Firefighters, Floating Kelly Days, and the FLSA

Today’s FLSA Question: My department provides all firefighters and officers [except for staff personnel assigned to 40-hour workweeks] 13 floating Kelly Days per year. In exchange for these Kelly Days, we do not receive any FLSA overtime for our scheduled work shifts. In the past, the department allowed two firefighters to use their floating Kelly Day on any given shift. Now, the department instituted a new policy that reduces this number to one. Does the FLSA allow a department to limit the number of firefighters utilizing a floating Kelly Day?

Answer: Questions about floating, swapping, and banking Kelly Days are relatively common albeit complicated questions. Most often the folks asking these questions are looking for some provision in the FLSA, Department of Labor (DOL) regulations, or legal precedent that supports their position. Unfortunately, that is not always possible. This is one of those situations.

You will not find the term Kelly Day in the FLSA or DOL regulations. Neither the FLSA nor DOL regulations limit or dictate the proper administration of Kelly Days. Whether your department’s “floating Kelly Day” schedule achieves the desired goal of zero FLSA overtime for all scheduled shifts will depend on your work schedule in conjunction with the adopted work period. However, your question raises a common misconception regarding the impact of a Kelly Day on a firefighter’s hours worked. Let’s take a closer look.

First, a Kelly Day is a scheduled day off intended to reduce a firefighter’s hours worked in a particular work period. Depending upon the frequency of the Kelly Day and the firefighter’s schedule; a properly placed Kelly Day can [in theory] reduce a firefighter’s hours worked to a point where no FLSA overtime is required for a firefighter’s scheduled work shifts. However, just providing a firefighter with a Kelly Day does not automatically result in no FLSA overtime for scheduled work shifts.

The FLSA requires firefighters receive overtime pay for all hours worked over the statutory maximum for the adopted work period. A firefighter’s maximum hours varies based on the length of the work period. For example, a fire department that has adopted a 14-day work period, must pay overtime to firefighters that work more than 106 every 14 days. Similarly, a fire department that has adopted a 28-day work period must pay overtime to firefighters for all hours worked in excess of 212 in 28 days.

Second, each work period stands alone. That means that hours worked in one work period must be counted in that work period. This is often best explained through a hypothetical:

Firefighter Jones is scheduled to work and works 240 hours in a 28-day work period. The maximum hours standard for a 28-day work period is 212 hours. Firefighter Jones is entitled to 28 hours or FLSA overtime or 42 hours of FLSA compensatory time for the work period. Hours worked in this work period cannot be forwarded or credited against hours not worked in a future or previous work periods.

The first step in determining FLSA overtime eligibility is to determine the number of hours worked in the work period. Many folks mistakenly believe that Kelly Days can be moved [either forward or back] or even exchanged between firefighters and still meet the FLSA’s overtime requirements. This is simply not the case. Under the FLSA each work period stands alone.

Third, based on the facts that you provided, the “floating Kelly Day” you describe is more of a paid day off as opposed to an actual Kelly Day. As discussed above, a Kelly Day is intended to reduce a firefighter’s hours worked in a particular work period. Granted the impact of utilizing a  “floating Kelly Day” will reduce a firefighter’s hours worked in the work period it is taken. However, it will have zero impact on a firefighter’s hours worked in work periods it is not.

Finally, from a management perspective, one of the most challenging aspects of implementing a Kelly Day within a firefighter’s work schedule is achieving the maximum overtime benefit from the scheduled day off. From the firefighter’s perspective, being able to pick a day off is certainly more beneficial than receiving a prescribed Kelly Day. It is only natural that these two competing interests would merge into a concept of a “floating Kelly Day.”  Unfortunately, the FLSA does not contemplate such a compromise and the requirement that a firefighter’s overtime eligibility be based on his or her hours worked in the work period cannot be waived, even if the subject of an agreed upon compromise.