Today’s FLSA Question: I am the chief of a midsize, full-time fire department. Our overtime budget is constantly the source of contention and scrutiny by town administrators, elected officials, and the public. Our line firefighters average 42 hours per week on 4 platoons. We use a 14-day work period and pay overtime for all hours worked in addition to the firefighters’ scheduled hours. Several administrative staff positions within the department are filled on a part-time basis by line firefighters and officers. These positions include: EMS coordinator, fire training officer, HAZMAT officer, communications, and IT directors. While firefighters frequently perform administrative functions while on shift, they are often required to work on their days off as well. Currently, we pay overtime for those hours. However, in an effort to fend off the overtime hawks at town hall, firefighters are willing to perform these administrative functions for straight pay. I know the FLSA will require overtime at some point, but some of these hours can be paid at straight time, right?
Chief, you are correct. There is no per se FLSA requirement to pay overtime for additional hours firefighters work performing administrative duties. The FLSA requires overtime only for hours worked over the statutory maximum for the workweek or work period. For the vast majority of overtime-eligible employees, that translates into overtime after working 40 hours in a 7-day workweek. But there are some unique aspects of the FLSA as it relates to firefighters that may help you keep those overtime hawks at bay.
As you are aware, when a fire department utilizes the §207(k) partial overtime exemption for firefighters, it can expand the traditional workweek to a “work period,” and it is not bound by the traditional 40-hours-per-week overtime standard for overtime-eligible employees. Here, it appears your fire department has adopted the §207(k) partial exemption. According to your information, the department utilizes a 14-day work period. Therefore, under the FLSA the department is only required to pay FLSA overtime for hours worked by firefighters over 106 every 14 days. A department can exceed those requirements by paying additional overtime, but the federal law does not require it.
When firefighters are only scheduled to work an average of 42 hours per week, they can still work a significant number of additional hours before being eligible for FLSA overtime. Depending upon the rotating nature of the firefighters’ schedule, there may be times when some firefighters are scheduled to work only 72 hours in a 14-day work period. Remember, the FLSA requires overtime only after the firefighter works 106 hours in a 14-day work period. Provided the firefighter works his or her scheduled shifts, the firefighter could work 34 additional hours before FLSA overtime is required for that work period.
There are a couple of considerations before even considering this option. It is imperative that the fire department track all hours worked by firefighters to ensure overtime is paid for all hours worked over 106 every 14 days. This requires tracking hours worked by firefighters in both line and administrative positions. Additionally, if a firefighter uses vacation or sick leave during the work period, those leave hours do not need to be included in the calculation to determine FLSA overtime eligibility. Only the hours the firefighter works need to be counted.
Finally, if there is a collective bargaining agreement in place between the town and the firefighters’ union, this change would most likely need to be negotiated. But that is not an FLSA issue. Either way, it would be wise to bring in your local counsel to work out all the details.