Fire Department Grant Committees, Off-the-Clock Work, and the FLSA

Today’s FLSA Question: I work as a full-time fire lieutenant for a combination fire department. Our full-time firefighters and officers work a 24/48 schedule. We also have a small group of volunteer firefighters that assist at larger incidents. I am on my department’s grant committee. The committee consists of myself, the Fire Marshal, and the Assistant Chief. I am the only member of the grant committee that works a 24-hour work shift. The other two members work a 40-hour, Monday thru Friday type schedule. I try to work on the necessary data collection and grant narratives while on-duty, however that doesn’t always work out with trainings, runs, and the usual day-to-day work. As a result, I estimate that I spent more than 30 “off-duty” hours over the past several months working on different grant proposals. I recently requested to be paid for those hours, or in the alternative get a day off in the future. But my Assistant Chief denied my request. He stated that operating on the grant committee was voluntary assignment and that there was no way to compensate me for that time. This does not seem right to me. I was working on the proposals with the Assistant Chief for numerous hours while off-duty. He obviously knew that I was working on the proposals. Doesn’t the FLSA require that I get paid for this time?

Answer: Based upon the facts that you provided, the time you spent working on the grant proposal(s) is compensable worktime. The FLSA requires that employees be paid for all hours they “suffer or are permitted to work”. That strange “suffer or permitted” language has been interpreted to require an employer pay an employee for worktime that wasn’t required or even requested but was merely “permitted.”

One of the most common examples of an employee that is suffered or permitted to work involves an employee that is working on a big project during his or her scheduled work shift. The employee stays past the end of the work shift, or even comes in on a normally scheduled day off to complete the project. According to the Department of Labor (DOL) this time is compensable. This makes sense and seems to resemble the scenario that you presented in your question.

As far as the Assistant Chief thinking this was a “voluntary” activity, the FLSA and DOL regulations and opinion generally prohibit an employee from volunteering their services to their employer, however there is a special carve-out for individuals that want to volunteer for public agencies. Individuals can volunteer their services to public agencies, like municipal fire departments or fire districts, provided certain conditions are met. Here, we do not have to go very deep to find an exception to this exception that prohibits considering your activity voluntary and therefore noncompensable.

Public agency employees [like yourself] cannot perform the “same type of services” as both an employee and a volunteer. Whether the collection of historical data and drafting grant narratives to develop a grant proposal is the “same type of service” as running calls on a fire truck for a 24-hour shift is a question of fact. However, the fact that the department clearly allows you to work on grant proposals in between calls while working on a 24-hour shift likely precludes the department from claiming that is somehow a different type of service for FLSA purposes. As a result this would be compensable work time under the FLSA.

Your question serves as a good example of why it is important for our fire service leaders to have a solid understanding of the FLSA’s basic hours worked and overtime requirements. It is not entirely out of the realm of possibility for the Assistant Chief to think that allowing a firefighter to work on special projects [like grant proposals] outside of normal work shifts could be considered a “volunteer” activity. This is especially true in a combination fire department that may have volunteer and paid firefighters. However, the FLSA and DOL regulations govern the compensability of this activity, not the fire department’s administration.

With that stated, best practice requires that fire departments be prepared for these types of hours worked scenarios. It is imperative that fire department’s policies and procedures clearly address the compensability of off-the-clock work. Those policies should include specific guidelines that require off-the-clock work—like working on grant proposals—to receive advance authorization from a member of the department’s command staff. Additionally, requests for compensation for off-the-clock work should be made within a reasonable time of completing the work. For example, waiting for several weeks or months to submit a request for thirty plus hours of off-the-clock work should be prohibited by policy. At the very least the policy should require off-the-clock work be submitted by the end of the work or pay period in which it was performed.