Today’s FLSA Question: I recently read your article entitled “Firefighters, Mandatory Overtime, and the FLSA” and have a somewhat related follow-up question. I work for a large county fire department. We also work a 24/48 schedule with a scheduled Kelly-day every three weeks for a 48-hour average workweek. However, we receive overtime for all additional hours worked outside of our normal work schedule, unless we use any sick time in the work period. For example, if a firefighter calls out sick for a 24-hour shift in the first week of the work period and then works an extra 24-hour shift later in the same work period, that extra shift is paid at straight time. Based on your article, I understand that this practice is allowable under the FLSA. However, our collective bargaining agreement allows a firefighter to choose between straight pay or “no-pay” for that extra shift. The firefighter works that extra 24 hours for “free,” but is not charged any sick leave from his or her sick bank. The firefighter still receives his or her regular salary for the week. Does the FLSA allow this type of agreement?
Answer: Good question. The FLSA doesn’t per se forbid this type of policy provided all federally required overtime is paid. When you boil-it down to the basics, the FLSA only requires that overtime is paid for all hours worked over the statutory maximum for the chosen work period. A collective bargaining agreement, departmental policy, or even a state law can require overtime pay outside of the FLSA’s basic hours worked requirement, however under the FLSA, overtime eligibility is a result of the hours actually worked in the adopted work period.
For example, a fire department that has adopted a 21-day work period is required to pay firefighters FLSA overtime [or provide FLSA comp time] for all hours worked in excess of 159 every 21 days. Based on the facts that you provided, firefighters that work their assigned shifts are well-below the FLSA’s maximum hours threshold for a 21-day work period. The extra shift worked is not really for “free.” It appears that your fire department offers employees an opportunity to substitute the additional 24-hour shift worked in lieu of receiving 24 hours of paid sick leave. This would not create any FLSA issues on its face.
It is important to remember, the FLSA doesn’t always require overtime pay for all hours worked above and beyond a firefighter’s normal work schedule. Very often a collective bargaining agreement or city policy requires any additional hours worked above the normal work schedule be paid at an overtime rate, however the FLSA does not.