Part-Time Firefighters, Paid Time Off, Overtime, and the FLSA

Today’s FLSA Question: I have been a part-time firefighter working for a small non-union municipal fire department for more than 5 years. My department augments full-time staff with part-timers, like myself. Historically, working as a part-time firefighter was the best way to get a job as a full-time firefighter. Up until recently, the department’s part-time firefighters were limited to a maximum of 24 hours per week. However, for the past year and one-half, the department has suspended that rule. “Part-timers” are consistently working 48 hours or more every week. I worked 96 hours last week and 72 hours the week before that. We get overtime if we work more than 212 hours in 28 days, however we do not receive any paid sick leave, vacation time, or other benefits full-time firefighters receive. Doesn’t the FLSA require vacation and sick leave for firefighters working on average of more than 40 hours per week?

Answer: This is a common question. In fact, your situation is not unique. Benefit costs associated with full-time employees have increased dramatically over the past twenty-plus years. As a result, many employers are using part-time and per-diem employees to avoid these costs.

Unfortunately, for you and the other part-time firefighters, the FLSA does not require employers provide employees with any paid sick or vacation leave. In fact, the U.S. is one of the few industrialized countries in the world that has no federal mandate requiring employers provide employees with some form of paid leave. The Family Medical Leave Act (FMLA), which is probably the most well-known federal law in this area, does require most employers provide leave to employees under certain limited circumstances. However, there is no requirement that FMLA leave be paid. The harsh reality is that under the FLSA, an employer only needs to pay employees the federally prescribed minimum wage and overtime when required.

Despite these facts, you may have another avenue to pursue some form of paid leave. Have you looked at your local and state laws? There is a good possibility that your state or municipality may require some form of paid sick leave. At my last check, there were 17 states that required employers provide some form of paid sick leave for employees. Unfortunately, some of these states, including my home state of Rhode Island have exempted public agency employers from these requirements, however it is worth a closer look.

Also, you may want to review your city’s policies. Don’t limit yourself to only the fire department’s policies. You may find relevant information in the city’s policies and procedures. The prospect of a part-time employee working an average of more than 40 hours per week may seem commonplace for you and your organization at this time, however, in my opinion it is rather extreme.

Finally, I would urge you to reach out to a local attorney that deals with wage and hour issues. A local attorney will have knowledge of these local issues and be able to point you in the right direction.