial exemption for state and local public-agency law enforcement and fire protection employees, allowing employers to use a "work period" of 7 to 28 consecutive days and a corresponding pro-rated threshold.
Arkansas adopted this federal floor through its Minimum Wage Act, A.C.A. § 11-4-211(e), which incorporates 29 U.S.C. § 207(k) by reference as it existed on March 1, 2006.
The "hours worked" definition is the linchpin. The DOL guidance the AG cites defines hours worked as "all time an employee must be on duty, or on the employer's premises or at any other prescribed place of work, from the beginning of the first principal activity of the work day to the end of the last principal work activity of the work day," plus any time the employee is "suffered or permitted" to work.
29 C.F.R. § 778.218(a) carves out paid absences. Payments for vacation, holiday, illness, "or other similar cause" that are roughly equivalent to normal earnings for that period are not compensation for hours of employment, are excluded from the regular rate of pay, and cannot be credited toward overtime.
The Federal Highway Safety Grant program (administered by NHTSA and operated locally through the Arkansas Highway Safety Office under the Department of Public Safety) funds specialized enforcement shifts focused on impaired driving, seat-belt enforcement, and similar campaigns. Officers working these shifts typically operate under separate pay arrangements outside their normal patrol duties.
Citations and references
Statutes and regulations:
- A.C.A. § 11-4-211, Arkansas Minimum Wage Act overtime provisions
- 29 U.S.C. § 207(k), FLSA partial overtime exemption for law enforcement and fire protection
- 29 U.S.C. § 203(o), clothes-changing/washing exclusion under CBA
- 29 C.F.R. § 778.218: paid-leave exclusion from hours worked
Department of Labor guidance:
- U.S. Dep't of Labor, Wage & Hour Div., Handy Reference Guide to the Fair Labor Standards Act (Revised Nov. 2023), https://www.dol.gov/agencies/whd/compliance-assistance/handy-reference-guide-flsa
Source
Original opinion text
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-109
January 15, 2026
The Honorable Ron McNair
State Representative
10819 Daffodil Court
Harrison, Arkansas 72601
Dear Representative McNair:
I am writing in response to your request for an opinion regarding overtime pay for law enforcement officers. You state that police departments across the state sign annual contracts for federal highway safety grants, which are managed by the Arkansas Highway Safety Office within the Arkansas Department of Public Safety. You further explain that officers receive time-and-a-half pay only after exceeding 80 hours of actual work in a two-week pay period. If an officer takes compensatory time, sick leave, or annual leave, those hours do not count toward the 80-hour threshold; overtime pay does not begin until the officer's actual work hours surpass that mark.
You convey that some officers feel penalized for taking time off but not receiving overtime pay until their actual work hours exceed 80 hours during a two-week period. You also note that when officers work these specialized shifts, they are not allowed to perform normal patrol duties for the agency.
Against this background, you ask the following question:
Based upon an underlying contractual agreement between the Federal Highway Safety Grants Program and the agency to have its officers work specialized shifts for set pay, does the 80-hour threshold of actual work apply to the officer receiving payment for services rendered?
RESPONSE
I cannot opine on the terms of any contract. But neither Arkansas law nor federal law requires overtime to be paid until an employee actually works beyond the applicable overtime threshold during the relevant pay period.
DISCUSSION
I cannot opine on the terms of any contract between a law enforcement agency and the Federal Highway Safety Grant Program. Instead, my analysis is limited to Arkansas and federal law.
For law enforcement and fire protection personnel, the Arkansas Minimum Wage Act requires public agencies to pay "overtime pay in compliance with 29 U.S.C. § 207(k), as it existed on March 1, 2006[,]" otherwise known as the Fair Labor Standards Act (FLSA). The FLSA generally requires that covered nonexempt employees be paid overtime, at least time and one-half their regular rates of pay, for all hours worked beyond 40 in a workweek. However, 29 U.S.C. § 207(k) provides an exemption for law enforcement and fire protection employees. These employees may accrue overtime based on a "work period," ranging from 7 to 28 consecutive days. For work periods of at least 7 but fewer than 28 days, overtime pay is required when the hours worked exceed the proportionate threshold, calculated by applying the same ratio of hours to days as 171 hours bears to 28 days. For example, in a 14-day work period, overtime begins after 86 hours worked. Agencies may contractually agree to a lower threshold, such as the 80 hours you mentioned.
Crucially, whether a law enforcement employee has met the overtime threshold depends on the definition of "hours worked." While "hours worked" is not precisely defined in the FLSA, Department of Labor guidance interprets it to include:
[A]ll time an employee must be on duty, or on the employer's premises or at any other prescribed place of work, from the beginning of the first principal activity of the work day to the end of the last principal work activity of the work day. Also included is any additional time the employee is allowed (i.e., suffered or permitted) to work.
Missing from that definition are hours paid for vacation, sick leave, and compensatory time. This exclusion is explained in 29 C.F.R. § 778.218(a), which states:
Payments which are made for occasional periods when the employee is not at work due to vacation, holiday, illness, failure of the employer to provide sufficient work, or other similar cause, where the payments are in amounts approximately equivalent to the employee's normal earnings for a similar period of time, are not made as compensation for his hours of employment. Therefore, such payments may be excluded from the regular rate of pay under section 7(e)(2) of the Act and, for the same reason, no part of such payments may be credited toward overtime compensation due under the Act.
Thus, under the FLSA, payments made to employees for occasional periods where no work is performed due to vacation, holiday, or illness are not compensation for hours of employment. Because no productive work is being performed during these periods, these hours cannot be counted toward the overtime threshold.
While officers may feel penalized for using their earned leave, the law treats overtime not as a standard benefit attached to a pay cycle, but as a premium paid specifically for the strain of labor performed in excess of statutory or contractual maximums. Officers become legally entitled to the overtime pay rate under the FLSA and the Arkansas Minimum Wage Act only when their actual performance of those duties exceeds those hourly maximums.
Assistant Attorney General Justin Hughes prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General