Today’s FLSA Question: I am a union president for a mid-sized municipal fire department. We have several firefighters recovering from various long-term work-related injuries. The city requires injured firefighters return to work in a light-duty capacity as soon as possible. Historically, the firefighters worked five eight-hour days per week while on light duty. Between doctor’s appointments and therapy, light-duty firefighters rarely worked a full 40 hours per week. However, the city is now requiring light-duty firefighters work well in excess of 40 hours per week. The city is claiming since firefighters are paid to work 56 hours per week; they should work 56 hours per week, even when on light-duty. But, since the city does not want to pay firefighters any FLSA overtime, they are being sent home after only working 53 hours per week. First, does the FLSA allow light-duty firefighters work more than 40 hours per week? Second, does the FLSA allow the city to alter light-duty firefighters schedule to avoid paying any overtime?
Answer: Your questions raise issues that range from local collective bargaining laws, the terms and conditions of your labor agreement, workers compensation regulations, as well as the FLSA. For the sake of this post, we will simply look at the FLSA implications from your question.
In a nutshell, there is nothing in the FLSA or Department of Labor (DOL) regulations that would prohibit your employer requiring light-duty firefighters working more than 40 hours per week. The FLSA nor the regulations prohibit an employer from altering an employee’s schedule to avoid paying overtime. These schedule adjustments can be planned in advance (i.e. Kelly Day) or applied on an as needed basis during the firefighter’s work period. When you boil everything down in the simplest way possible, the FLSA only requires that employees receive a minimum wage and overtime when due. Most everything else (i.e. sick time, vacation time, personal days, workers comp, scheduling, etc.) falls outside of the scope of the FLSA.
However, that does not mean the FLSA will not impact your city’s decision to extend the hours of light-duty firefighters as you describe above. In fact, FLSA implications from this new policy may likely end the city’s policy as quickly as it began. Here is why.
The main reason why your city may need to take a second look at this new policy relates to FLSA overtime. In particular, when a firefighter is eligible for FLSA overtime. The FLSA creates a presumption that all employees are eligible for overtime after they work 40 hours in a 7-day workweek. As most firefighters are keenly aware, the FLSA and DOL regs create a partial overtime exemption for employees engaged in fire protection activities. The question that your city officials will need to examine is whether light-duty firefighters can qualify as employees engaged in fire protection activities.
§207(k) Partial Overtime Exemption
Public agency fire departments can opt to utilize the FLSA’s partial overtime exemption found in 29 U.S.C. §207(k) for employees engaged in fire protection activities. This partial overtime exemption—often simply referred to as the 7k exemption—allows public agency fire departments avoid the traditional FLSA mandate of paying overtime to non-exempt employees that work more than 40 hours in a 7-day workweek.
The 7k exemption allows public agency fire departments to extend the traditional overtime threshold from 40 to 53 hours per week. Additionally, the 7k exemption allows fire departments to extend the traditional 7-day workweek to a work period of up to 28 days. This combination of increasing the number of hours a firefighter must work before being eligible for FLSA overtime, in conjunction with extending the traditional 7-day workweek to a work period of up to 28 days significantly reduces a firefighters’ potential overtime eligibility.
Make no mistake about it, this was Congress’s intention when it was created. The 7k exemption was designed to help reduce the burden placed upon state and local governments pertaining to overtime pay for firefighters and to a lesser extent police officers. However, the 7k exemption it is only meant to apply to firefighters that meet the definition of an employee engaged in fire protection activities.
In 1999, Congress amended the FLSA to include a definition of employee(s) engaged in fire protection activities. This can be found in 29 U.S.C. §203(y):
“Employee in fire protection activities” means an employee, including a firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazardous materials worker, who—
(1) is trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department of a municipality, county, fire district, or State; and
(2) is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.
Now, let’s apply some of these above requirements to your situation.
- Does a light-duty firefighter have the “responsibility to engage in fire suppression”?
- Is a light-duty firefighter “engaged in the prevention, control, and extinguishment of fires”?
- Does a light-duty firefighter actually respond “to emergency situations”?
The employer must establish that all of the above criteria is met in order to continue to utilize the §7k exemption for light-duty firefighters. There may be instances that a light-duty firefighter can meet the requirements of §203(y), however in the event he or she cannot, the light-duty firefighter would be eligible for overtime for all hours worked over 40 every 7 days.
This is why the FLSA may ultimately impact the city’s choice to extend the hours of light-duty firefighters. There may be other applicable overtime exemptions that the fire department can claim, however the 7k exemption will not be available.
In the end the FLSA will not prohibit the city from requiring the light-duty firefighters work longer than 40 hours per week, however the FLSA may require the firefighter receive overtime for all hours worked over 40 every 7 days which is likely not what the city was looking to achieve by extending the hours of light-duty firefighters.
This is a very common FLSA question that is frequently asked at all of our FLSA for Fire Departments seminars. If you have questions like this one, please consider joining us.