Today’s FLSA Question: I am a city HR manager and recently attended one of the FLSA for Fire Departments seminars. We have a new city manager that is looking to curb overtime costs within our fire department. Specifically, he wants to dock firefighters pay for the time spent eating meals. I know the FLSA allows for this practice, however how would you recommend implementing such a plan?
Answer: You are correct. Common-sense and gut-instincts tell you that employers do not need to compensate employees for time spent on lunch breaks [or what the Department of Labor refer to as a bona-fide meal period]. However, deducting mealtime from a firefighter’s compensable hours—while possible—can prove tricky. Here are some considerations for you and your city manager.
First, the FLSA and Department of Labor (DOL) regulations draw a distinction between short rest periods and meal periods. Short rest periods—typically 10-20 minutes in length—are usually compensable. Bona-fide meal periods—a minimum of 30 minutes in length—do not necessarily need to be compensated, provided certain factors are met. There are three primary factors that must be satisfied in order to deduct mealtime from a firefighter’s hours worked:
- The firefighter must be completely relieved from duty during the meal period.
- As a general rule, the firefighter’s work shift must be greater than twenty-four hours.
- There must be an express or implied agreement between the parties to exclude the meal period from compensable hours.
Let’s start by examining DOL regulations found at §785.19 simply entitled Meal:
- Bona fide meal periods. Bona fide meal periods are not worktime. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating.
- Where no permission to leave premises. It is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during the meal period.
The first—and likely most difficult—hurdle you will face is how to get a firefighter completely relieved from duty during the course of his or her work shift. Does your organization have the staffing necessary to remove a firefighter or even firefighters from their assigned apparatus for 30, 60 even 90 minutes per shift? Most departments do not have the staffing necessary for such a move. But perhaps you do.
If you are wondering whether firefighters could remain on-call in the station during their meal periods and still satisfy the completely relieved requirement, here are two court decisions on the topic for you to consider.
In 1990, the U.S. Court of Appeals for the Eleventh District upheld a lower court decision that found firefighters that were required to respond to alarms during their meal periods were not completely relieved and thus had to be paid for mealtime. See Kohlheim v. Glynn County, GA.,915 F.2d 1473 (11th Cir. 1990). Similarly, a federal court in South Carolina also found a fire department unlawfully deducted mealtime from firefighters even though they were excused from answering the phone and dispatching apparatus during their mealtime but still required to respond to emergency calls. See Rotondo et. al. v. City of Georgetown, SC 869 F. Supp. 369 (D.S.C. 1994).
The second requirement necessary in order to deduct meal periods from compensable hours is only applicable to firefighters. Department of Labor regulations prohibit fire departments from deducting meal periods from a firefighter’s compensable hours if they work shifts of 24 hours or less. Fire departments that utilize a 24-hour [or less] work shift cannot deduct mealtime from their firefighters’ compensable hours. If your firefighters are already working 24 hour-plus shifts than this factor will not present a problem.
There is one narrow exception to the DOL’s length of shift requirement. Public agency fire departments that do not claim the §207(k) partial overtime exemption for employees engaged in fire protection activities—i.e pay overtime to firefighters after they work forty hours every week—can deduct meal time regardless of the length of the firefighters’ shift. However, this is a very narrow exception only applicable to a small percentage of firefighters and most likely will not affect your situation.
Finally, the fire department and firefighters must have an “express or implied agreement” to deduct meal periods from hours worked. This could present a challenge for the fire department depending on local collective bargaining laws. Undoubtedly, firefighters in certain regions of the country would have a right to collectively bargain over this type of deduction, while firefighters in other jurisdictions may not have such a right. While not an FLSA issue, it is one that is worth considering before you make such a move.
Needless to say, deducting mealtime from firefighters can prove tricky. The compensability of mealtime, sleep time, and break time are discussed in-depth at all of our upcoming FLSA for Fire Departments seminars. If you have FLSA questions like this one, please consider joining us.