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Friday, October 7, 2016

Fire Law with Curt Vallone

FLSA, Overtime and Staff Personnel

Today’s burning question: We have several firefighters and fire officers that work a 40-hour week. These folks are assigned to logistics, training, inspections, etc., and do not receive overtime until after 86 hours per two weeks. Can you shed some light on the rules for 40-hour staff firefighters?
Answer: Your question raises a number of complex issues and by no means are the answers simple. First of all, the FLSA sets the floor for firefighter overtime and compensation. A fire department can pay firefighters more than the FLSA requires (most do), however it can never pay less. In order to fully answer your question, more information would be required, but let’s look at what we have and what some possible answers may be.
Question #1 – Can an employer pay firefighters overtime only after they work 86 hours in a two-week period? 
It depends… Most employees are entitled to overtime after working 40 hours per week. That is the general rule.
The FLSA has a special exemption for firefighters who meet the definition of an “employee in fire protection activities.” Firefighters meeting this definition may be required to work 53 per week, 106 in a two-week period, or 212 hours in a 28-day period before overtime is required. This is often referred to as the §207(k) or 7(k) firefighter exemption.
In order to qualify for the 7(k) exemption, firefighters must be “trained in fire suppression, ha[ve] the legal authority and responsibility to engage in fire suppression, and [be] employed by a fire department of a municipality, county, fire district, or State; and [be] engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk”. If firefighters do not meet the requirements of 7(k) then they are entitled to overtime after working 40 hours in a 7-day work period.
Depending on their job duties, firefighters assigned to a 40-hour week may or may not be entitled to overtime after 40 hours. It will all come down to whether they meet the above definition. If they meet 7(k) then the firefighters you are asking about are actually receiving a greater benefit than required by the FLSA. If not, then the firefighters should be entitled to OT after 40 hours in a 7-day week.
One additional point is in order: if they are considered to be 7(k) firefighters, they would be entitled to straight time hourly compensation for all hours they work. In other words, the department cannot require them to work hours 41-43 without additional compensation, but the compensation need only be at straight time rate.
Question #2 – Are all 40-hour staff firefighters eligible for overtime?
No. Certain high level fire department employees (fire chief, assistant chief, administrative chief, etc.) can qualify as executives under the FLSA and be completely exempt from the overtime requirements. While a fire department may choose to pay overtime to these employees, it is not required. If the individuals you are asking about qualify as executives, then paying them overtime after 43 hours per week (83 hours in two weeks) would be permissible.
In order to qualify for the executive exemption, the firefighter must be paid a minimum of $455 per week on a salary basis, (increases to $913 in December 2016), supervise other workers, make important policy level decisions, and have the authority to hire and fire or at least play a significant role in that process. Again, the employer can choose to pay even executives overtime above and beyond their salary, however the FLSA does not require it.
The US Department of Labor and most courts have concluded that firefighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees, regardless of rank or pay level, who perform work such as:
  • preventing, controlling or extinguishing fires of any type;
  • rescuing fire, or accident victims;
  • preventing or detecting crimes; conducting investigations or inspections for violations of law;
are hourly employees entitled to overtime. Attempting to classify any of the above as executives would most likely end up as an FLSA violation.
There are two other exemptions that may apply to your situation:
  • Small fire department exception (5 or fewer employees)
  • Law enforcement 7(k)– if the staff personnel you mention are (for example) arson investigators, they may qualify under the law enforcement 7(k) exemption. The Law enforcement 7(k) requires overtime after 43 hours per week, 86 hours per two weeks, 171 hours in 28 days. I was struck by the fact that 86 hours is the exact same hours you are referencing – which raises the question of whether your payroll folks may be misapplying the 7(k) law enforcement requirements to your staff personnel. This would not be a problem if the personnel qualify as fire 7(k) or law enforcement 7(k), but if they do not qualify as 7(k) employees, they must receive overtime after 40 hours per week.
Unfortunately, this type of question requires a great deal of detail and background information to answer completely. If you find yourself in this type of situation, you need to consult with an FLSA attorney that is familiar with the fire service.
For more information see Fact Sheet #17A Exemption for Executive, Administrative, Professional, Computer & Outside Sales Employees Under the Fair Labor Standards Act (FLSA).
Thanks to Bill Maccarone for an assist with this one. Don’t forget we have two more sessions of the Fair Labor Standards Act for Fire Department this year:
Rocky Mount, NC November 15-17, 2016
Mesa, Arizona December 6-8, 2016
We also have our first session for 2017 scheduled:
Georgetown, Texas January 31-February 2, 2017

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.