Today’s Advanced FLSA Question: What are the potential wage and hour concerns associated with sending non-exempt firefighters out of state to spec and/or inspect new fire apparatus?
Answer: Good question. Believe it or not, this is a very advanced question. Allowing overtime eligible employees [like firefighters] to engage in work-related travel without considering the potential wage and hour implications is a recipe for disaster. Hopefully, folks that have attended the FLSA for Fire Departments seminar or webinar series read this question and immediately recognized some of the wage and hour issues associated with firefighters engaging in work related travel as described in this question. There are numerous potential wage and hour concerns associated with any overtime eligible employee engaging in work-related travel. This is especially true for firefighters, given our unique work schedules. Coincidently, these concerns are not simply limited to apparatus purchases. The same basic principles will apply to training, deployments, and many other work-related activities that require travel. Fortunately, wage and hour issues associated with work-related travel can be managed with a bit of education and pre-planning.
A recent headline out of Vermont highlights the need for fire departments to be prepared for issues that will likely arise when sending firefighters out of state for apparatus pre-build or final inspections. According to the Barre Montpelier Times, the Barre, Vermont Fire Department sent two firefighters to a St. Louis ambulance manufacturer to attend a pre-build meeting for a new ambulance for the department. These firefighters normally work 24-hour shifts, followed by 72 hours off duty. The firefighters were both scheduled to work one 24-hour shift during the two-day trip to Missouri. The firefighters left their homes enroute to the airport between 2 and 2:30 am the morning before their 24-hour shift began. The firefighters were paid overtime from that time until 7 am, when their normal 24-hour shift began. They were then paid straight time during the time spent that day at the factory, since it was their normal workday. The firefighters returned to their hotel that evening. This is where the debate begins.
The firefighters and their union contend that they should be paid for the entire 24-hour shift, since this is their normal work shift. Once that shift ends at 7:00 am the following morning, the firefighters should receive overtime pay for all the time spent visiting the factory and travelling back to Vermont later that day. The fire chief and city administration contend that once the firefighters returned to the hotel after spending the day at the factory, they were no longer “on-duty.” The chief and city administration do not believe the firefighters should be paid for the time spent after visiting the factory during the first day of the trip. Following the administration’s logic, the firefighters would therefore only receive straight time pay for the majority of time spent at the factory during the second day and the subsequent trip back to Vermont that afternoon/evening. The union has filed a grievance which the city has denied, and the debate has made its way to the local newspaper. For more information, click here.
Now, the debate [so far] in Barre seems to be limited to whether the firefighter’s collective bargaining agreement requires compensation for the time spent by the firefighters at the hotel after spending the day at the ambulance factory. However, these facts illustrate how complex and quite honestly tedious determining the compensability of work-related travel can be for overtime eligible employees. In fact, many attorneys that represent businesses and municipalities recommend prohibiting overtime eligible employees from being allowed to travel for work purposes.
The FLSA requires that work-related travel is compensated. Department of Labor (DOL) regulations and opinions differentiate between local travel, travel that involves going to another city and returning the same day, and overnight travel. Additionally, many states have instituted regulations that enhance the FLSA’s travel pay requirements. Finally, collective bargaining agreements and/or city policies also add to the complexity of determining the compensability of travel time.
Here is the DOL’s regulation related to overnight travel:
§ 785.39 Travel away from home community.
Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across the employee’s workday. The employee is simply substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on nonworking days. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday the travel time during these hours is worktime on Saturday and Sunday as well as on the other days. Regular meal period time is not counted. As an enforcement policy the Divisions will not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.
While this regulation is somewhat helpful, it also raises many other questions. Most notably, what is a firefighter’s “regular” workday and “normal” work hours? What happens when travel is delayed due to weather or other reasons?
The answer is not to eliminate work related travel. The answer is to manage the challenges that work-related travel imposes on an organization. This involves understanding the FLSA, DOL regulations, state laws, and even collective bargaining requirements related to the compensability of travel time. Additionally, develop policies that are compliant with the law and any applicable collective bargaining agreements. These policies provide the framework that manage expectations for both administration and the rank-and-file firefighters. Most importantly, it is imperative this preparation is performed before sending the personnel down the road or off to the airport on their mission.