In an unusual decision from the U.S. District Court for the Middle District of Georgia, a former fire investigator for the Columbus Consolidated Government Fire and EMS Department (CCG Fire & EMS) was denied overtime pay under a very limited and unique provision of the FLSA. It is too soon to know if the former investigator will appeal. However, there is no doubt many fire investigators across the country will be holding their collective breath while this one plays out.
Until January 2017, Lance Christenson was employed as a fire investigator for CCG Fire & EMS. CCG Fire & EMS employed three full-time fire investigators, one of whom—Christenson included—was assigned to each of CCG Fire & EMS’s three platoons. His schedule consisted of 24 hours on duty followed by 48 hours off duty. Christenson was paid overtime, like other firefighters, for all hours worked over 106 in every 14-day work period.
Christenson argued he should receive overtime in a similar way that the city’s police officers are paid, since his job was overwhelmingly law enforcement in nature. Police officers receive overtime after working 86 hours in every 14-day work period. This is not an uncommon claim. Regular FirefighterOvertime.org readers will recall that Wichita, Kansas, fire investigators made a very similar claim on December 22, 2017. Christenson quickly filed a lawsuit in federal court in February 2017, seeking overtime under the §207(k) law enforcement standard.
The FLSA – 29 U.S.C. §207(k)
The §207(k) partial overtime exemption for police and firefighters allows public agency employers significant relief from paying overtime under the traditional FLSA rules. The FLSA’s general rule requires that employers pay overtime for all hours worked over 40 every 7 days. The §207(k) partial overtime exemption for police and firefighters allows public agency employers to pay overtime to police officers and firefighters after they work a higher number of hours than the FLSA’s general requirements. Additionally, public agency employers are not limited to examining the number of hours a police officer or firefighter work on a week-by-week basis. Public agency employers can adopt longer work periods, between 7 and 28 days.
There is significant difference between the number of hours a firefighter must work, as compared to a police officer, before being eligible for overtime. Police officers receive overtime after working 43 hours every 7 days, or 171 hours every 28 days. But firefighters only receive overtime after working 53 hours every 7 days, or 212 hours every 28 days. Here, CCG Fire & Rescue and the Columbus Police Dept. have reportedly adopted 14-day work periods. Columbus police officers receive overtime for all hours worked over 86 every 14 days, and CCG Fire & Rescue firefighters receive overtime after working 106 hours every 14 days.
The Regulations – 29 C.F.R. §553.213
It is not uncommon for there to be some confusion when trying to determine which overtime standard to apply to each specific situation. In the past, some fire investigators have been improperly paid as firefighting personnel (for overtime purposes) when they were actually performing law enforcement duties.
The Department of Labor (DOL) has regulations meant to assist employers in determining which overtime standard to apply for employees who perform both firefighting and law enforcement activities. When an employee performs both law enforcement and firefighting activities, the regulations require the employer to determine which activities or roles (law enforcement or firefighter) the employee spends the majority of work time preforming, and apply the appropriate standard. As an example, if Christenson spent the majority of his work time performing firefighter duties, then the firefighter standard would be appropriate. But if Christenson spent the majority of work time performing law enforcement duties, then the law enforcement standard would be appropriate.
Here, Judge Clay D. Land, of the U.S. District Court for the Middle District of Georgia, made a rather surprising decision. Instead of analyzing Christenson’s duties and responsibilities and applying the appropriate standard, as the regulation requires, Judge Land dismissed Christenson’s claim on a very narrow FLSA exception found in section §213(b)(20). This exception provides a complete overtime pay exemption for certain public agency employers that have fewer than five employees engaged in fire protection or law enforcement activities.
According to the CCG Fire & EMS website, the department has almost 400 employees spread across 14 stations. Similarly, the Columbus Police Department’s website touts the police dept. as “one of the largest … in … Georgia.” How can they qualify for this type of exemption?
According to Judge Land’s interpretation of the FLSA and the regulations, despite the apparent large number of city employees, since fewer than five employees perform law enforcement functions within the fire department there is no requirement to pay these employees any overtime pay. To my knowledge this is the first time this exemption has been looked at in this manner. There are several considerations to keep in mind moving forward.
First, Christenson named the fire department as the defendant in the suit. We do not know if the outcome would be different if the city was named as the defendant. Additionally, the judge appears to consider each city department an individual public agency. This is a curious interpretation of the term “public agency” as it exists in the FLSA. Finally, could this decision result in firefighters being assigned to the school dept., or police officers assigned to public works? I can see the argument now; “but we do not have twenty firefighters, we have four firefighters assigned to five different ‘public agencies’ all within the same city. We are not required to pay any overtime.” Obviously, that would be a stretch, but maybe not. . .
Again, we don’t know whether Christenson intends to appeal this decision to the 11th Circuit Court of Appeals. This decision is only a few days old. However, in the meantime, how many other fire investigators may find themselves in this type of situation? We will keep you posted on the developments.
For a more in-depth discussion on this case and the regulations related to employees that perform both law enforcement and fire protection activities, please consider joining us for one of the upcoming FLSA for Fire Departments seminars. For our attorneys out there-both the RI and MN classes have been approved for CLE credits. Please see the registration page for more details.
Here is a copy of the decision.