Today’s FLSA Question: I am a city HR manager. One of our firefighters is out of work with a long-term illness. Unfortunately, this firefighter has exhausted all of his sick time. In response other firefighters have been working as substitutes for his assigned shifts. In theory, we have no issues with this practice since firefighters frequently substitute for each other’s shifts. However, what happens if this firefighter does not return to work? If the firefighter ends up retiring as a result of his illness, does the FLSA require the city pay for the hours firefighters worked as substitutes since the ill firefighter never had an opportunity to work for them?
Answer: Very good question. You are not alone in wondering if there could be FLSA implications from such a practice. In fact, the Department of Labor (DOL) answered this same question after it was posed by a group of firefighters in 2004.
In that instance, a group of firefighters sought the DOL’s opinion whether “donating” shifts for an injured firefighter could create FLSA liability for the fire department. In their scenario, a small group of firefighters were substituting for an injured co-worker’s assigned shifts following an off-duty accident. Firefighters were working the injured firefighter’s shifts in an effort to avoid her losing any pay and benefits as a result of her prolonged absence.
Fire department officials were concerned that in the event the injured firefighter could not return to duty, there would be FLSA liability for the city because the injured firefighter did not “re-pay” the substituting firefighters. In response to the city’s concerns, the firefighters asked the DOL if the FLSA allows firefighters to “donate” shifts for an injured firefighter.
The DOL offered a very simple and clear-cut opinion regarding this type of scenario. As long as the statutory and regulatory requirements of the substitution is met, there is zero FLSA liability for fire departments that allow firefighters to “donate” shifts for an injured co-worker.
The DOL wrote that the FLSA does not require substitutions be re-paid. Whether a substitution is re-paid is a matter to be resolved between the substituting parties. There are numerous other reasons why fire departments should both monitor and regulate the usage of substitutions, but the FLSA is not one of them.
For more information on the statutory and regulatory requirements of substitutions click here.
One important point to remember, there may be state or local regulations that prohibit the “donating” of work shifts. You need to carefully examine state law to ensure this type of practice would not run afoul of other non-FLSA regulations.
Here is a copy of the 2004 Opinion Letter: