Unilateral Changes to Overtime Eligibility, the §207(k) Partial Overtime Exemption, and the FLSA

Today’s FLSA Question: I am a firefighter for a small municipal fire department. Currently our department is only staffed during daytime hours. We utilize a paid-on-call system and call-backs for incidents that occur during overnight hours. We are transitioning to a 24-hour staffing model in the new year with the combination of fulltime and part-time firefighters. Each shift will have two firefighters and one officer on duty 24/7. Currently we receive overtime pay after working 40 hours in a seven-day workweek. However, when the town agreed to provide fulltime 24/7 staffing coverage town officials insisted that we use a 28-day work period and that we will only receive overtime after working 212 every four weeks. This will make it very difficult for the part-time firefighters to receive overtime pay. Does the FLSA allow the town to unilaterally change our overtime pay this way?

Answer: The simple answer to your question is yes, the FLSA would not prohibit a city or town from unilaterally adopting a work period and utilizing the FLSA’s §207(k) partial overtime exemption for its firefighters. However, like many aspects of the FLSA this question requires a bit more explanation and does not lend itself to a simple yes or no answer. In other words, there are some other important factors that need to be examined to get a better idea if the town’s actions are correct.

The FLSA’s §207(k) partial overtime exemption can apply to fulltime, part-time, per diem, paid-on-call or any other paid firefighter. There is no requirement that the firefighter be employed “full-time” to fall under the partial exemption. Whether a fire department can claim the §207(k) partial overtime exemption depends on whether its firefighters’ meet the definition of an employee engaged in fire protection activities. To be properly classified as an employee engaged in fire protection activities, the employee must be:

• Employed by a public fire department;
• Trained in fire suppression;
• Have the legal authority and responsibility to engage in fire suppression; and
• Be engaged in the prevention, control, and extinguishment of fires or response to emergency situations.

All four of the above requirements must be satisfied to meet the definition. If the firefighters within your organization meet the above four criteria, they can be properly considered a §207(k) firefighter and therefore only eligible for overtime after working more than 212 hours in a 28-day work period.

Despite the fact that the FLSA wouldn’t prohibit this type of change, there could be collective bargaining requirements, state laws, or even city polices that could restrict the town’s actions.  For example, in Rhode  Island, state law requires that firefighters receive overtime after working 42 hours in a week as opposed to 53 as required by the FLSA. This is an example of a state wage and hour law that provides a greater benefit than what is required by the FLSA. Similarly, Massachusetts courts have found that changing a fire department’s work period is subject to collective bargaining and cannot be unilaterally undertaken by the employer without engaging in the bargaining process first. This is an example of a state’s labor relations statutes and regulations impacting the employer’s rights to unilaterally change the terms and working conditions of employees in that particular state. While these specific examples may not apply in your state, there could be similar requirements in your state that should be examined by a local attorney.

The important take-away is that while the FLSA may not specifically prohibit the changes sought by the town, there are other important considerations that need to be evaluated in addition to the FLSA to determine if the town can unilaterally make the proposed changes.