Why don’t firefighters receive overtime after working 40 hours a week? Why are there different rules for paying firefighters?
Part I – §207(k) Introduction
As many of us are keenly aware, firefighters do not always receive overtime after working 40 hours in a week. In fact, firefighters are often required to work upwards of 53 hours per week before receiving any overtime. Additionally, some fire departments can extend a firefighter’s workweek (work period) from the standard 7-days to as many as 28 days. This creates instances were firefighters may not receive any overtime until they have worked more than 212 hours in a 28-day period. This unique provision of the Fair Labor Standards Act (FLSA) is known as the §207(k) partial exemption, sometimes referred to as the 7(k) exemption.
To fully understand the implications of the 7(k) exemption, we need to look at the history of the FLSA and why such a provision exists.
History of FLSA & §207(k) partial exemption
The FLSA was written over 75 years ago. The primary goal of the FLSA was to invigorate the economy and put people back to work during the great depression. In its initial form the FLSA mandated a $0.40 per hour minimum wage and required employers pay employees time and one half after they worked 40 hours per week. Over the next 50 plus years there have been many changes to the FLSA, however the standard rule continues to apply today. Employers must pay employees at least the minimum wage and employees are eligible to receive overtime after working 40 hours work in a week. But, there are exceptions.
The FLSA originally did not apply to public agency employees (like many firefighters). There were two key U.S. Supreme Court decisions involving the FLSA and its applicability to public agency employees in the mid 1970’s and 1980’s. While both decisions resulted in changes to the way the FLSA was applied to public agency employees, by far the most influential decision was Garcia v. San Antonio Metropolitan Transit Authority. In Garcia, the Supreme Court found the FLSA was indeed applicable to public agency employees. After almost 50 years of waiting, police officers, firefighters, and other public agency workers would finally receive FLSA OT!
There was a great deal of opposition to this change, many local city and state governments vehemently opposed the new overtime rules for government employees. Prior to Garcia, many firefighters worked 70 or even 80 hours per week without receiving any overtime pay. How would local cities and towns afford these changes?
In response to these concerns, Congress and the U.S. Dept. of Labor crafted special provisions that only apply to public agencies. These rules include the §207(k) partial exemption for police and firefighters, compensatory time, substitutions, and several other unique provisions, some of which only apply to firefighters.
§207(k) & Firefighters Today
Now back to what is most likely the most well-known public agency only provision of the FLSA, the §207(k) partial exemption for police and firefighters. This partial exemption allows public agency police and fire departments to adopt a work period up to 28 days, as opposed to the standard 7days, and increases the number of hours an employee needs to work before they are eligible to receive overtime. The fire department is only required to pay overtime for hours worked above the maximum hours for that work period. The regulations determine the maximum hours for each work period. Here are a couple of examples:
I. FD elects to utilize a 14-day work period. FLSA overtime is required for hours worked above 106 in 14 days.
II. FD elects to utilize a 21-day work period. FLSA overtime is required for hours worked above 159 in 21 days.
III. FD elects to utilize a 27-day work period. FLSA overtime is required for hours worked above 206 in a 27 days.
Below is a table that illustrates the different maximum hours for each work period.
|Work Period Days||Max Hours Fire Protection||Max Hours Law Enforcement|
Now that we have a brief history of the §7(k) exemption, can all fire departments utilize the exemption?
Stay tuned for Part II – What fire departments qualify for the §207(k) partial exemption