Today’s FLSA Question: I am the fire chief of a small paid fire department with a mixture of full-time and part-time firefighters. Our full-time firefighters work a 24/48 schedule for an average of 56 hours per week. The Town Council hired a new town manager last year. He is highly critical of our overtime budget. He has proven relentless in his pursuit to eliminate all overtime. He recently discovered, what I refer to as, a loop-hole in the FLSA. This loop-hole allows fire departments deduct hours a firefighter spends sleeping at the station from hours worked for overtime purposes. In theory, this could end overtime pay for our firefighters. What are some of the pit-falls and advantages of utilizing this FLSA loop-hole?
Answer: Good question. Unfortunately, not an easy one to answer, however I will give it a shot. In a nut-shell, sleep time deductions can prove beneficial for fire departments looking to curb overtime spending provided the department follows very strict criteria. As usual, the devil lies in the details.
While I understand that you may not be crazy about this idea; sleep time deductions are not “loop-holes” in the FLSA. In fact, there is no mention of the sleep time deduction within the FLSA. Instead Department of Labor (DOL) regulations related to the FLSA list all the requirements employers must follow in order to utilize this highly unique deduction.
As a general rule, all the time an employee spends working for or on behalf of their employer must be paid. Additionally, most employees are eligible for FLSA overtime for all hours worked over the maximum hours in each work period. Most firefighters are eligible for FLSA overtime after they work 53 hours in a seven-day work period, or 212 hours in a twenty-eight-day work period. However, like most general rules, there are exceptions. One such exception is the sleep time deduction. The sleep time deduction allows employers, like fire departments, to deduct some of the hours a firefighter spends sleeping from his or her hours worked.
Let’s look at some of the basic requirements of the sleep time deduction for firefighters.
There must be an express or implied agreement between employer/employee in order to utilize the sleep time deduction. No agreement; no sleep time deduction. Different courts have interpreted this provision differently, however individual firefighters objecting to the sleep time deduction will likely invalidate its use by a fire department. Additionally, if your firefighters are represented by a union, you will most likely need to negotiate any sleep time deduction prior to implementation.
Uninterrupted Night’s Sleep & 8-Hour Maximum Deduction
In order to utilize the sleep time deduction employees must usually enjoy an uninterrupted night’s sleep and any disruptions, or what the DOL refers to as “calls to duty,” must be counted as hours worked. There is very little guidance as to what constitutes a “call to duty.” Certainly, emergency fire and EMS calls would be considered calls to duty, but what about other common calls for service? For example, would a phone call from dispatch informing the company officer of a personnel change or road closure be considered a call to duty? How about a civilian ringing the station door-bell at 2 a.m. looking to use a phone because her car just broke down? These are all open questions that are open to interpretation.
Also, if a firefighter’s sleep is disrupted to a point where they cannot enjoy at least 5 hours of sleep, the entire deduction is lost for that particular shift. From a practical standpoint, this requirement can be extremely difficult to track, especially for larger departments with multiple stations. Shift commanders and other members of a fire department’s command staff have enough on their plate without having to track the number and extent of interruptions across multiple stations and companies on a nightly basis.
Department of Labor regulations only allow a maximum of 8 hours sleep time deducted for every 24 hours that a firefighter works. Theoretically, if a firefighter is able to enjoy a full night of uninterrupted sleep, the employer can deduct the maximum amount of 8 hours from his or her hours worked for the work period.
Additionally, there is nothing that prevents a fire department from deducting less than 8 hours if all other requirements are met. For example, a firefighter receives one “call to duty” during the designated overnight sleep time hours. Despite this call, the firefighter is still able to sleep for 6 hours. The employer can still deduct 6 hours of sleep time for that firefighter.
Adequate Sleeping Facilities & 24-Hour+ Shifts
As a general rule, firefighters must be on-duty for more than 24 hours in order to deduct sleep time from hours worked. For example, most fire departments that utilize sleep time deductions require firefighters work an additional 10-20 minutes beyond the typical 24-hour shift.
Additionally, DOL regulations require employers provide adequate sleeping facilities for firefighters. Most fire department dormitories or bunk rooms would likely satisfy this requirement, however if these facilities are found to not be adequate, there can be no sleep time deduction.
ADVANCED SALARY ISSUE
Finally, on a very, very advanced level, sleep time deductions could potentially affect a firefighter’s regular rate of pay under specific circumstances. However, that type of advanced issue is far too involved for this type of article.
Back to your question, this has been a very simple overview of the ins-and-outs of sleep time and firefighters. Before you or the town manager even attempt to implement a sleep time deduction for your firefighters, you should consult with a local attorney that is familiar with both the FLSA and how it applies to firefighters. There is much more to consider on this topic.
If you have questions about sleep time and firefighters, please consider joining us at any of our upcoming FLSA for Fire Departments seminars.