Translation from English

Friday, July 15, 2016

Fire Law with Curt Varone


FLSA Burning Question: Can a Firefighter Also Be Employed as a Bus Driver?

Today’s burning question: I am a career firefighter plus I work part time for my city as a bus driver. Can the city pay me different rates of pay and does the city have to include the hours from my bus driving job when calculating overtime for my fire department job?
Answer: The answer to is yes and no. Yes, the city can pay you different rates for different jobs. That much is clearly permitted by the Fair Labor Standards Act, although calculating the proper rate for overtime can become complicated.
In addition the hours that you work in your part time employment as a bus driver do not have to be counted toward your hours worked as a firefighter, provided your employment as a bus driver is “on an occasional or sporadic basis and solely at the employee’s option.” The FLSA addresses this issue quite clearly:
29 USC 207 Max Hours (p) 
(2)If an employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency undertakes, on an occasional or sporadic basis and solely at the employee’s option, part-time employment for the public agency which is in a different capacity from any capacity in which the employee is regularly employed with the public agency, the hours such employee was employed in performing the different employment shall be excluded by the public agency in the calculation of the hours for which the employee is entitled to overtime compensation under this section.
What could complicate the question is whether your employment as a bus driver is indeed “occasional or sporadic.” That would be a question that must be answered on a case by case basis. And then there is the question about whether the same would hold true if you were employed in an exempt capacity, such as a schoolteacher or administrator. We will leave that for next time.

ABOUT CURT VARONE 

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.