“Banking” Kelly Days and the FLSA

Today’s FLSA Question: Our firefighters work a 24/48 schedule on a 28-day work period. This combination results in firefighters scheduled to work either 9 or 10 twenty-four hour shifts every work period. In an effort to reduce FLSA overtime, the department provides the firefighters scheduled to work 10 shifts in the 28-day work period a Kelly Day. This equates to each firefighter receiving one Kelly Day (24 hours off) every 3rd work period. This limits the maximum amount of FLSA overtime due to all firefighters (for scheduled work shifts) to 4 hours every 28-day work period. Several firefighters have requested the option of “banking” their assigned Kelly Day so it can be utilized at some other time in the future. Firefighters that choose to “bank” their Kelly Day will forgo a day off that work period and instead take a day off in a future work period. Does the FLSA permit firefighters to “bank” Kelly Days?

Answer: Neither the FLSA nor Department of Labor (DOL) regulations address whether a Kelly Day can be banked. In fact, you will not find any reference to a “Kelly Day” in the FLSA or DOL regulations. That is because the concept of a “Kelly Day” did not originate in the FLSA.

According to the Chicago Firefighters, IAFF Local 2, the Kelly Day concept originated in 1936 (two years before the FLSA was enacted), with the one-time Mayor of Chicago, Edward Kelly. Mayor Kelly provided Chicago’s bravest with one day off for every seven days on duty. This had the effect of reducing the average workweek for Chicago firefighters from 84 to 72 hours. While the fire service has changed drastically throughout the past 80 plus years, the concept of a scheduled day off for firefighters— referred to as a Kelly Day—continues to this day, albeit for a slightly different reason.

In today’s—post FLSA—fire service, a properly scheduled Kelly Day has the effect of reducing or even eliminating the need to pay firefighters any FLSA overtime for scheduled work shifts. However, the only way a Kelly Day works in producing this desired effect is by reducing hours worked in the work period.

Let’s use your example to help clarify. Overtime eligible firefighters that work all 10 shifts in a 28-day work period must receive either overtime pay or FLSA compensatory time for all hours worked over 212 in that work period. If a firefighter utilizes a Kelly Day during that work period and reduces his or her actual hours worked to 216, then FLSA overtime liability is decreased to only 4 hours. If the firefighter does not utilize the Kelly Day, he or she is physically working 240 hours in that work period. All hours worked must be counted towards overtime eligibility. The only way the fire department can avoid paying that firefighter 28 hours of FLSA overtime for the work period, is by utilizing FLSA compensatory time.

Each work period must stand alone. When calculating maximum hours for overtime purposes all hours worked must be counted. While allowing firefighters the opportunity to bank or carry Kelly Day hours from one work period to another may seem attractive to both management and employees, it would almost certainly result in an FLSA violation.

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