Mandatory Overtime: A Legal and Safety Issue

By John K. Murphy

A firefighter recently posed a question asking what authority an employer has to compel mandatory overtime for firefighters, and it became a topic of conversation on the Fire Service Court podcast.  

The short answer is the department can do what it needs to do to ensure the department can deliver services safely. If you are in a bargaining unit, your contract should define the hours of overtime and under what conditions "forced overtime" occurs. If not in a bargaining unit, a department policy should address this issue.
 
The longer answer involves safety and performance issues and a new law (in New Jersey) that is applicable to the question posed by the firefighter
 
Work hours have presented an age-old problem that struggles for a rational solution in today’s workforce. When the United States was primarily an agrarian society, farmers used to work during the daylight hours, sometimes 12 to 16 hours. As we became an industrialized nation, what started out as 12-to-16 work hour “shifts” turned into a basic 40-hour workweek, including “overtime” hours. These changes came about because abused workers were “required” to work extensive hours and dealt with the rate of compensation, the number of injures (which created a safety crisis in the workplace), and child-labor issues. There are no real regulations under the Occupational Safety and Health Administration (OSHA) dictating the numbers of hours an employee can safely work, although the salary issues are covered under many rules created by the Department of Labor (DOL), which dictate the pay for hours worked. This may have created an economic disincentive for most employers to set longer work hours for their employees.  
 
In the fire service, there are many different shift schedules: 10/14, 24 on/24-off for three days on with 4 days off; 24/48; a Detroit 56; a four-platoon system; and now the new 48/96. For many firefighters, there is a 7 K exemption1 under the Fair Labor Standards Act (FLSA) which allows for a longer workweek with certain overtime pay considerations. Many employers have policies in addition to bargaining unit contracts dictating the hours one employee can work in succession. Some states under their own regulations may have laws that preclude a 48- or 72-hour shift without a 12-hour break in between or after the first 48 hours because of safety concerns. In Washington State, nurses cannot be required to work overtime in excess of the established schedules or agreed-upon workweek. Attempts to compel or force employees to work overtime are prohibited, except under unforeseeable emergency circumstances such as a disaster or catastrophic event. 2 This is primarily because of patient safety concerns. There are no such regulations covering firefighters.
 
The new firefighter 48/96 hour shift is creating a wave of discussion about the safety of firefighters, performance, and fatigue, and whether this new shift schedule will find firefighters at the short end of the safety issue with an increase of injuries to the firefighters and an increase in liability for the fire department. The debate continues.
 
 “Time after Time: Mandatory Overtime in the U.S. Economy” 3 validates the problems, finding that a longer shift results in a rise in injuries. Although not specifically studying firefighters, we can learn a lot from this study. In one section that addresses long hours of work and the risks to worker safety, public safety, and health, the study indicates that long hours can detrimentally affect workers, their co-workers, their families, consumers, and the public. Although evidence reveals that despite the short-term benefits that make overtime attractive to employers, it may in the longer term create offsetting harm to an organization by decreasing quality, increasing injuries, and reducing productivity. The article cites a 1998 German study which found that after nine hours at work, the accident rate begins to rise; in the 12th hour the accident rate was twice as high as the rate for the first nine hours.4 This study cites another study,5 which says that in the United States, job stress due to extended work hours is estimated to cost industry $150 billion per year in absenteeism, health insurance premiums, diminished productivity, compensation claims, and direct medical costs.
 
In another article originating in the United Kingdom,6 there were extensive studies that examined all of the aspects of shift work in the workplace. There were few surprises in the work hours of a normal workweek, but the research related to longer work hours included studies on the interruption of the circadian rhythms7 (human function in a 24-hour cycle); a reduction of the efficiency of performance; effects on family and social life; sleep deprivation; and increased fatigue, affecting mental health and well being. The study also demonstrated an increase in medical problems, including heart disease, gastrointestinal problems, weight gain due to increased stress, and a rise in blood pressure. The study also showed a decline in performance and an increase in accidents, and alludes to the factor that some major catastrophes--such as Three Mile Island, Chernobyl, ExxonValdez, and the space shuttle Challenger--all started in the earlymorning hours with errors by people who had been on dutyfor manyhours.
 
There are also extensive studies on the effects of extended hours of work by physician interns and the number of medical mistakes that occur toward the end of a 36- or 48-hour intern shift. Several groups, including the American Medical Association (AMA) and OSHA, are studying the deleterious effects of long hours for this group and are in the process of limiting the numbers of hours worked without a break for these interns.

In June 2003, “Maggie’s Law” was passed in New Jersey because of a fatal accident that involved a worker who was driving home after a working 30 hours.8 The law makes it illegal to knowingly drive a vehicle while impaired by lack of sleep. The new sleep and driving law means that the 24 million or so Americans who work in extended-hours jobs had better beware of sleep deficit. It is likely that other states will likely consider such legislation or review their current legislation. By laying out a specific rule about driving and fatigue, the New Jersey law attempts to make it easier to file criminal charges against a driver who falls asleep at the wheel and kills or injures someone.

The law raises the specter of organizational or corporate liability for companies that are deemed to have pressured employees into pushing the limits of fatigue to meet the demands of extended work schedules, such as in the cases of drowsy employees who work long hours, high amounts of overtime, double shifts, or even 24-hour on-call periods at their employer's request.

The U.S. Department of Transportation identifies fatigue as the number-one safety problem in transportation operations, costing more than $12 billion a year. Sleepy drivers are as much a danger as alcohol-impaired drivers, says the U.S. National Highway Traffic Safety Administration (NHTSA).9 Two recent Australian studies10 demonstrate that being awake for 18 hours produces impairment equal to a blood alcohol concentration (BAC) of 0.05 percent and 0.1 percent after 24 hours; 0.08 percent is considered legally drunk.

In my experience as a Health and Safety Officer, my department was seeing an increase in injuries for firefighters who work longer than a 24-hour shift and on extended overtime up to 48 hours. Those injuries were sprains, strains, and back problems that could take a firefighter off the line for a period of time, compounding the department’s overtime and staffing issues. Fortunately, we did not have more serious injuries.  We were unable to study performance issues during this time period because of a lack of resources and outcome data.
 
It appears that that forced overtime creates a hazardous situation for the firefighter and department. If you are in a busy house, 48 hours is the maximum to work without a break, and even that time frame is not without risk. My suggestion is that if the department finds itself in a mandatory extended-hours work situation, the affected employees should be given at least a 12-hour period of down time away from the firehouse. With many of our firefighters not living in the communities where they serve, the department may want to provide a place away from the worksite for these firefighters to rest before resuming work.  

A break in continuous shift work may make better economic sense to the fire department employer and may reduce firefighter injuries, compensation costs, and the number of errors noted in these extended-work situations.

REFERENCES

1. 29 U.S.C. § 207(k).

2. RCW 49.28.130 through RCW 49.28.150.

3. Economic Policy Institute: “Time After Time: Mandatory Overtime in the U.S. Economy,” Lonnie Golden and Helene Jorgensen, January 1, 2002. 

4. Hanecke, Kerstin; Silke Tiedemann; Friedhelm Nachreiner; and Hiltraud Grzech-Sukalo. 1998. “Accident Risk as a Function of Hour at Work and Time of Day as Determined From Accident Data and Exposure Models for the German Working Population.” Scandinavian Journal of Work Environment Health 24(Suppl. 3): 43-8.

5. Donatelle, R and M Hawkins. 1989. “Employee Stress Claims: Increasing Implications for Health Promotion Programs,” American Journal of Health Promotion 3: 19-25.

6. Occup Environ Med 2001;58:68-72 ( January). Professor J M Harrington Institute of Occupational Health, University of Birmingham, Birmingham B15 2TT, UK.

7. http://www.nigms.nih.gov/Publications/Factsheet_CircadianRhythms.htm/.

8. N.J.S.2C:11-5.

9. http://www.nhtsa.gov/people/injury/drowsy_driving1/Drowsy.html/.

10. Occup Environ Med 2000;57:649-655 doi:10.1136/oem.57.10.649.
 
 
JOHN K. MURPHY, JD, MS, PA-C, EFO, retired as a deputy fire chief after 32 years of career service; is a practicing attorney, and is a frequent speaker on legal and medical issues at local, state, and national fire service conferences. He is a frequent contributing author and podcast host with Fire Engineering and a member of ISFSI. 

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