Six Wichita, Kansas fire investigators have filed a federal lawsuit seeking overtime pay under the FLSA. The City of Wichita currently classifies fire investigators as employees engaged in fire protection activities under the FLSA’s §207(k) partial overtime exemption. The investigators claim they should be classified law enforcement personnel as opposed to employees engaged in fire protection activities for FLSA overtime purposes. Why would investigators want to be classified as law enforcement personnel? The answer lies in the difference between the number of hours a firefighter must work before being eligible for FLSA overtime as opposed to a law enforcement officer.
207(k) for Police and Firefighters
Under the FLSA most private sector civilian employees are eligible for overtime after working 40 hours in a 7-day period. However, as many of you are aware, there are numerous exceptions to this general rule. Included in these exceptions is the common §207(k) partial overtime exemption for law enforcement and fire protection personnel. This partial exemption applies to both law enforcement and fire protection personnel, however law enforcement personnel are typically entitled to more overtime pay than firefighters under §207(k).
A significant distinction between how law enforcement and fire protection personnel are treated under §207(k) lies in the maximum number of hours they must work before being eligible for FLSA overtime. Firefighters are required to work at least 53-hours per week, or 212 hours every 28-days before being eligible for FLSA overtime. Law enforcement personnel are only required to work 43-hours per week, or 171 hours every 28-days before being eligible for FLSA overtime.
Wichita fire investigators are paid under the firefighter maximum hours standard for FLSA purposes. This means they are only receiving overtime after working more than 204 hours every 27-day work period. If the city utilized the law enforcement standard investigators would be eligible for overtime after working only 165 hours in the same 27-day work period. According to the investigators this misclassification represents almost $400 in unpaid overtime every pay check.
How Can an Employer Know Which Overtime Standard to Use?
The DOL has crafted regulations designed to answer this exact question for employers. The regulations found at 29 CFR §553.213 entitled “Public agency employees engaged in both fire protections and law enforcement activities” state in part the following:
(a) Some public agencies have employees who engage in both fire protection and law enforcement activities, depending on the agency needs at the time. This dual assignment would not defeat . . . the . . . 7(k) exemption, provided that each of the activities performed meets the appropriate tests set forth in §§ 553.210 and 553.211. . .
(b) As specified in §553.230, the maximum hours standards under section 7(k) are different for employees engaged in fire protection and for employees engaged in law enforcement. For those employees who perform both fire protection and law enforcement activities, the applicable standard is the one which applies to the activity in which the employee spends the majority of work time during the work period. (Emphasis Added.)
Fire Investigators Claim
Here, the Wichita fire investigators claim they engage in law enforcement activities during their work periods. They investigate fires as opposed to extinguishing fires. Therefore, the investigators should receive overtime similar to law enforcement officers, not firefighters. Lawyers representing the fire investigators claim the city knowingly violated the FLSA and are seeking liquidated damages, costs, expenses, and attorneys’ fees in addition to the unpaid overtime for each investigator.
A copy of the complaint is below.