Question: I recently accepted a position as a fire chief for a small department. I just retired as a battalion chief from a larger neighboring department. My new department considers my position as overtime exempt. I know I will be working well over 40 hours per week. During the interview process I was assured I could accrue comp time, since I will not have any accrued vacation time with my new department. But now the director of human resources at city hall refuses to allow me to accrue comp time, since I am an overtime exempt employee. I have two questions:
- Does the FLSA allow exempt executives to accrue comp time?
And, if yes;
- Will that provide me with some recourse if the city fails to provide me with the comp time I have been promised?
Answer: Before you do anything else, contact an employment attorney in your jurisdiction. These questions raise multiple issues that range from the FLSA, state wage and hour laws, and state contract laws. These types of questions need to be answered by a local attorney familiar with both the FLSA and state law. However, your questions do raise some interesting points.
The simple answer to the first question is yes, and the second, is not necessarily…
The FLSA provides a complete overtime and minimum wage exemption for bona fide executive employees. Whether you can be properly classified as an overtime exempt executive requires a detailed analysis of the duties you perform and the amount and way you are paid. Most fire chiefs can be properly classified as exempt executives. For the sake of this post, we will agree that you are an exempt executive.
Since the FLSA does not require exempt executives receive any overtime, there is also no FLSA requirement for your employer to offer comp time in lieu of overtime. However, there is nothing within the FLSA that prohibits employers from providing paid time off to overtime exempt employees. Whether this paid time off is the result of vacation, personal days, sick leave, or as a result of working additional hours beyond the normal 40-hour workweek is immaterial.
It is important to remember, the FLSA provides the bare minimum regarding wage and hour law. State laws, local ordinances, collective bargaining, and even individual employment contracts provide greater benefits for workers than required by the FLSA. This leads us to your second question.
Since the FLSA does not require exempt executives receive any overtime, any potential legal right you may have regarding this paid time off would not be rooted in the FLSA. Most likely, any legal right to this paid time off would be the result of a contract or a promise between yourself and your employer. Sometimes these promises can take the form of employee handbooks, city personnel policies, and employment contracts. Unless this agreement is memorialized in some way, it may prove very difficult to legally enforce.
A few months ago, a Louisiana fire chief found himself in a similar situation. Retired Chief Dennis Ford lost his bid to receive over $500,000 in unpaid post-employment benefits, including 4,600 hours of accrued comp time from his former employer the Lincoln Parish Fire Protection District, No. 1. The lawsuit, which was filed in Louisiana state court on September 8, 2014, sought almost $400,000 in unpaid comp time, and other retirement related benefits.
Among other facts, Chief Ford alleged at least one district official had verbally promised him comp time, in lieu of overtime, when he was hired as fire chief in 2003. In evaluating Ford’s comp time claim the court examined two factors:
- Was Chief Ford eligible for FLSA overtime and/or comp time under the FLSA.
- Was Chief Ford entitled to comp time under the promise or expectation provided by district officials when he was hired?
The court rather quickly concluded that Chief Ford was not per se entitled to comp time under the FLSA, because he was an overtime exempt fire chief. Since Chief Ford was not eligible for FLSA overtime, he in-turn could not be eligible for FLSA comp time.
Next, the court looked to the possible existence of an agreement between Chief Ford and the fire district regarding comp time. While there was no written agreement regarding comp time, the Chairman of the Board of Fire Commissioners for the Lincoln Parish Fire Protection District, Tom Thompson, testified that he told Chief Ford that he would be eligible for comp time, when he offered Chief Ford the position in 2003. The court also heard testimony from other current and past district employees. Some employees indicated chiefs were not eligible for comp time, while others indicated comp time was permitted, however it was limited to a cap of 48 hours.
In the end the court sided with the district. The court found that even if the former chairman of the fire commissioners board offered Chief Ford comp time, the “individual actions of members of governing bodies are not binding on the governmental body.” Basically, Chief Ford’s employer was not Mr. Thompson, it was the district and the district never agreed to comp time. The court also found that Ford, as fire chief, was free to set his own schedule and was free to take time off when needed.
Back to your question… Chief, you need to find yourself a good employment attorney in your state and get any agreement for paid time off in lieu of overtime pay in writing.
BTW, time is running out to save money for the upcoming FLSA for Fire Departments Atlanta / Covington, GA seminar. Register by November 1st and save $100! For more info click here.
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Here is a copy of Ford v. Lincoln Parish FLSA