Today’s FLSA Question: I am a city HR manager. I am updating the city’s employment handbook. We are instituting a citywide time tracking and accountability system. Part of the system prohibits employees from working before their assigned shifts. The fire chief just informed me that firefighters arrive as much as one hour before their assigned shifts. The chief assured me that this is a common practice and does not violate the FLSA. This is clearly not allowed in other professions. . . How can firefighters work this time without compensation? Is there some special “firefighter-only” rule that I am missing?
Answer: First, you are correct. The FLSA generally requires that employees be paid for all the time they are working. It would seem allowing an employee to begin work without getting paid flies-in-the-face of one of the bedrock principles of the FLSA. However, there is a special firefighter-only exception within the Department of Labor (DOL) regulations that allow this practice under certain circumstances. But to determine whether the firefighters in your city qualify for this exception will require a little more information.
This unique firefighter-only exception is entitled “Early Relief” and can be found at 29 CFR §553.225. Here is the entire text of the regulation:
It is a common practice among employees engaged in fire protection activities to relieve employees on the previous shift prior to the scheduled starting time. Such early relief time may occur pursuant to employee agreement, either expressed or implied. This practice will not have the effect of increasing the number of compensable hours of work for employees employed under section 7(k) where it is voluntary on the part of the employees and does not result, over a period of time, in their failure to receive proper compensation for all hours actually worked. On the other hand, if the practice is required by the employer, the time involved must be added to the employee’s tour of duty and treated as compensable hours of work.
Can your city’s firefighters qualify for the early relief exception? As the HR manager; you will have to determine the following:
- Does your fire department claim the 207k partial overtime exemption for employees engaged in fire protection activities?
- Is there an express or implied agreement for firefighters to relieve each other prior to the scheduled start time of the shift?
- Is this practice voluntary?
- Over a period of time, have firefighters received “proper compensation for all hours actually worked? (This assumes that firefighters who arrive early will generally receive early reliefs as well. My experience has shown me firsthand that firefighters quickly realize which firefighters are “good” reliefs and which are not.)
If you answered “yes” to all these questions, your firefighters will qualify for the early relief exception. Special rules like this one are the reason the FLSA for Fire Departments seminar is a three-day class!