Today’s FLSA Question: I am a fire lieutenant and the president of my local firefighters’ union. We work a 48/96 schedule (48 hours on duty followed by 96 hours off), and utilize a 14-day work period. I know the FLSA requires overtime for all hours worked over 106 in a 14-day work period. We have a unique provision in our contract. To make life easier for both the firefighters and the city, the city “averages” overtime hours for scheduled work hours. Basically, we receive 6 hours of FLSA overtime every two weeks, regardless of scheduled shifts. Does the FLSA allow “averaging” overtime hours? Both the city and the firefighters’ union agreed to this years ago—does that matter?
Unfortunately, there is no easy answer to that question. There are numerous other factors that need to be considered before trying to answer that kind of question. You need to consult with an attorney who is familiar with the FLSA, state laws, and the fire service in your jurisdiction. Generally speaking, the FLSA does not explicitly prohibit overtime averaging. However, that does not necessarily mean that overtime averaging is permissible, either. Whether overtime averaging is permissible under the FLSA requires an examination of the specific facts at hand.
There are three critical components of the FLSA that tend to undermine any benefit an employer may receive from “averaging” overtime. First, the FLSA requires all employees be paid for all hours worked each work period. Second, the FLSA also requires all employees to be paid overtime for all hours worked over the maximum hours for each work period. For example, if a §207(k) firefighter works over 53 hours in a 7-day work period, or 212 hours in a 28-day work period, they are entitled to overtime. Third, each work period stands alone. Employers cannot off-set overtime liability owed in one work period in another.
Let’s break down this hypothetical a little further to get a better understanding on the impact these critical components of the FLSA could have on overtime averaging.
Overtime Averaging Hypo
First, the schedule described above results in firefighters scheduled to work either 120 or 96 hours every 14-day work period. As you are aware, if a fire department utilizes the §207(k) partial overtime exemption for firefighters, it is required to pay overtime for all hours worked over 106 every 14-day work period. Theoretically, the city owes firefighters 14 hours of FLSA overtime for the 120-hour work periods. The city would violate the FLSA by paying only 6 hours of FLSA overtime for the 120-hour work periods.
Second, when firefighters work only 96 hours in a 14-day work period, no FLSA overtime is required. The city would not violate the FLSA by paying 6 hours of unrequired overtime. Remember, employers may exceed FLSA requirements when paying employees.
Overtime averaging can be utilized if the result for the employee is the same or greater than calculating FLSA overtime due based on actual hours worked. Basically, when the benefit provided by the averaging exceeds what is required by the FLSA, averaging is permitted. When the benefit provided by the averaging is less than what the FLSA requires, the averaging will violate the FLSA. Given these facts, there is little to no advantage for an employer to utilize overtime averaging.
Finally, the labor contract adds additional complexity to the situation. Labor contracts traditionally provide benefits to employees greater than required by the FLSA. However, FLSA rights cannot be bargained away by any labor contract. Labor contracts that are found to be in violation of the FLSA are typically unenforceable.Whether or not these general principles would apply to your specific set of circumstances is unknown. Again, you need to consult with a local wage and hour attorney who is familiar with both the FLSA, relevant state laws, and the fire service.
The Take Away
Employers need to be very careful before agreeing to language pertaining to overtime averaging in labor contracts. What may appear to be a “win-win” at the bargaining table could result in catastrophic losses in a courtroom. This is one of many topics discussed in depth at all of the upcoming FLSA for Fire Departments seminars. Please consider joining us.
FLSA for Fire Departments 2018