207(k) Exemption, Non-Firefighter Medics, and the FLSA

Today’s FLSA Question: I recently accepted a job as fire chief in a small combination fire department. We have a great mix of full-time, part-time, and paid-on-call firefighters. This department is much smaller than my previous employer and they do things a little differently. I am concerned about the way we pay our non-firefighter medics.

Historically, the department hired from within. New hires possessed most, if not all required fire and EMS certifications upon hire. However, recently there has been a shortage of qualified applicants. In response, the department started hiring licensed paramedics without firefighter I and II certification. The newly appointed “non-firefighter” medics are assigned to EMS units until they complete their fire training. Firefighter training is conducted two nights per week and one Saturday per month. This training process takes around six months to complete.

My concern is that the department pays these medics as if they are firefighters during this training period. The medics are assigned to 24-hour shifts and only receive overtime after they work 106 hours every two weeks. Like I said, this department has done this for a while and everybody seems to like this practice. However, I am a little skeptical about continuing this moving forward. Does the FLSA allow non-firefighter medics be paid like firefighters while receiving firefighter training?

Answer: You are not the only agency struggling with these types of problems and you are wise to be concerned about the FLSA implications from this very common practice. Only medics that are cross-trained as firefighters qualify for the FLSA’s §207(k) partial overtime exemption. Generally speaking, the FLSA requires non-firefighting medics receive overtime for all hours worked over 40 every 7 days.

In a nutshell, the FLSA’s §207k exemption allows public agency fire departments avoid the traditional FLSA overtime requirement (i.e. OT after 40 hours every 7 days). However, a fire department can only utilize the §207k exemption for employees engaged in fire protection activities.

The FLSA provides a definition of employees engaged in fire protection activities. It can be found at 29 U.S.C. §203(y). To be properly classified as an employee engaged in fire protection activities, an employee must be:

1. Employed by a public fire department;
2. Trained in fire suppression;
3. Have the legal authority and responsibility to engage in fire suppression; and
4. Be engaged in the prevention, control, and extinguishment of fires or response to emergency situations.

All four of the above requirements must be satisfied to meet the definition. 

Medics that are not trained as firefighters, similar to newly hired medics in your organization will not meet the second or the third requirements listed above. Namely, they are not trained, and they have no authority of responsibility to engage in fire suppression. Initially, the most significant hurdle for your non-firefighter medics will most likely be related to the training aspect found within the 203(y) definition.

Unfortunately, the FLSA does not contain a bright-line rule indicating when an employee has received training sufficient to be considered a “trained firefighter” under §203(y). Each organization make this determination on a case-by-case basis. However, at some point during their firefighter training your medics will likely be sufficiently trained as firefighters to meet this requirement.

For example, could a medic be classified a §207k firefighter after only two or three weeks of firefighter training? Probably not. But, compare that to a medic that has completed basic firefighter training, is fit tested for SCBA usage, has successfully completed his or her live burn exercise, and simply needs to complete two or three weeks of ride-time to meet department policy to complete his or her training? Is this medic a trained firefighter as contemplated by the §7k exemption? Probably yes. But again, that is only a decision that individual departments must make.

Similarly, there is no bright-line rule pertaining to a medic’s legal authority and obligation to engage in fire suppression. Again, this lies in each individual organizations policies and procedures. But, can a medic have the responsibility to engage in fire suppression if they are not trained? One would assume that once training is completed, responsibility and authority would closely follow.

Finally, you wrote that this practice pre-dates your time as chief and that everybody seems to like it. Just to be clear. The FLSA contains numerous defenses to alleged violations, unfortunately “we have always done it this way” is not an acceptable defense. Additionally, experience has shown that it only takes one current or former disgruntled employee to change “everybody seems to like it” into “you owe me double damages, court costs, and attorney(s) fees.”  

The applicability of the §207k partial overtime exemption to medics, firefighters, and even dispatchers is one of many topics covered in-depth at all of the FLSA for Fire Departments seminars. Please consider attending.

FLSA for Fire Departments

Mid-West – Kansas City, MO – May 5-7, 2020

West-Coast – Seattle, WA – Sept. 15-17, 2020