Today’s FLSA Question: I am the union president for a mid-sized municipal fire department. Our labor agreement allows us to conduct an annual bid. Basically, all shift personnel bid by seniority in rank to a specific platoon (A, B, or C) and piece of apparatus once a year. The only “catch” is that the bid must occur at “no-cost” to the city. Now, one of our junior members is claiming that he is entitled to FLSA overtime pay because he ended up working an extra 48-hour shift because of the annual bid. He did not have enough seniority to stay on his current platoon and was required to change platoons. When the department moves personnel from one platoon to another, due to promotions or long-term vacancies, firefighters receive overtime pay for any extra shifts worked because of the change. But this is different, this platoon change is due to the bid. The chief wants to avoid any FLSA problems and is inclined to just pay the firefighter. However, if that happens, the chief is going to make a push to remove the annual bid from our labor agreement next round of negotiations. First, does the FLSA require overtime pay for any extra hours worked because of the annual shift bid? Second, does the provision contained in the contract that requires the bid to be “no-cost” to the city valid?
Answer: Good question. Many collective bargaining agreements contain language that allows members to bid to apparatus, stations, or platoons according to seniority. Similarly, many of these provisions also contain contract language that limits the department’s overtime obligation as a result of the bid process. This makes sense. However, whether this practice meets the FLSA’s overtime requirements depends on a couple of key facts.
First, whether any firefighter is entitled to overtime pay depends on the number of hours the firefighter works in the work period. The fact that this particular firefighter worked an extra 48-hour shift may have an impact on his overtime eligibility for the work period. However, that determination can only be made after counting all of the hours worked during the work period. For example, if that firefighter used sick or vacation leave for 48 hours during this same work period, this additional 48-hour shift would not impact his FLSA overtime eligibility for the work period. The two shifts would—more or less—cancel each other out. The firefighter is not automatically entitled to overtime pay for working the additional shift. However, he may be entitled to FLSA overtime pay if the additional shift puts him over the maximum hours for the adopted work period. The labor agreement, state law, or local practice might require overtime pay, but the FLSA does not.
Now onto your second question. In most instances, provisions of an otherwise valid labor agreement, will be unenforceable if those provisions conflict with the FLSA. Labor agreements can provide better or greater benefits than required by the FLSA, however labor agreements cannot provide a lesser benefit than guaranteed by the FLSA. Whether the “no-cost” provision is valid, will depend on whether it violates the FLSA. This is highly dependent on the specific facts at hand. Again, there can be instances where a particular firefighter works additional hours due to the annual bid, however his or her hours for the work period are still under the FLSA’s maximum hours standard for the work period. In those instances, the provision wouldn’t necessarily violate the FLSA’s overtime or hours worked standards.
The biggest take-away from this question is to develop strategies to avoid these types of questions or problems from arising in the first place. One the very best ways to avoid this entire issue is to make any transfers that may occur as a result of the annual shift bid effective at the beginning of a work period. This may require a little planning depending upon the length and start day of the work period; however, the result will be an annual bid that is truly “no-cost” to the department.
The ins and outs of the FLSA’s §207(k) exemption, work periods, and platoon transfers are just a few topics that are discussed in-depth at all of our FLSA for Fire Department’s live webinars. The next one if only a few weeks away. Please consider joining us.