Today’s FLSA Question: I am a fire chief for a small full-time fire district. Our firefighters only receive overtime after they work 212 hours in a twenty-eight-day work period. We do not pay any overtime unless the FLSA requires it. The vast majority of our neighboring departments pay their firefighters overtime for any unscheduled work hours regardless of actual hours worked in the work period. Basically, any unscheduled work time is automatically overtime even though the FLSA does not require it. Understandably, my firefighters would like our policies changed to be like our neighbors. I have been grappling with city hall to find a workable compromise. Finally, we came up with this. What if we will pay our firefighters time-and-one-quarter for all unscheduled work time up until the firefighter reaches the 212-hour threshold. Once the firefighter reaches the 212-hour mark, we will pay the firefighter FLSA overtime like we have always done. I think this is a fair compromise, but the big question is, does FLSA allow us to pay some overtime at time and one-quarter?
Answer: The FLSA would not prohibit this type of arrangement. But the bigger question is, what other FLSA implications will arise for paying firefighters time and one-quarter for some of their work hours? The answer to that question may surprise you. In order to answer this question, we need to examine two basic FLSA principles. The first relates to hours worked (i.e. the number of hours that an employee must work before being entitled to FLSA overtime) and the second relates to the rate of pay at which FLSA overtime must be paid.
The FLSA only requires overtime pay for firefighters after they have physically worked in excess of the maximum hours standard for the adopted work period. For example, your fire department utilizes a 28-day work period for FLSA overtime purposes. This means that the FLSA will require firefighters receive FLSA overtime pay for all hours worked over 212 every 28 days. If your department utilized a 14-day work period, firefighters would be entitled to FLSA overtime for all hours worked in excess of 106 every 14 days. If a firefighter utilizes leave hours during the course of his or her work period, the firefighter might not be entitled to any FLSA overtime for working additional hours outside of his or her normal schedule. FLSA overtime eligibility depends on the hours worked in the particular work period, not the firefighter’s schedule.
Overtime Rate of Pay
The FLSA requires that all FLSA overtime be paid a rate not-less-than time and one-half of the firefighter’s regular rate of pay. The FLSA does not prohibit paying firefighters at rates higher than this. For example, some fire departments pay firefighters double-time for working on major holidays. This is allowable under the FLSA. Similarly, as you cited in your example, some fire departments pay firefighters overtime for working extra unscheduled shifts even if not required by the FLSA. Again, this is allowable and is a common practice in the fire service. However, a fire department cannot pay less than time and one-half of the firefighter’s regular rate of pay for all FLSA mandated overtime.
Additionally, nothing within the FLSA would prohibit a fire department from paying firefighters a lower rate of pay for hours worked outside of their normal schedule, provided they have not exceeded the maximum hours for the work period. To utilize your example, firefighters receive time and one-quarter for all hours worked outside of their regularly scheduled shifts until they reach 212 hours for the 28-day work period, at which time FLSA overtime would “kick-in.” The hours worked over 212 must be paid at a rate of pay not less than time and one-half of the employee’s regular rate.
Regular Rate Implications from Time and One-Quarter Pay
However, this leads us to a potential problem with the compromise you have reached with your firefighters. A firefighter’s regular rate of pay must include all remuneration paid to or on behalf of the firefighter. As a general rule, this includes longevity pay, bonuses for certifications, and other wage augments. In effect the time and one-quarter pay acts like any other wage augment or enhancement your firefighters receive during the work period. Instituting this compromise will result in a 25 percent increase in a firefighter’s regular rate for any unscheduled hours that he or she works during the work period.
This may be best explained through an example:
Fire department Alpha pays its firefighter’s time and one-quarter for all hours worked outside of their normal work schedule and FLSA overtime for all hours worked over 212 every 28 days. Firefighters make $20 per hour. Firefighter Bravo works an extra 48 hours during the work period. He is paid only paid $25 per hour (time and one-quarter) for these additional unscheduled work hours. Now, towards the end of the work period, firefighter Bravo exceeds 212 hours worked. The remainder of his work hours must be paid at time and one-half of his regular rate for the work period. By paying firefighter Bravo time and one-quarter (extra $5 per hour) for 48 hours, the fire department increased his remuneration for the work period by $240. This $240 must be added to his wages for the work period. This will result in an increase to his regular rate for the work period.
Back to your question. The compromise that you and your firefighters have reached would not violate the FLSA’s overtime requirements, however failure to include the additional pay received for unscheduled hours in the firefighter’s regular rate would result in an FLSA regular rate violation. Just as an aside. There is an FLSA regular rate exception for time and one-half pay that is received for working during the work period… So, if it is financially possible to pay your firefighters time and one-half for unscheduled shifts, like your neighboring departments do, you will not have this headache.