many of the "regular rules" of the FLSA apply to fire protection
employees, there are some "special rules," as well.
These include "special 7(k) work periods" which may increase the
FLSA overtime thresholds, and some peculiar regulations governing
Special "7(k) Work
fire departments may establish special "7(k) work periods" for sworn
firefighters, which can increase the FLSA overtime "thresholds"
beyond the normal 40 hour week. Firefighters covered by these special
work periods are entitled to FLSA overtime only for hours worked
in excess of a threshold set by the Department of Labor on a chart.
For example, in a 28 day work period, fire fighters would be entitled
to FLSA overtime only for hours actually worked over 212 during
that 28 day period (in essence, a 53 hour work week). "7(k)" refers
to the section of the FLSA in which these special rules are contained,
29 USC §207(k). Most fire fighters who work "platoon schedules"
will be classified by their employers as "7(k) eligible" and compensated
The special work periods
and overtime rules are available only for employees who meet the
statutory definition of "employees in fire protection activities"
which is contained at §203(y):
`Employee in fire protection
activities' means an employee, including a firefighter, paramedic,
emergency medical technician, rescue worker, ambulance personnel,
or hazardous materials worker, who
(1) is trained in fire
suppression, has the legal authority and responsibility to engage
in fire suppression, and is employed by a fire department of a
municipality, county, fire district, or State, and
(2) is engaged in the
prevention, control, and extinguishment of fires or response to
emergency medical situations where life, property, or the environment
is at risk.
Thus, to qualify for
§7(k) pay as a fire protection employee under this statutory definition,
an employee must (a) work for a (government) fire department, (b)
be trained in fire suppression, (c) have the legal authority to
fight fires, (d) have the responsibility to fight fires, (e) and
either actually engage in fire suppression work of the type defined
or non-fire related emergency responses.
There is at least one
court decision which has held that arson investigators employed
at fire departments are not eligible for §7(k) pay as "employees
in fire protection." Arson investigators may be eligible for
§ 7(k) pay as "employees in law enforcement activities,"
using the different thresholds permitted for these employees. (See,
FLSA and Police Officers.) Some EMS employees
may be eligible for §7(k) pay as employees in fire protection activities,
however some EMS workers may be "40 hour week" employees.
(See, FLSA and Paramedics.)
Private fire protection
employers are not permitted to use the special §7(k) work periods,
and employees of private fire companies must be paid FLSA overtime
for all hours worked over 40 per week. A private fire company means
a fire protection unit of private industry. A public sector fire
company means that the employer is the government. Employees of
"volunteer" fire departments probably count as public sector employees.
For FLSA purposes, "hours
worked" means time when the employee is actually performing services
for the employer. These are the only hours which must be included
when determining if FLSA overtime is due. Thus, for example, "Kelly
days" or other paid leave days do not count as hours worked for
FLSA purposes. "Sleep time" and meal breaks may or may not count
as FLSA hours worked, see below. FLSA overtime is due only when
and to the extent that FLSA hours worked exceed the applicable FLSA
overtime threshold -- 40 hours per week or whatever the applicable
"chart" hours are for a 7(k) work period. So long as employees receive
at least minimum wage for FLSA hours worked under the FLSA overtime
threshold, there is generally no federal violation. "FLSA overtime"
may therefore be different from "contract overtime."
FLSA hours worked include
not only "on the clock" hours worked, but also "off the clock" hours
worked, so long as the employer "knows or has reason to believe"
that the employee is performing this "extra" work and permits it
to happen. The following may constitute compensable FLSA hours worked
when performed during off the clock time: Care and maintenance of
work equipment (e.g., arson dogs, trucks and engines, hoses, uniforms),
work performed before or after regular shifts, job-related paperwork
performed at home, job-related telephone calls from home, (most)
An employee's FLSA overtime
rate should be calculated to include not only "base pay" but also
various "wage augments" such as "longevity pay" and "shift differentials."
These must be included only for calculating the employee's FLSA
overtime rate, and need not be included for any other pay purposes.
The FLSA permits employers
to exclude up to 8 hours from work time when shifts are exactly
24 consecutive hours (private sector) or more than 24 hours (public
sector), as "sleep time." To permit a sleep time exclusion requires
that there be an "agreement" with the employees. An employee who
takes a job which has a sleep time exclusion in place will be deemed
to have "agreed" to it. There must also be adequate sleeping facilities,
and the employees must normally have the opportunity to obtain 5
hours of sleep. The 5 hours need not be consecutive, and if an employee
does not have the opportunity to get at least 5 hours of sleep no
sleep time exclusion is permitted. Any time during the sleep period
when an employee is actually performing work must be counted as
Unpaid meal periods may
be excluded from FLSA hours worked, so long as the employee actually
gets to take an "uninterrupted" meal break. Minor interruptions
will be tolerated, but if an employee "works through lunch" the
time must be included as FLSA hours worked. Merely being "on call"
during a meal period is not sufficient to require meal breaks to
be included as FLSA hours worked.
"On Call" or "Stand
On call or stand by time
need not generally be included as FLSA hours worked. An employer
may require employees to "remain available" to be called into work
without having to pay FLSA wages for that time. The only exception
is if the employer places restrictions on the use of stand by or
on call time which make it virtually impossible for the employee
to use the time for any personal purposes. Such situations are very
rare. "If you can watch TV when you are on call, you probably are
not entitled to FLSA compensation for the time." Any work an employee
does during on call or stand by status must be compensated appropriately.
The FLSA permits employers
to adjust schedules to avoid FLSA overtime, so long as the adjustments
occur within a work period. Thus, a fire company may, consistent
with the FLSA, require an employee "not to work" within a work period,
for the purpose of avoiding the employee reaching the FLSA overtime
threshold during that work period. However, an employer is not permitted
to "average" FLSA hours worked from work period to work period.
Stated another way, the FLSA is generally not concerned with an
employee's actual schedule within a work period. The employer may,
consistent with the FLSA, require an employee to work pretty much
when it wishes. The FLSA generally governs only how an employee
must be paid for FLSA overtime worked during a work period. The
employee's FLSA hours worked "vest" at the end of the last day of
the work period. At that point, the total FLSA hours worked (during
that work period) are added, and any FLSA hours worked over the
FLSA threshold must be compensated as overtime. Overtime owed for
FLSA hours worked during one work period may not be offset by "hours
not worked" during some other work period. Note that local law,
employment contracts, or collective bargaining agreements may independently
restrict an employer from requiring schedule adjustments, irrespective
of the FLSA.
are permitted to pay some FLSA overtime with "comp. time" in lieu
of cash wages. To be permitted to pay FLSA overtime with comp. time
instead of cash, there must be an "agreement" with the employees
before the FLSA overtime work is performed. If the employees are
represented by a union, this agreement must be collectively bargained.
If not, it may be a "condition of employment" (at least for new
hires) or contained in individual agreements. Comp. time in lieu
of cash wages for FLSA overtime must be paid at the appropriate
FLSA overtime rate -- time and one-half. Employees must be permitted
to use their accrued FLSA comp. time pretty much when they want
to (on reasonable notice), but an employer may require an employee
to "burn" accrued FLSA comp. time. An employer may not prohibit
an employee from using accrued FLSA comp. time unless the time off
would create a real disruption in operations. A desire by the employer
to avoid having to call in another employee for shift coverage are
not sufficient reasons to deny comp. time requests, as that is a
financial reason and not an operational hardship.
The FLSA comp. time rules
apply only to "FLSA comp. time." This is "time" awarded in lieu
of cash wages for hours worked which would be required to be treated
and paid as overtime under the FLSA. Some employers grant comp.
time to employees for other purposes or on other schedules. The
FLSA comp. time rules do not apply to this kind of comp. time.
and "Dual Employment."
Employees may not "volunteer"
to do similar work for the same employer without the time being
counted as FLSA work time. Firefighters may not perform "additional"
fire related activities for their employers without that time being
included as hours worked for FLSA pay computation purposes. Also,
employees who work "two jobs" for the same employer must aggregate
their total hours worked for FLSA pay purposes. For example, a fire
fighter who works 40 hours as a firefighter and an additional 20
hours as an animal control officer has a total of 60 FLSA hours
worked. Employees are permitted to work "moonlighting" jobs -- for
separate employers -- without the hours being aggregated. Employees
may sometimes work for "joint employers," such as when they are
assigned to a "task force." In such cases, each employer is equally
liable to be sure FLSA wages are paid properly.
See, also, Paramedics.