Today’s FLSA Question: I am a paid firefighter for a small non-profit volunteer fire company. Our organization has a large group of volunteer firefighters and an all-volunteer chief and command staff. I am one of two full-time (Monday-Friday) firefighters. I am treated as an hourly employee, however, I do not receive any overtime. Between trainings, after-hours calls, and regularly scheduled shifts, I usually average sixty plus hours per week. The chief told me there is a special overtime exemption within the FLSA that allows very small fire departments to avoid paying firefightersany overtime. Is this true?
Answer: Good question. First, your chief is correct. Section 213(b)(20) of the FLSA exempts some small fire departments from the Act’s overtime pay requirements. But, as is often the case in these special FLSA rules, the devil is in the detail. Whether your fire department can qualify for this highly unique and often misunderstood overtime exemption is another story. Let’s look at the exemption and apply its requirements to your question.
First, in order to qualify for the “small fire department exemption,” the fire department must have less than five employees engaged in fire protection activities. Included in the term “employees” are full-time, part-time, and even per diem firefighters. Bona fide volunteer firefighters are not considered employees, and therefore do not need to be counted.
Let’s apply this to the example you provided: Your department has only two full-time firefighters augmented by volunteer firefighters and command staff. Your department would likely meet the first requirement of the “small fire department exemption.”
Second, in order to qualify for the “small fire department exemption,” the fire department must be a public agency. This analysis is a bit more complicated than merely counting the number of employees. As a general rule, a municipally run fire department that is managed by a political entity (city, town, county, etc.) is a public agency. But, what about a privately organized and managed volunteer fire company that is independent and autonomous of local government? As a general rule this type of organization, the typical 501(c)(3) volunteer fire company, would not be considered a public agency and therefore could not utilize the FLSA’s “small fire department exemption.”
Now, let’s apply the second requirement of this exemption to your facts. Is your department privately organized and managed? Is your department independent and autonomous of local government? If you answered yes to these questions, the “small fire department exemption” is not an option for your department.