Firefighter Overtime Discussing Fair Labor Standards Act (FLSA) for Firefighters, First Responders as well as Human Resource & Finance Professional
Today’s FLSA Question: I am a newly appointed captain in charge of my department’s training academy. Our department provides 16-week in-house training program for new recruits. At the end of the academy the firefighters are certified as Firefighter I and II. I have some serious concerns about the way we pay our recruits. We require our recruits to work around 50 hours per week. Additionally, there are a few weeks during the academy that the recruits are required to attend night drills and an occasional weekend drill. The recruit firefighters receive a fixed weekly salary with no overtime. The rationale is that the recruits can be paid the same way as shift firefighters. Our shift firefighters work a 48/96 schedule for a 56-hour average workweek. Does the FLSA allow recruit firefighters to be paid this way?
Answer: Good question. This seems like a straightforward simple question. However, your question is far from simple. You need to run this one by your local counsel. There are too many possible variables and additional considerations that could impact the answer. State laws, collective bargaining requirements, and city policies would need to be reviewed. However, your question presents a great opportunity take a closer look at recruit firefighters and the FLSA’s §207(k) partial overtime exemption.
We will assume that the firefighters in your organization that are working a 48/96 schedule with a 56-hour average work week are being paid under the FLSA’s §207(k) partial overtime exemption. This unique provision of the FLSA allows public agency employers avoid the FLSA’s normal overtime requirements for employees engaged in fire protection activities. For more on the ins-and-outs of the §207(k) overtime exemption, click here.
The next question is whether the recruit firefighters can also be classified as employees engaged in fire protection activities. Whether any firefighter can be classified as a §207(k) firefighter depends on whether he or she meets requirements found in both the FLSA and Department of Labor (DOL) regulations. Generally speaking, in order to qualify under the §207(k) exemption, the firefighter must:
- be trained in fire suppression;
- have the legal authority and responsibility to engage in fire suppression;
- be employed by a fire department of a municipality, county, fire district, or State;
- and be engaged in the prevention, control and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.
Let’s apply the above requirements to your situation. We do not have to look very far to find a potential problem. First, are the recruit firefighters trained in fire suppression? I highly doubt that a brand-new firefighter recruit is trained in fire suppression on day-one. Could that recruit be sufficiently trained by week thirteen, fourteen, fifteen, or sixteen? Possibly, however that would depend on your specific facts.
Second, does the recruit have the legal authority and responsibility to engage in fire suppression? That answer likely hinges on the answer to the first question. If a firefighter is not trained, they obviously have no authority or responsibility to perform fire suppression. Assuming that the firefighter is trained, is the firefighter legally responsible to engage in fire suppression? Has the firefighter sworn an oath requiring them to act in a certain way if faced with an emergency situation? Again, whether the firefighter meets the second requirement will vary based on the specific facts.
We will skip reviewing the third requirement since it will most likely not present a challenge because we are assuming the department is correctly utilizing the §207(k) exemption for its shift firefighters. Finally, the last [fourth] requirement necessary to utilize the FLSA’s §207(k) exemption requires that the firefighter is engaged in the prevention, control and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk. This last requirement is also highly dependent on whether the recruit firefighter is trained and has the legal authority and responsibility to engage in fire suppression.
Unfortunately, neither the FLSA nor DOL regulations contain a bright-line rule on when a recruit firefighter meets the requirements necessary to be classified as a §207(k) firefighter. Best practices necessitate leaving recruit firefighters on a traditional 40-hour workweek until the firefighter meets all the criteria cited above. Here are a couple of past posts written on this topic.
