Today’s FLSA Question: I am a city HR director. We employ civilian public safety dispatchers who handle dispatching for both the police and fire departments. The dispatchers work an average of 42 hours per week. If they work all their assigned shifts, the dispatchers are paid 80 hours of straight time and four hours of overtime every two weeks.
The dispatchers work 12-hour rotating shifts consisting of alternating 36- and 48-hour workweeks. Their schedule is spelled out in the labor agreement and we cannot deviate from the set workweek or schedule. Can we average their hours worked over a 2-week period like this? I don’t think we can. Do we have any other options? BTW, this practice predates my time here with the city, and when I questioned the police and fire chiefs about the practice, they both stated: “This is how it has always been done, everybody is happy, the dispatchers like it this way. Don’t worry about it.” Does that make a difference?
Very good question. While I am sure the chiefs are well intentioned, your concerns are well founded. In the event a current or former dispatcher opts to file an FLSA overtime claim, “this is how we have always done it,” or “they are happy getting paid this way,” or even “they agreed to this” will not qualify as any defense for the city. You are correct. Most likely the dispatchers are eligible for overtime for all hours worked over 40 every 7 days. To average the hours worked by civilian dispatchers over more than one week would likely result in an FLSA violation.
There are numerous exceptions, exemptions, and exclusions that apply only to public agencies, plus there are additional special rules for police and firefighters. However, there are no “special rules” per se for civilian public safety dispatchers. There can be limited times when sworn and trained police officers or firefighters could work as dispatchers and still qualify for the §207(k) partial overtime exemption. However, civilian public safety dispatchers, who do not meet the requirements of §207(k) are eligible for overtime after working 40 hours every 7 days. But there may be another possible option available to your organization. Let’s take a look.
There is one unique option that may be useful for you to manage—or at the very least minimize—this overtime requirement. In lieu of the employer providing overtime, public safety dispatchers can receive FLSA compensatory time (comp time). FLSA comp time is another one of those special provisions that apply only to public agency employers. Dispatchers would be entitled to 1½ hours of FLSA comp time for every hour of FLSA overtime owed. The dispatchers would have to agree to receiving comp time in lieu of overtime, and there are specific rules that must be followed. Check out 29 CFR §§553.22-28 for more information.
Here are some of the common comp time pitfalls: You are still potentially on the hook for paying this overtime. It could even result in costing you more money in the long run, since the hours earned today may be paid out at a later date when the dispatcher makes more money. Additionally, the dispatchers would have to agree to comp time, and there is no shortage of rules to follow when utilizing FLSA comp time. The FLSA and Department of Labor (DOL) regulations contain volumes of data regarding the accrual, usage, payouts, and required record keeping for FLSA comp time.
However, if your staffing allows a dispatcher to utilize comp time without requiring additional overtime or comp time, this option could eliminate the need to pay dispatchers any overtime for scheduled shifts. Whether or not FLSA comp time is a fit for your city will be highly dependent on your specific situation. You need to consult a local attorney who is familiar with both the FLSA and special rules only available to public agencies to discuss your options.
FLSA comp time is one of many topics covered in depth at all of the upcoming Fair Labor Standards Act (FLSA) for Fire Departments seminars. Please consider joining us.