Request By:
Ross W. Spears
Chief of Police
Paintsville Police Department
P.O. Box 71
Paintsville, Kentucky 41240
Opinion
Opinion By: Steven L. Beshear, Attorney General; Martin Glazer, Assistant Attorney General
You ask whether a fire chief, a police chief, and their assistants are required to be paid time and one-half under KRS 337.275, 337.285, and 803 KAR 1:070.
The regulation aforesaid defines "executive capacity" as an employee [paraphrased]:
1. whose primary duty is in management;
2. who directs the work of two or more other employees;
3. who can hire or fire employees or whose advice has weight in the disposition of such employees;
4. who uses discretionary powers regularly;
5. who does not devote more than 20% of his time to doing what the employees he supervises do; (For example, it is unlikely that a small police force can meet this requirement. A three-man force with one man being the chief would probably not comply. The chief would need to police just as the other two did. He could not devote 80% of his time to management of others only.)
6. who makes at least $155 per week (not counting fringe benefits). If he makes $250 per week and whose primary duty is management of at least two other employees, he is presumed to meet all other requirements.
The person who is tested against these criteria must meet all the requirements, not just one or two. If he does not, he must be paid overtime for all hours worked over 40 in any work week.
So, the answer to your question is dependent upon how the individuals you cite meet all the requirements of regulation 803 KAR 1:070.