Today’s FLSA Question
I run payroll for a municipal fire department. The fire chief wants to give firefighters an opportunity to work part time on their days off, staffing a city ambulance that transports sick and elderly patients home from the hospital, to doctors’ appointments, dialysis treatments, etc. Firefighters will be paid their regular hourly rate for all hours worked on the ambulance. We currently work a 24/48 schedule and pay overtime for all hours worked over 106 every 14 days. Do we need to include hours firefighters work on the ambulance when determining overtime eligibility for the work period?
Most likely the hours firefighters spend working on a transport ambulance count as hours worked for FLSA overtime purposes. There are only a few limited circumstances where hours worked at two different jobs for the same employer are not tallied for FLSA overtime purposes. Details can be found at section §207(p) of the FLSA.
- 29 U.S.C. 207(p)(2) If an employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency undertakes, on an occasional or sporadic basis and solely at the employee’s option, part-time employment for the public agency which is in a different capacity from any capacity in which the employee is regularly employed with the public agency, the hours such employee was employed in performing the different employment shall be excluded by the public agency in the calculation of the hours for which the employee is entitled to overtime compensation under this section.
In this situation, there are three specific requirements necessary to exclude hours worked on the ambulance from maximum hours for FLSA overtime purposes.
- First, the work must be “occasional or sporadic.” If firefighters work consistently on the ambulance, it most likely will not meet this requirement. However, if the ambulance is only staffed occasionally, and the firefighters’ work on it is infrequent or irregular, then this requirement could be met.
- Second, the work must be “solely at the employee’s option.” The firefighters work on the ambulance must be voluntarily to meet this requirement.
- Third, (and most likely the most difficult requirement to satisfy) the work on the ambulance must be of a “different capacity” from any work that the firefighter generally performs. If a firefighter responds to emergencies, transports patients, and provides EMS as part of his or her job duties, hours worked on the transport ambulance would count towards maximum hours for overtime purposes.
Most likely, the hours firefighters work on a transport ambulance would count for overtime purposes—however, each situation is unique, and a thorough examination of the facts is necessary to make an ultimate determination. Also, there may be state laws that impact this analysis as well. You definitely want to run this by local counsel before making the final determination. This is one of many topics discussed at all our upcoming Fair Labor Standards Act (FLSA) for Fire Departments seminars. Please consider joining us.