The U.S. Department of Labor (DOL) has ordered the City of Gary, Indiana to pay 154 firefighters and 18 paramedics a total of $672,000 in back overtime wages. The order follows a DOL investigation into the city’s pay practices related to firefighter and medic pay. According to the DOL, the city failed to pay firefighters overtime for all hours worked in excess of 106 every 14-day work period. The DOL also found that the city incorrectly classified medics that “did not perform fire suppression work” as firefighters for FLSA overtime purposes.
The FLSA carves out a firefighter-only exception to the Act’s general overtime requirement of overtime pay for non-exempt workers for all hours worked in excess of forty every seven days. The FLSA’s §207k partial overtime exemption allows public agency employers adopt a work period of up to 28 days for employees engaged in fire protection activities [aka §207k firefighters]. In addition to extending the standard workweek from the default seven days to a work period of up to 28 days, the exemption also significantly increases the number of hours a firefighter can work before overtime pay is required.
Here, according to the DOL The City of Gary was not complying with the FLSA’s §207k exemption in two ways.
First, the FLSA requires overtime pay for all hours worked over the statutory maximum for the adopted work period. The FLSA doesn’t require that a fire department adopt a specific work period, in fact a work period can be any length between 7 and 28 days. However, once a department adopts a work period it must pay firefighters overtime for all hours worked in excess of the maximum hours’ requirement for that work period.
According to the DOL, the city adopted a 14-day work period. A 14-day work period requires firefighters receive overtime pay for all hours worked in excess of 106 every work period. Very often employers [and employees] mistakenly believe that hours worked can be averaged or smoothed between multiple work periods. This is a common FLSA misconception. Nothing could be further from the truth. The FLSA requires that each work period stand alone. Hours worked in one work period cannot be forwarded or credited against hours worked or not worked in future or previous work periods. Click here, for more on averaging hours worked across multiple work periods.
Second, the DOL also found that the City of Gary was using the FLSA’s §207k partial exemption to pay medics that “did not perform fire suppression work.” The §207k exemption only applies to employees engaged in fire suppression activities. As a general rule, firefighter/medics can be classified as employees engaged in fire suppression activities provided they meet the requirements set forth in the FLSA and DOL regulations. Click here for more on firefighter/medics assigned to EMS companies.
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Click here for the DOL Press Release.