The Fair Labor Standards Act (FLSA) plays an important role in the fire service, governing matters that range from a firefighter’s right to overtime to the financial incentives that volunteers can receive. FLSA lawsuits remain one of the most litigated issues in the fire service. It is no exaggeration to say that the FLSA is the most important law that affects the fire service. Unfortunately, it also is one of the least understood.
The FLSA is complicated and unforgiving. Even inadvertent mistakes can cost an employer double the actual damages plus the employee’s attorneys fees. An employee can recover for mistakes going back two years from the date that a lawsuit is filed and under certain circumstances may be permitted to go back even further.
So, what are the biggest mistakes that fire departments make when it comes to the FLSA?
Here are the five most common:
Regular rate
Regular rate violations are the most common FLSA mistakes that employers make. An employer is required to pay employees at least minimum wage and overtime after they reach the statutory maximum-hour requirement. For most employees, the maximum-hour requirement is 40 hours in a seven-day workweek.
For employees who are in fire protection activities, Section 207K of the FLSA increases the maximum-hour requirement to 53 hours in seven days. It allows a fire department to adopt a work period of up to 28 days, with the maximum-hour requirement increasing on a sliding scale following the same ratio of 53 hours in seven days.
Once maximum hours are exceeded, employees are entitled to compensation at one-and-one-half times their regular rate. The term regular rate is defined in the FLSA to include “all remuneration” that’s paid to an employee. Although that expression might seem harmless enough, it is a loaded term. All remuneration means all monetary payments that are made to an employee, with eight narrow exceptions. Regular rate must include incentive pay, longevity pay, shift differentials, acting out-of-rank (step-up) pay, certain buybacks and a variety of other enhancements that many firefighters receive.
Calculating regular rate for firefighters is even more complicated because of fluctuating hours and because of an overreliance on overtime to meet minimum staffing. For example, there are several ways to convert a firefighter’s annual paramedic incentive into an hourly equivalent. Inevitably, folks view the method that benefits them the most as the correct method. The U.S. Supreme Court has called regular rate questions “perplexing,” and that was not even in a fire service case.
Misclassifying white collar
The FLSA allows an exemption from minimum wage and overtime for certain white-collar employees who receive a salary of at least $684 per week. The misclassification of certain officers as exempt executive, administrative or professional employees is a common FLSA mistake. In 2004, the U.S. Labor Department issued the First Responder Regulations to help to minimize the number of instances of such a mistake. The First Responder regulations state that personnel whose primary responsibility is to respond to emergencies do not qualify for the exemption, regardless of rank or title. Despite these regulations, the subject remains a contested area for both company officers and chiefs.
Unpaid hours
Separating work from non-work can be challenging, and that’s particularly the case today given that technology allows remote access to the fire department network, incident reports and emails. In addition, shift overlaps, on-call time and a variety of department-specific practices that predate 1985 (the year in which the FLSA became applicable to government employees) complicate the unpaid hours problem even further.
Misapplying Section 207K
Section 207K of the FLSA allows an exemption from the normal “overtime after 40 hours per week” for employees who are engaged in fire protection activities. Qualifying personnel can work up to 212 hours in 28 days before overtime is required. The misapplication of the 207K exemption to paramedics, EMTs, dispatchers and support personnel is responsible for some of the largest verdicts and settlements in the fire service. The term employee engaged in fire protection activities is limited to those who have the actual responsibility and legal authority to engage in fire suppression.
Volunteer compensation
The vast majority of firefighters in the United States are volunteers. Recruiting, training and retaining volunteers is a challenge that leads many departments to offer financial incentives. These well-intentioned financial incentives can result in a volunteer becoming an underpaid employee in the eyes of the FLSA. If this happens, volunteers-turned-employees are entitled to minimum wage and overtime for all of their hours.
The FLSA allows some financial incentives to volunteers, but the rules are far from simple.
Given the fact that there are nearly 25,000 volunteer fire departments and 800,000 volunteers in the United States, and that most volunteer departments find themselves struggling to recruit and retain personnel, the scope of the problem is daunting.
Curtailing via mindfulness
Awareness is the critical first step if a department hopes to avoid these five pitfalls. The FLSA is not easily understood, and reasonable minds may differ in regard to the proper interpretation of many of the Act’s provisions. Selecting between alternatives often involves a balancing of the risks. The consequences of a mistake can be profound for the organization. However, with proper planning, FLSA mistakes undoubtedly can be minimized.
Curt Varone
CURT VARONE has more than 40 years of experience in the fire service, including 29 years as a career firefighter with Providence, RI, retiring as a deputy assistant chief (shift commander). He is a practicing attorney who is licensed in Maine and Rhode Island and served as the director of the Public Fire Protection Division at the NFPA. Varone is the author of two books, "Legal Considerations for Fire and Emergency Services" and "Fire Officer's Legal Handbook," and remains active as a deputy chief in Exeter, RI.
