Advanced Question on Firefighter Substitutions, Overtime, and the FLSA

Today’s FLSA Question: I am the union president for a mid-sized full-time fire department. Our contract allows substitutions provided the shift commander is aware of the substitution before the start of the shift. Recently, there have been several instances where firefighters working substitutions caught late runs that required them to work past the end of the shift. Normally, firefighters submit an overtime request via our on-line payroll system. However, our city’s payroll department will not approve any additional pay to firefighters working as substitutions, even for late runs. Additionally, payroll will not authorize pay for the firefighter that is utilizing the substitution. So basically, nobody gets paid for this time. The city’s finance director believes the FLSA forbids paying any wages to substituting firefighters. Is this true? Someone must get paid for this time, right?

Answer: The FLSA does not per se forbid paying any wages to substituting firefighters. Your question touches on one of the most common [for firefighters], yet often misunderstood [by everyone else] provisions of both the FLSA and Department of Labor (DOL) regulations.

The FLSA contains a very unique provision found at Section 207(p)(3) that allows two public agency employees [in this case firefighters] to substitute for one another during scheduled work hours. The additional hours worked by the substitute do not count towards overtime eligibility for that employee. Additionally, the hours not worked by the scheduled employee count towards overtime eligibility for that employee. Basically, each employee is “credited as if he or she had worked his or her normal work schedule for that shift.” While this may seem counter-intuitive at first, it is actually one of many very common public agency only provisions found in both the FLSA and DOL regulations. For more on the ins-and-outs of firefighter substitutions, including requirements necessary to utilize this exception, click here.

A key aspect of the FLSA’s shift substitution provisions is that it allows individual firefighters the freedom to voluntarily work shifts for each other while limiting overtime costs for their employers. By crediting each firefighter for the shift in which he or she was scheduled, overtime costs are limited to the amount the employer would pay absent the substitution. This makes sense. If the FLSA required employers to count all hours worked, even hours worked as a substitute towards overtime eligibility, firefighters could easily manipulate the department’s overtime costs.

Now back to your question. Which firefighter gets credit for working additional time beyond his or her assigned shift when working/receiving a substitution? I agree with you that somebody should get paid. Luckily, I don’t believe we are alone in this belief.

The basic requirements of the FLSA mandate overtime eligible employees be paid for all hours suffered or permitted to work, absent an exception. One such exception relates to firefighters substituting work shifts with each other. However, the plain language of the regulation allows substitutions for “scheduled work hours.” If a firefighter is required to remain at work beyond his or her normal work shift, would this additional work time meet the requirements of the substitution exception? I would argue that the substitution exception is no longer applicable and that the general underlying principles of the FLSA should apply.

Now, just to be clear. I am unaware of any authority [i.e. court case, DOL opinion letter, or other] that addresses your exact question. My answer is somewhat a “theory” at this point. However, it is a theory that is supported by the clear language found in both the FLSA and DOL regulations. I highly recommend that you sit down with your chief, human resource and/or finance folks, and legal counsel to come up with a reasonable solution. In my opinion the best option would be to pay the firefighter that is actually working for the time that overlaps between work shifts. In the event the department wants to continue the practice of refusing to pay either firefighter for the overlapping time, please keep me posted. I am always looking for an interesting headline for the blog.

Also, thank you for asking a really good question that got me thinking.

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