Firefighters, Two Rates of Pay, and the FLSA

Today’s FLSA Question: I am the payroll/HR manager for a fire department. Our department offers first aid and CPR classes for residents of the community. We offer the classes a couple of times per year. Firefighters that are certified CPR and first aid instructors teach the classes during off-duty hours. However, since most of the firefighters make different hourly rates, budgeting for the class can be a challenge. I proposed paying firefighters teaching the class a flat rate of $25 per hour while teaching. Most firefighters earn slightly less than $25 per hour, while most officers earn slightly more… I think this is a fair compromise and an easier way to budget costs associated with providing this valuable training to the community. The fire chief is concerned that my plan could violate the FLSA. Does the FLSA allow a fire department pay firefighters two different rates of pay like this?

Answer: There is nothing in the FLSA that prohibits an employer [fire department] from paying employees [firefighters] different rates of pay for performing different types of work.

However, paying firefighters two different rates of pay for different types of work—during the same work period—will most likely affect the firefighters’ regular rate. This would most likely be a concern for you when firefighters are teaching the classes during the same work periods they are entitled to FLSA overtime. These firefighters will most likely have a different regular rate and overtime rate when this occurs. Luckily, the FLSA and Department of Labor regulations can help us figure this one out.

Department of Labor (DOL) regulations found at §778.115 entitled Employees working at two of more rates details one method for calculating the regular rate in these types of situations. Here is the relevant text from that regulation:

  • Where an employee in a single workweek works at two or more different types of work for which different nonovertime rates of pay (of not less than the applicable minimum wage) have been established, his regular rate for that week is the weighted average of such rates.
  • That is, his total earnings (except statutory exclusions) are computed to include his compensation during the workweek from all such rates, and are then divided by the total number of hours worked at all jobs.

This method of determining the regular rate is often referred to as the weighted average or blended regular rate calculation. Here is an example to help clarify:

Firefighter A works all of his or her assigned shifts for the work period and is entitled to four hours of FLSA overtime. In addition, he or she worked eight hours performing CPR and first aid training. This combination entitles firefighter A to twelve hours of FLSA overtime. As a general rule, the fire department would use the total pay earned (compensation) during the work period and divide that by the total hours worked in the work period (including CPR and First Aid Training). This would provide the correct regular rate for the employee for the work period.

There is also a second (less popular) method of calculating an employee’s regular rate under the scenario that you describe. This can be found in section 7(g)(2) of the FLSA and corresponding DOL regulations. There are several requirements necessary to utilize this unique provision of the FLSA and regulations.

First, similar to the blended or weighted average, the firefighter must perform two or more types of work—paid at different hourly rates—in the same work period. Next, the employer and employee can agree to utilize the hourly rate earned during overtime hours as the regular rate for FLSA overtime purposes.

While at first glance this second method of calculating the regular rate may seem much easier to administer, there is a catch. Employers must insure they are paying overtime based on the hourly rate for the type of work the employee is performing during overtime hours. This can result in paying firefighters a significantly lower overtime rate under some circumstances. However, it can also result in paying firefighters a much higher overtime rate as well. It all depends on the specific circumstances.

If you have similar questions about the FLSA and its applicability to emergency service workers (like firefighters), please consider joining us at one of our upcoming FLSA for Fire Departments seminars.

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