Waiting Four Weeks for Overtime

Today’s FLSA Question: I work for a municipal fire department. Everybody that works for the city [including the fire department] is paid on a weekly basis. However, firefighters do not receive overtime pay on a weekly basis. The firefighters overtime pay is included in every fourth paycheck. Why do firefighters have to wait? By the way, other city employees don’t have to wait for overtime. For example, the dispatchers receive their overtime every week. Doesn’t the FLSA require employees get paid for all overtime worked every week?

Answer: You are correct. The FLSA requires that non-exempt employees [like most firefighters] be paid for all hours worked every workweek. Additionally, as a general rule, the FLSA requires overtime pay for all hours worked by non-exempt employees that are over the statutory maximum every workweek. However, before you fire off that email to your chief demanding payment for all the overtime hours you worked last week, there is a catch when it comes to paying firefighters.

The FLSA contains a unique provision that is only applicable to firefighters and law enforcement personnel that allows public agency employers—like your fire department—avoid some of these general rules related to FLSA overtime. The FLSA’s §207(k) partial overtime exemption allows public agency employers to utilize a work period in lieu of the traditional workweek as the standard for determining if and how much FLSA overtime is due to employees. Let’s compare a workweek to a work period.

Department of Labor (DOL) regulations define a workweek as a “fixed and regularly recurring period of 168 hours,” which translates into 24 hours per day for seven consecutive days. That is the traditional workweek. Generally, dispatchers and other civilian public safety personnel are entitled to FLSA overtime for all hours worked over forty every seven-day workweek.

A work period is somewhat similar to a workweek since it is also a regularly reoccurring period of work, however it is not necessarily fixed at only 7 days. In fact, a work period can be any length between 7 and 28 days. Here are DOL regulations found at 29 CFR §553.224 entitled “Work Period” defined:

(a) As used in section 7(k), the term “work period” refers to any established and regularly recurring period of work which, under the terms of the Act and legislative history, cannot be less than 7 consecutive days nor more than 28 consecutive days. Except for this limitation, the work period can be of any length, and it need not coincide with the duty cycle or pay period or with a particular day of the week or hour of the day. Once the beginning and ending time of an employee’s work period is established, however, it remains fixed regardless of how many hours are worked within the period. The beginning and ending of the work period may be changed, provided that the change is intended to be permanent and is not designed to evade the overtime compensation requirements of the Act.

(b) An employer may have one work period applicable to all employees, or different work periods for different employees or groups of employees.

Here is where it gets a little complicated. Public agency fire departments that elect to utilize the FLSA’s §207(k) partial overtime exemption are only required to pay FLSA overtime to firefighters that work over the statutory maximum hours for the chosen work period. Here are a couple of simple examples to help clarify:

• FD A elects to use a 14-day work period. The statutory maximum hours for a 14-day work period is 106. Therefore, the FLSA requires firefighters be paid overtime for all hours worked over 106 in the 14-day work period.
• FD B elects to use a 21-day work period. The statutory maximum hours for a 21-day work period is 159. Therefore, the FLSA requires firefighters be paid overtime for all hours worked over 159 in the 21-day work period.
• FD C elects to use a 28-day work period. The statutory maximum hours for a 28-day work period is 212. Therefore, the FLSA requires firefighters be paid overtime for all hours worked over 212 in the 28-day work period.

In theory, how can any of the above hypothetical fire departments accurately pay firefighters any FLSA overtime that may be required if the department pays employees on a weekly basis. Notice that the regulations defining work period specifically state that a work period does not need to coincide with the pay period. In other words, the pay period is completely independent of the work period. A fire department can elect to utilize a 7-day work period or a 14-day work period and pay firefighters weekly or bi-weekly, however there is no requirement to do either.

The regulations anticipate that there could be instances where an employee is owed overtime that cannot be paid on a weekly basis. That regulation can be found at 29 CFR §778.106 and is aptly entitled Time of payment:

There is no requirement in the Act that overtime compensation be paid weekly. The general rule is that overtime compensation earned in a particular workweek must be paid on the regular pay day for the period in which such workweek ends. When the correct amount of overtime compensation cannot be determined until some time after the regular pay period, however, the requirements of the Act will be satisfied if the employer pays the excess overtime compensation as soon after the regular pay period as is practicable. Payment may not be delayed for a period longer than is reasonably necessary for the employer to compute and arrange for payment of the amount due and in no event may payment be delayed beyond the next payday after such computation can be made. Where retroactive wage increases are made, retroactive overtime compensation is due at the time the increase is paid, as discussed in § 778.303. For a discussion of overtime payments due because of increases by way of bonuses, see § 778.209.

It is common practice in the fire service to pay FLSA overtime in the regular payday that follows the end of the elected work period. If your fire department has adopted a 28-day work period, it is not possible to determine the amount of FLSA overtime that you and other firefighters are entitled to until that 28-day period has completely ended. Therefore, it makes sense that overtime is paid every 28 days, or every fourth paycheck. While it may seem unfair, it is very much allowed under the FLSA. There could be state laws, collective bargaining agreements, or city policies that impact the time of payment for any overtime, however in this circumstance, the city is most likely operating within the requirements of the FLSA.