Firefighter Overtime Discussing Fair Labor Standards Act (FLSA) for Firefighters, First Responders as well as Human Resource & Finance Professional
The U.S. Department of Labor (DOL) has issued a new opinion letter (FLSA2025-04) addressing whether “emergency pay” provided to firefighters can be excluded from the regular rate of pay when calculating overtime under the Fair Labor Standards Act (FLSA). The DOL concluded that the emergency pay cannot be excluded in the regular rate when calculating overtime.
The request for an opinion letter came from a Texas firefighter/paramedic whose city has a written policy on emergency pay. Under the policy, firefighters and other designated employees receive an additional one-half of their base hourly rate for every hour worked during a declared emergency period.
The firefighter argued that this additional compensation should be included in the regular rate for overtime purposes, because it does not fall within any of the statutory exclusions outlined in Section 7(e) of the FLSA. They further noted that the pay operates much like hazard pay, since duties performed during extreme weather or disaster conditions pose heightened physical risks.
The DOL agreed with the firefighter and based its decision on the following factors: First, the city’s emergency pay does not qualify as a discretionary bonus. It is promised in advance through a written policy. Once firefighters work during a declared emergency, the employer has no discretion over whether to pay it or how much to pay. Because the fact and amount of the payment are predetermined, it cannot be excluded as a discretionary bonus.
Second, the emergency pay does not fit within the overtime premium pay exception. Emergency pay is not tied to working over 40 hours in a week, on weekends/holidays, or outside regular scheduled hours—the limited scenarios where the FLSA allows premium pay to be excluded from the regular rate. Instead, it is paid simply for working during emergency conditions. Additionally, DOL regulations found at 29 CFR 778.207 require that ““extra compensation provided by premium rates other than those described in the statute,” such as “nightshift differentials” and “premiums paid for hazardous, arduous[,] or dirty work,” “cannot be treated as overtime premiums.” 29 CFR 778.207. When such premiums are paid, they must be included in a non-exempt employee’s regular rate of pay.”
The opinion letter also includes a hypothetical calculation illustrating how the extra compensation (a.k.a. remuneration) provided to firefighters as “emergency pay” should be included in their regular rate. This letter represents the fourth opinion letter offered this year, and the first related to FirefighterOvertime. We will be keeping our eyes peeled for future letters that impact firefighters and other public safety professionals.
Do you have questions about what can be rightfully excluded from a firefighter’s regular rate of pay? If yes, please join us for FLSA for Fire Departments in DeLand, Florida, December 9-11, 2025. Just as a reminder: Early Bird Pricing (a savings of $80 per person) ends tomorrow October 1, 2025.
is a copy of the opinion letter and past coverage of the DOL’s Opinion Letter program.
