Fire Law: Substitutions and Shift Trades

Consider this: A fire chief is summoned to city hall for a hastily called meeting with a newly elected mayor. The mayor ran on a platform of running government like a business and has a reputation for being a private industry wiz who promised to run the city like she would run her own business.

The chief walks in to find the mayor, the new human resources director and the new city attorney present. All of them have a stern look on their face.

The mayor says, “Chief, we have some very grave concerns about the way you are running your shop.”

As the chief was processing the use of the word “shop” to describe the fire department, the human resources director says, “Chief, what are you thinking, allowing your firefighters to substitute for one another? Don’t you understand the payroll nightmare you are creating?”

The new city attorney says, “That has to stop right now. It is highly illegal.”

Caught off guard, the best the chief can muster is, “But we always did it this way.”

The above scenario might seem fictional. Unfortunately, several fire chiefs have had strikingly similar conversations, often just after a new city administration that’s familiar with private industry takes the oath of office for the first time in the public sector.

The good news: Substitutions, mutual swaps and shift trades are allowed for public sector employees. In addition, early reliefs are specifically allowed for firefighters.

The laws that govern public sector employees differ significantly from those that govern private sector employees. Many managers who come from the private sector may be unaware of public sector practices.

The Fair Labor Standards Act (FLSA) requires employers to compensate hourly (nonexempt) employees for all hours worked and to pay overtime when the hours that were worked exceed the maximum-hours threshold. To do so, the employer is required to track the hours that are worked by each employee. Under the FLSA, the number of hours that were scheduled is irrelevant. What matters is hours worked. In private industry, if Employee A works a 24-hour shift that Employee B was scheduled to work, Employee A gets paid for the 24 hours and Employee B does not. It is that simple.

The FLSA allows public employers to permit employees to substitute for one another and to ignore the substitution for payroll purposes.

A common misconception that often is held by firefighters is that the FLSA requires fire departments to permit substitutions. That is not true. The FLSA allows public employers to permit substitutions and specifically allows early reliefs for firefighters, but it does not mandate that they be permitted. The FLSA does require that the employer approve of any substitution that occurs. The FLSA is supplemented by Labor Department regulations that help clarify details.

Substitutions must be “made freely and without coercion, direct or implied” by the employer. As long as voluntary between the employees, substitutions can be ignored by the employer for purposes of calculating hours that were worked. Thus, when ­Firefighter A substitutes for Firefighter B for a 24-hour shift, the department can treat the hours that were worked by Firefighter A as hours that were worked by Firefighter B.

The employer essentially ignores the substitution for payroll purposes.

A number of substitution-related questions commonly arise. What if Firefighter A fails to show up to work for Firefighter B after Firefighter A agreed to do so? Neither the FLSA nor the Labor Department regulations address absences by substitutes. As such, it is up to the employer—or in collective bargaining jurisdictions to the agreement of the parties—to develop a solution to the situation. Some charge a sick day, personal day or vacation day to Firefighter A or Firefighter B. Some may even discipline Firefighter A for being absent without leave.

Another common question involves repayment of shift trades. There is no obligation under the FLSA that substitutions be repaid. The FLSA simply allows the substitution to occur without creating an obligation for the employer to track the actual hours that were worked by each employee. Payroll is managed as if the substitution never occurred.

An open question remains whether an employer can require repayment of time without violating the “made freely and without coercion, direct or implied” requirement.

A third common question applies to additional compensation for the working member. For example, if Firefighter A works for Firefighter B, and Firefighter A serves in a higher pay grade (e.g, acting captain) for the shift, who is entitled to the additional pay? The FLSA does not govern who should be paid the additional compensation nor even mandate that any additional compensation be paid. As such, it is up to the employer—or in collective bargaining jurisdictions, the parties—to address.

Although the FLSA leaves many of the finer points of substitutions up to the employer or the parties, consistency should not be overlooked. When a department handled a situation one way in 2021 with Firefighter A and Firefighter B and a different way in 2022 with Firefighter C and Firefighter D, problems can emerge.

It is advisable for fire departments to have written policies on substitutions that address the common issues that can arise. That written policy may even come in handy one day when a new city administration takes office.