Today’s FLSA Question: I am the chief of a small municipal fire department. In addition to myself, we have 21 full-time firefighter/medics that work an average of 56 hours per week. They rotate between all the apparatus, but the vast majority of their time is spent on the ambulances. A couple of firefighter/medics have stated they should receive overtime after working 40 hours in a week—as opposed to 212 hours every 28 days. They cite the high number of EMS calls as the deciding factor. They are correct, the vast majority of calls (upwards of 80 percent) are for EMS. However, they are all fully-trained firefighters. They work as firefighters when there is a fire. Can we still utilize the §207(k) exemption for our firefighter/medics?
Answer: Chief, absolutely. Public agency (municipal) fire departments can utilize the FLSA’s §207(k) partial overtime exemption for all employee(s) engaged in fire protection activities.
Section §203(y) of the FLSA provides a definition of an employee engaged in fire protection activities. To be properly classified as a §207(k) firefighter you must be:
- Employed by a public fire department;
- Trained in fire suppression;
- Have the legal authority and responsibility to engage in fire suppression; and
- Engaged in the prevention, control, and extinguishment of fires or response to emergency situations.
As long as your firefighters meet the above definition, they can be considered §207(k) firefighters. In theory, a firefighter can be assigned to an ambulances 100 percent of the time and still be properly classified as a §207(k) firefighter. While these requirements may appear rather straight-forward initially, special care needs to be taken to ensure that all four of the above criteria is satisfied.
There have been several high-profile legal decisions where fire departments lost the §207(k) exemption after a court determined firefighters assigned to EMS units lacked the “responsibility” to engage in fire suppression. These decisions involved firefighters assigned to EMS units that—although fully trained as firefighters—were not expected to perform any firefighting. Here, that does not seem to be the case. I would imagine that with only 7 firefighters on each shift, all-hands are needed for most fire calls.