Today’s FLSA Question: I am a non-firefighting paramedic and a union representative in an urban city. The city allows firefighters to freely substitute with each other for their assigned shifts. We would like to receive the same opportunities as firefighters regarding substitutions. Unfortunately, the city’s HR director believes the FLSA limits shift substitutions to firefighters and police officers. As a result, he will not extend this benefit to non-firefighter medics. Is this true? Can non-firefighter medics substitute with each other?
Answer: This is a common misconception. The FLSA does not limit substitutions to only police officers and firefighters. However, the FLSA does limit shift substitutions to employees of public agencies. Private sector EMTs, paramedics, and even firefighters cannot utilize the special provisions of the FLSA related to shift substitutions.
Generally speaking, employers must count all hours worked by overtime eligible employees when determining FLSA overtime eligibility. However, public agency employers are allowed several very unique exceptions to this general rule. One of the more common and often misunderstood exceptions, relate to shift substitutions. A shift substitution occurs when one employee substitutes [works for another employee] during his or her assigned shift. The hours an employee [like a non-firefighter medic] work as a substitute for another similar employee do not count towards hours worked in that workweek. In essence, the employer is able to treat the substitution as if it never happened.
Here is the full text from the FLSA related to substitutions:
If an individual who is employed in any capacity by a public agency which is a State, political subdivision of a State, or an interstate governmental agency, agrees, with the approval of the public agency and solely at the option of such individual, to substitute during scheduled work hours for another individual who is employed by such agency in the same capacity, the hours such employee worked as a substitute shall be excluded by the public agency in the calculation of the hours for which the employee is entitled to overtime compensation under this section. 29 U.S.C. §207(p)(3)
In 2005, the Department of Labor (DOL) issued an opinion letter to a group of respiratory therapists that worked for a public (state-run) hospital. The respiratory therapists wanted to be able to substitute for each other’s assigned shifts. The hospital was understandably concerned this could affect the hours worked for the substituting therapists. The therapists contacted the DOL to get an opinion on the matter. The DOL opined that as long as the therapists were voluntarily agreeing to substitute for each other this did not constitute an FLSA violation. I suggest you bring this letter to your HR director.
The ins-and-outs of substitutions are very popular topics at all of the FLSA for Fire Departments seminars. The next one will be held in Denver, Colorado in September 2019. Please consider joining us.