Are Day-Time Firefighters Still Eligible for §207(k) Exemption?

Today’s FLSA Question: I am the fire chief for a small full-time fire department. We just received funding to add an additional fire officer for peak “day-time” hours. The new lieutenant will work Monday thru Friday from 7am to 5pm. During the daytime shifts the lieutenant will regularly respond to alarms as a safety officer, chief’s aid, and even as a company officer if an officer is out on sick leave or vacation that particular day. We currently claim the §207(k) exemption for all of our firefighters that work the 24/48 schedule. Can we also claim the §207(k) exemption for this “day-time” firefighter? Does a firefighter’s schedule impact a department’s ability to claim the §207(k) exemption?

Answer: Good question. A firefighter’s schedule does not impact his or her status as a §207(k) firefighter. Whether a fire department can claim the §207(k) partial exemption for its firefighters requires an examination of the type, capabilities, and even responsibilities of the individual firefighter. However, whether a firefighter works day shifts, night shifts, 24-hour shifts, full-time, part-time, or even per diem does not affect the analysis.

As a general rule, the FLSA requires overtime be paid to all employees for all hours worked over 40 hours in a seven-day workweek. However, there are numerous exceptions and exemptions that can alter this general rule. Included in this laundry list of exceptions is the §207(k) partial overtime exemption for firefighters. Whether a fire department can claim the §207(k) partial overtime exemption depends on whether its firefighters’ meet the definition of an employee engaged in fire protection activities. To be properly classified as an employee engaged in fire protection activities, the employee must be:

• Employed by a public fire department;
• Trained in fire suppression;
• Have the legal authority and responsibility to engage in fire suppression;and
• Be engaged in the prevention, control, and extinguishment of fires or response to emergency situations.

All four of the above requirements must be satisfied to meet the definition. If the day-time firefighter that you describe above meets the above four criteria, they can be properly considered a §207(k) firefighter.