Disciplinary Suspensions and the FLSA

Today’s FLSA Question: I am a deputy fire chief in charge of administration and personnel. Our firefighters work a 24/48 schedule with a 21-day work period and an assigned Kelly day every third week. We recently suspended (without pay) a firefighter for two 24-hours shifts following a serious disciplinary matter. Instead of serving the suspension as planned, the firefighter has asked if he can work his next two Kelly days for free. At first, we thought that idea was crazy, but when you think about it, it would save us money (from hiring a replacement during suspension). . . . Are there any FLSA concerns if we opt to allow the firefighter to work his Kelly days without pay?

Very interesting question. . . . Most likely, yes. However, it depends. . . .

There are several issues here. First, the FLSA generally requires that employees be paid for all hours “suffered or permitted” to work. The FLSA was crafted in an effort to prevent unscrupulous employers from taking advantage of employees. The provisions of the FLSA cannot be waived even when the employer and employee mutually agree. There are very few circumstances where non-exempt public agency employees do not have to be paid for all hours worked. Working during an unpaid disciplinary suspension is not one of them.

There may be another option available. Theoretically, the firefighter’s wages could be reduced for the hours worked during the scheduled Kelly day. The fire department could pay the firefighter a lower wage (provided the reduced wage is above minimum wage) for the hours worked during the “suspension”. The “suspension” may need to be increased to more than just the two Kelly days to get the same effect if the firefighters wages are only reduced. However, this practice could raise additional issues when calculating the firefighter’s regular rate for the work period.

Next, even if it was permissible not to pay the firefighter for the hours worked during the “suspension,” these hours worked must be included when determining overtime eligibility. The FLSA requires overtime paid to all non-exempt employees for all hours worked above the statutory maximum for each work period. A firefighter who works a 21-day work period would be eligible for FLSA overtime after working 109 hours in 21 days. The hours a firefighter works on “suspension” would need to be included in this calculation. Therefore, the firefighter working during a “suspension” could still receive overtime pay for some hours in the work period. This could defeat the whole purpose of the suspension.

Finally, there could be state laws in your jurisdiction that provide greater protections than the FLSA does. Your local counsel should thoroughly research this issue before you consider undertaking this option. This is just one of many topics covered at all of our upcoming FLSA for Fire Departments seminars. Please consider joining us.

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