Shift Trades and the FLSA

Today’s FLSA Question: I am the HR director for a small city. Before taking this job I worked for many years as an HR manager in the private sector. I am struggling with some of the unique components of the FLSA that only apply to public sector workers. I am especially concerned about some of the practices within the fire department. I am being told that firefighters can “trade” or “swap” shifts with each other and there are no FLSA implications. This sounds crazy to me. Are there FLSA implications for firefighters that trade shifts?

This might surprise you, but firefighters (and other public agency employees) can “trade” or “swap” shifts under certain conditions.  It is even possible to have zero FLSA implications from shift trades or swaps if you meet certain requirements and follow rules established by both the FLSA and regulations.  Does your fire department meet these requirements and follow these rules? Let’s take a closer look.

The FLSA generally requires employers to count all hours worked during each work period when determining overtime eligibility. One would think that the hours a firefighter works as a substitute for another firefighter would fall under this general rule. However, the FLSA contains a very unique provision that applies only to public agency employees, including many firefighters. Public agency employees can substitute or trade shifts for each other without impacting hours worked for FLSA overtime purposes. These provisions can be found at 29 U.S.C. §207(p)(3):

If an individual who is employed in any capacity by a public agency which is a State, political subdivision of a State, or an interstate governmental agency, agrees, with the approval of the public agency and solely at the option of such individual, to substitute during scheduled work hours for another individual who is employed by such agency in the same capacity, the hours such employee worked as a substitute shall be excluded by the public agency in the calculation of the hours for which the employee is entitled to overtime compensation under this section.

In order to exclude hours a firefighter works as a substitute from hours worked for overtime purposes, all of the following conditions must be met:

• The fire department must be a public agency.
• The fire department must approve the substitution.
• The substitution must be voluntary.
• The individuals substituting must be employed by the same agency and in the same capacity.

If all four of the above requirements are met, the hours worked as a substitute can be excluded from a firefighter’s hours for the work period. This raises an interesting question. If you exclude the hours a firefighter works as a substitute, what about the hours a firefighter does not work because he or she utilized a substitute?

Surprisingly, the FLSA is silent on this question. But Department of Labor (DOL) regulations make it clear that the hours a firefighter is not working—because he or she is utilizing a substitute—count toward hours worked for FLSA overtime purposes. The regulations, which can be found at 29 CFR §553.31, state: “where one employee substitutes for another, each employee will be credited as if he or she had worked his or her normal work schedule for that shift.”

It is understandable why these “public agency only” regulations may come as a shock to a former private sector HR manager.  . . . But, under this very unique provision, an employer is required to count hours not worked by an employee when determining overtime eligibility.

As an example, a firefighter uses substitutions for every scheduled shift in a 14-day work period. Substituting firefighters work all 5 of the firefighter’s scheduled 24-hour shifts for the 2 weeks. The firefighter is never physically present in the fire station for 2 weeks. Despite never stepping foot in the station for the entire 14-day work period, the firefighter should receive 14 hours of FLSA overtime.

Now.  . . . What happens if the firefighter does not repay the substitution? Never seems to repay any substitutions . . . ever? Or what happens if a firefighter calls out sick when he or she is supposed to be working for another firefighter? This can get complicated!

Substitutions is always a hot topic at all of our FLSA for Fire Departments seminars. Please consider joining us.