The FLSA’s §207(k) Exemption May Not Be an Option for Some Fire Departments

Today’s FLSA Question: I am a full-time paid fire chief for a private non-profit volunteer fire company. Over the past twenty-five years our organization has grown and required the hiring of several daytime staff personnel (training chief, fire marshal, assistant chief) to augment our core of volunteer and paid-on-call firefighters. But we are now in the process of hiring our first full-time paid firefighting personnel. These personnel will likely be eligible for overtime. We need to budget for that occurrence. As a 501(c)(3) non-profit private volunteer fire company, can we utilize the FLSA’s §207(k) partial overtime exemption for our soon-to-be full-time firefighters? If we cannot, what are some of the options available to minimize our overtime costs moving forward?

Answer: Private non-profit fire companies cannot utilize the FLSA’s §207(k) partial overtime exemption for employees engaged in fire protection activities. (I.e., §207(k) firefighters.) Only public agency employers can qualify for this unique overtime and maximum hours exemption found in the FLSA and Department of Labor (DOL) Regulations. As a non-public agency employer, your firefighters will most likely be eligible for FLSA overtime after working 40 hours in a seven-day workweek.

Recently, the DOL issued an opinion letter that listed the requirements necessary for any organization to qualify as a public agency employer and avail itself to the FLSA’s §207(k) exemption. Click here for more information.

Despite being unable to utilize the FLSA’s §207(k) exemption, both the FLSA and DOL regulations still may provide reasonable options aimed at limiting some of the department’s overtime obligations for all employees moving forward.

Senior staff officers may qualify as overtime exempt employees. Whether these officers meet the requirements necessary to allow the department to avail itself to one of the FLSA’s complete overtime exemptions will require a thorough examination of several factors. In particular, the method and amount the employees are paid in conjunction with the duties and responsibilities associated with their positions will determine if they can be classified as overtime exempt employees.

There may also be options available to minimize overtime liabilities for the newly appointed full-time firefighting personnel as well. Recent changes to DOL regulations pertaining to the Fluctuating Workweek (FWW) method of overtime compensation could prove very useful in limiting overtime expenses associated with employing full-time firefighters. The FWW method of overtime compensation has historically allowed employers avoid significant amounts of traditional overtime pay due to workers. Whether this would be an option for your organization will again depend on the specific facts. For more on the DOL’s changes and how these changes could impact firefighters and other emergency responders, click here.

Additionally, current and longstanding DOL regulations pertaining to sleep time and mealtime deductions for firefighters and other emergency responders could also prove a valuable tool keeping overtime costs down for the department. Historically, properly implementing both of these deductions has proven challenging for some fire departments. In particular, sleep time deductions require that the firefighter agrees to such a deduction and that the firefighter usually enjoys an uninterrupted night’s sleep. These factors can prove challenging to prove if not structured correctly and certainly may not apply to all firefighters or fire departments. For more on the sleep time deduction, click here.

At this point, it would be very prudent to examine all of these possible options prior to hiring the new firefighters. In particular, consult with local counsel and consider all of these options in conjunction with your organization’s specific facts. Not all of these options may be available to your organization.