Today’s FLSA Question: I am the union president for a small municipal fire department. We have only five firefighters on duty at any one time. We negotiated an overtime call-back provision within our labor agreement that allows firefighters to come back if the on-duty crew is out of service (on calls) for an extended length of time. Firefighters receive time and one-half for this call-back, regardless of actual hours worked during the work period. Some of my members would like to change this provision. They would like to include an option of receiving compensatory time (comp time) in lieu of overtime for these call-backs. Does the Fair Labor Standards Act (FLSA) allow for this option?
Good question. At first glance, this appears to be an easy question to answer. Absolutely. A public agency employer can provide its employees FLSA comp time in lieu of paying FLSA overtime. There is no distinction between comp time hours accrued as a result of an emergency call-back versus hours accrued for an entire 24-hour work shift. When a public agency firefighter works more than the maximum number of hours for the work period, they are entitled to either FLSA overtime or FLSA comp time.
But, on further thought, this question does raise one potential concern. Under the FLSA, comp time is provided to public agency firefighters in lieu of FLSA overtime. In lieu means that instead of receiving FLSA overtime, an employee receives FLSA comp time. In order to receive FLSA comp time, the firefighter must be entitled to FLSA overtime. Depending on the firefighters’ schedule and attendance, there may be work periods when firefighters do not work enough hours to be entitled to any FLSA overtime or FLSA comp time.
Now, let’s apply these facts to your question. If your union has negotiated time-and-one-half pay when firefighters are called back during emergencies, regardless of the actual number of hours a firefighter has worked during the work period, this overtime may or may not be required by the FLSA. Here are a couple of examples to help clarify this point:
- Firefighter Jones is using some accrued vacation time. He has not worked his regularly assigned shifts for the last two weeks. But, he worked four hours on an emergency call-back during this time. Most likely, he is not entitled to FLSA overtime for the emergency call-back. Any overtime paid is a result of the contract, not federal law.
- Firefighter Smith works all his scheduled shifts for the work period. He is entitled to four hours of FLSA overtime, or six hours of FLSA comp time as a result of his regular schedule. In addition, he worked four hours of emergency call-back. This emergency call-back must be paid at time and one-half of his regular rate, because the FLSA requires it. The terms of the contract are irrelevant under this scenario.
The ins and outs of comp time can get confusing, especially when public agency employers offer comp time in circumstances when no FLSA overtime is due. The question may not be whether the FLSA allows for this practice, but whether your employer would agree to it.
For these types of situations, best practices mandates that employers track both FLSA comp time and contractual comp time. Employers utilize two different types of comp time banks, or accruals. One bank is dedicated to comp time accrued pursuant to the FLSA, while the other bank is dedicated to comp time accrued as a result of the labor contract.
Again, this can get tricky. What seemed at first to be a straight forward simple question, quickly evolved into a rather in-depth answer.
Comp time is one of many topics covered in-depth at all of the upcoming FLSA for Fire Departments seminars.
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