Today’s FLSA Question: I work for a midsize municipal fire department in the Northeast. We work a 42-hour average workweek. Our city administrators claim they are not required to set a work period, calculate regular rate, or follow much of this FLSA “stuff” because we work an average of 42 hours per week and have a collective bargaining agreement (CBA). Is that true? How does the FLSA affect us?
Answer: Nothing could be further from the truth. Public agency fire departments must follow the FLSA. The fact that you work a 42-hour workweek and have a CBA does not change this fact. A CBA cannot waive the protections provided by the FLSA. Collective bargaining agreements can provide workers enhanced pay—above what the FLSA requires—but when CBAs are found to give workers less than what the FLSA requires, they are unenforceable.
The bury your head in the sand approach to FLSA compliance rarely works. FLSA litigation is a slow-moving affair. It is not uncommon for new administrators (and political administrations) to inherit the sins of their predecessors. As the litigation grinds-on legal bills grow. Very often the amount of back wages is dwarfed by attorneys’ fees. Here are just a few examples of why all firefighters and fire department administrators need to be concerned about the FLSA.
General Rule (OT Over 40) vs. §207(k) Firefighters
The general rule requires that employers, including fire departments, pay overtime to overtime-eligible workers, including firefighters, after they work 40 hours in a 7-day workweek. The FLSA’s §207(k) partial overtime exemption allows public agency employers to avoid these traditional overtime rules for some police officers and firefighters. This is accomplished by allowing employers to utilize longer workweeks, which are called work periods, and increasing the number of hours an employee must work before FLSA overtime is required. Let’s examine these two critical components of the §207(k) exemption as it applies to public agency firefighters.
Establishing a qualifying work period is necessary for a fire department to claim the §207(k) exemption. The organizational structure (3-platoon or 4-platoon) of the fire department does not matter. If the fire department does not pay overtime after 40 hours every 7 days, it must establish a work period. Work periods can be any length between 7 and 28 days. For more on work periods, see “Paying Firefighters. . .It’s all about the work period.”
Hours Worked & Regular Rate
Fire departments that are eligible to utilize the §207(k) exemption are only required to pay FLSA overtime for hours worked over the statutory maximum in each work period. For example, if a fire department has adopted a 7-day work period, it must pay FLSA overtime for all hours worked over 53 every 7 days. The Department of Labor (DOL) has issued regulations that list maximum-hours standards for each specific work period. Click here for more information.
The FLSA requires this overtime to be at least time and one-half of the employee’s regular rate. The regular rate is not the contract rate. The regular rate must include wage augments. Longevity, working out-of-rank, educational incentives, shift differentials, and even money paid in lieu of receiving employer sponsored medical benefits must be included in the regular rate.
Firefighters who work an average of 42 hours per week may not always work over the statutory maximum for their particular work period. However, when they do, that overtime be at least time and one-half of the regular rate.
Work periods, hours worked, and the regular rate are only a few of the FLSA issues that all firefighters and fire department administrators need to be concerned about. We have not even looked at EMS, fire investigators, substitutions, third-party details, early reliefs, executive exemptions, the small fire department exception, and on, and on, and on . . .