Today’s FLSA Question: I have a question about mandatory overtime and the FLSA. If a firefighter is ordered to work an extra shift, doesn’t the FLSA require time and one-half pay for that shift? This is my situation. I am a full-time paid firefighter/paramedic. We work a 24/48 schedule with an assigned Kelly Day every three weeks. This combination results in a 48-hour average workweek. Department policy mandates overtime pay as required by the FLSA. As a result, we do not receive any overtime pay until we have worked more than 159 hours over the three-week work period. Typically, if a firefighter picks up an extra 24-hour shift, the first 15 hours is paid at straight time and the second 9 hours is paid at time and one-half. If a firefighter uses sick or vacation leave and picks up an additional shift in the same 21-day work period, the entire extra shift is straight time. But, what about a firefighter that is ordered to work an extra shift? It doesn’t seem fair to order someone to work and not at least pay them overtime. Does the FLSA require overtime when an employee is ordered to work an extra shift?
Answer: This is a common question. Unfortunately, you are not going to like the answer. Whether a firefighter is ordered to work or works voluntarily is immaterial to his or overtime eligibility under the FLSA. Many organizations pay overtime automatically for all additional (unscheduled) hours worked by firefighters under a policy, past practice, or a labor agreement. However, a firefighter’s right to overtime pay under the FLSA is strictly the result of hours worked in the work period.
Here is a harsh example. Imagine this: A firefighter is ordered to work eight consecutive 24-hour shifts. The firefighter is then given the next 20 days off. It is hard to imagine that firefighter would not be entitled to some overtime pay as a result. However, if the firefighter only worked 192 hours (24 hr. shift times eight shifts) in the 28-day work period, that firefighter would not receive any FLSA overtime. In fact, that firefighter could be ordered in for an additional 20 hours of work and still not receive any overtime pay. (Fire departments that have adopted 28-day work periods are only required to pay overtime for all hours worked over 212 every 28 days.) Obviously, this hypothetical raises a number of issues outside of overtime eligibility. It would defy logic, and common sense, for any employer to order an employee to work 8 consecutive days absent some significant extenuating circumstances.
It often surprises people to learn that the FLSA does not require employers provide employees with paid sick leave, vacation leave, or personal days. Similarly, the FLSA does not require employers pay employees holiday pay or time and one-half for working a holiday. State laws, local ordinances, and collective bargaining typically require these common benefits, however the FLSA does not.
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