Today’s FLSA Question: I am full-time firefighter for a small combination fire department. We work a 24/48 schedule for an average of 56 hours per week. The department has a policy that requires firefighters be on-call for at least one 24-hour shift every two-week work period. The department pays on-call firefighters $24 for each on-call shift and overtime if called back during the on-call shift. The department requires on-call firefighters arrive at the station within 15 minutes of being called back and imposes discipline if late. According to our chief, this practice has been in effect for years, but is not addressed in our labor agreement. I don’t have a problem with being on-call once in a while, but I live forty-five minutes from the station. When it is my turn to be on-call I end up hanging around the station all day and crashing on the couch at night. Since the department allows on-call firefighters stay in the station while on-call doesn’t the FLSA require us to be paid for this time? I mean, what is the difference between the time I am on-call waiting in the station for a call versus the time that I spend on-duty basically doing the same thing? Personally, I don’t see a difference.
Answer: Good question. Like many FLSA related issues, there are a lot of moving parts here. Whether an employee’s on-call time must be compensated requires a thorough examination of all the facts. Each situation is likely different. The fact that the chief allows firefighters remain at the station during on-call time does not automatically turn on-call time into compensable work time. However, if the chief encouraged or required firefighters remain in the station while on-call, that would likely turn on-call time into compensable work time. Again, a lot of moving parts. Let’s look at this a little deeper in order to get a better understanding of the issues.
Let’s start with a couple of very basic FLSA principles. First, the FLSA requires employers compensate employees for all hours suffered or permitted to work. Second, the FLSA requires that non-exempt employees receive at least the federally mandated minimum wage and overtime when required for all time suffered or permitted to work. As a general rule, the FLSA requires employers pay employees for all hours worked.
This leads us to a logical question. Would the time spent by yourself and other firefighters on-call whether at the fire station, or in another location, be considered hours worked for FLSA purposes? Whether on-call time must be compensated under the FLSA requires a fact based analysis. Unfortunately, there is no easy one size fits all answer that addresses all the possible on-call time situations.
One of the key factors analyzed by courts and the Department of Labor (DOL) in reaching a determination of whether on-call time must be compensated is related to the amount of control exerted by the employer over the employee’s time while on-call. If the employee is free to “pursue his or her own personal pursuits” while on-call, the time will most likely not be compensable. Understandably, if the restrictions placed on the employee during on-call time prevent them from “pursu[ing] his or her own pursuits,” the time would be compensable. For more info related to on-call time, click here.
Now, in order to even attempt to answer your specific question, we need some more information. Here are some questions that we need to ask:
- Does the department require on-call employees remain in the station while on-call? If yes, then the on-call time should be compensable. If no, continue to the next question.
- Assuming the department does not require the on-call firefighter remain in the station, but simply allows it for their convenience, is the on-call firefighter performing any work during their on-call time? This could be as simple as maintaining personal or department equipment, cleaning the apparatus or station, or engaging in any of the typical duties performed by the on-duty crews. If yes, then again, this time would be compensable under the FLSA.
Further, DOL regulations found at 29 CFR §553.221(g) help shed a little light on how the DOL or a court might view on-call time spent in the fire station.
29 CFR §553.221 Compensable hours of work
(g) The fact that employees cannot return home after work does not necessarily mean that they continue on duty after their shift. For example, employees in fire protection activities working on a forest fire may be transported to a camp after their shift in order to rest and eat a meal. As a practical matter, the employee in fire protection activities may be precluded from going to their homes because of the distance of the fire from their residences.
Given the above example, it is a clear indication that the DOL does not believe an employee that spends his or her on-call time on or at the employer’s premises is automatically entitled to compensation for this time. Again, we are back to examining all of the factors to reach a determination of whether the on-call time must be compensated.
Lastly, any organization that utilizes on-call time for firefighters or other public safety professionals are wise to consider the following. First, it is critical that the department’s policies and procedures clearly spell out the differences between on-call time versus on-duty time. More specifically, what are the expectations of on-call personnel that opt, for their own benefit, to remain on the premises during their on-call hours. This is critical. Second, if the firefighters are represented by a union, the agreement between the parties related to on-call time should be included in the labor contract. Third, any on-call stipend or compensation provided to employees in recognition of the inconvenience of being on-call must be included in the employee’s regular rate of pay. Fourth, a thorough review of local wage and hour laws would be necessary, since local laws could impact the compensability of on-call time as well. Best practice requires these issues be clearly addressed prior to implementation to avoid any potential wage and hour violations that could pop up.
Do you have questions related to on-call time, regular rate, or the interplay between collective bargaining agreements, city policy and the FLSA? Please consider joining us at one of our upcoming FLSA for Fire Departments live webinars.