City Policy May Prove A Violation of the FLSA

Today’s FLSA Question: I am a newly appointed firefighter in a small municipal fire department. We work a 48/96 schedule and are paid every two weeks. The city has an old policy related to payroll that I do not think is FLSA compliant. If a firefighter misses any worktime during the two-week work period, they lose their FLSA overtime. Recently, I used 6 hours of sick leave due to a doctor’s appointment. Even after taking six hours off, I still worked a total of 138 hours in that two-week period. But I didn’t get any overtime. I was told that city policy forbids employees from receiving any overtime if they use any sick leave during the pay period. I can understand losing overtime if a firefighter misses an entire 48-hour work shift, but I only missed a few hours. Does the FLSA allow a city policy to take precedence over federal law?

Answer: No. A city policy cannot deny employees the basic minimum wage and overtime rights guaranteed under the FLSA. For example, a city couldn’t pass an ordinance mandating a minimum wage lower than what the FLSA requires. Similarly, a city couldn’t pass a policy that all city employees are not eligible for overtime regardless of actual hours worked.

It is common for city policies to provide more enhanced benefits than required by the FLSA. Paying employees more than the federal minimum wage and guaranteeing employee’s meal and rest periods during the workday are good examples of this. Additionally, collective bargaining agreements also provide a greater benefit than what is mandated by federal or state laws. However, when the provisions of a city policy, collective bargaining agreement, or state law provide a lesser benefit than what is required under the FLSA, these provisions will prove unenforceable.

Lets’ get back to your question. As a §207(k) firefighter, you should receive overtime for all hours worked over 106 every 14-day work period. Hours worked means hours actually worked. One of the more challenging parts of applying the FLSA and DOL regulations to firefighters and other first responders is that firefighters typically have assigned or set schedules. Most firefighters work a 24-hour shift, while many, like yourself work a forty-eight-hour shift. The frequency and pattern of shifts may vary from city to city, but the basic premise remains the same. A firefighter’s right to overtime under the FLSA is not a result of the assigned shift. A firefighter’s right to overtime under the FLSA is solely the result of hours worked in the work period.

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