FIRE-BASED EMS AND THE FLSA “FIREFIGHTER EXEMPTION”

FIRE-BASED EMS AND THE FLSA “FIREFIGHTER EXEMPTION”

BY ALAN D. COHN

Under the law, employers are required to pay their employees overtime after 40 hours of work per week. When a public agency employs firefighters, the law allows the agency to pay the firefighters straight time for up to 53 hours per week. But what about emergency medical services (EMS) personnel who work for the fire department and are classified as firefighters? There is no clear answer; therefore, fire service managers must be very careful in structuring overtime pay policies for fire-based EMS personnel, to avoid liability for failing to pay overtime properly.

In 1974, Congress amended the Fair Labor Standards Act1 (FLSA), which governs overtime, so that the Act applied to state and local governmental organizations. However, Congress recognized that certain governmental employees, such as firefighters, do not work normal 40-hour workweeks. Therefore, Congress included a partial exemption from the Act`s overtime requirements for some governmental employees, including those engaged in fire protection activities. This is the so-called “firefighter exemption.” The U.S. Department of Labor (DOL) regulations that implement the Act contain what is known as the “80/20 Rule.”

However, the fire service has changed dramatically since 1974. One of the fundamental changes has been the addition of EMS to traditional fire departments and the resulting shift in call volume from fire suppression to EMS. In 1974, when EMS was still in its infancy, Congress could not have envisioned such a shift, and the DOL regulations have not kept pace with this and other developments within the fire service.

BACKGROUND

Most counties, cities, and other governmental organizations provide EMS using one of four distinct organizational models:

(1) fire and rescue departments that fully integrate fire and EMS, cross-training and rotating all personnel between fire suppression apparatus and EMS vehicles, and staffing suppression apparatus with personnel trained in basic and/or advanced life support;

(2) fire and rescue departments that have a separate EMS division or bureau that maintain different training requirements for fire suppression and EMS personnel and do not as a matter of course rotate personnel between suppression apparatus and EMS vehicles;

(3) “third-service” public agencies that provide only EMS; and

(4) private companies that provide primary EMS response or respond in conjunction with fire apparatus that have responsibility for patient care and/or transport.

A majority of paid EMS delivery systems are organized under one of these four models.

FLSA Origin

Congress enacted the FLSA in 1938 as part of the second round of sweeping New Deal legislation proposed by President Franklin D. Roosevelt. The FLSA imposes three main obligations on employers: (1) they must pay their employees a minimum wage; (2) they must pay their employees premium pay for overtime work–work in excess of 40 hours in one week; and (3) they can only employ children under certain conditions.2

Obviously, the minimum wage provisions were intended to help the nation`s lowest-paid workers, and the child labor provisions were intended to protect children. However, the overtime provisions were not included with the intention of helping the people you would think they would help. Congress included the overtime provisions of the Act in an effort to help spread work–in other words, to encourage employers to employ more people by making them pay overtime to those workers already employed.3 Congress hoped that employers would choose to hire more people instead of paying overtime wages.

In 1938, the country was in the midst of the Great Depression, and Congress hoped that the overtime obligation would help ease the unemployment problem. Today, however, because of employee benefit packages, it has become cheaper, generally, for an employer to pay overtime to its existing workers than to hire additional workers, so the Act does not accomplish its work-spreading goals as well anymore.4 However, the overtime provisions of the FLSA are still intended to benefit society, not the individual worker. This is the reason exceptions to the Act, like the “firefighter exemption,” are interpreted very narrowly.

THE LAW

In 1974 Congress enacted Section 7(k) of the Act, which states:

No public agency shall be deemed to have violated subsection (a) of this section [regarding maximum hours] with respect to the employment of any employee in fire protection activities … if –

(1) in a work period of 28 consecutive days the employee received four tours of duty which in the aggregate exceed the lesser of (A) 216 hours, or (B) the average number of hours … in tours of duty of employees engaged in such activities in work periods of 28 consecutive days in calendar year 1975; or

(2) in the case of such an employee to whom a work period of at least 7 but less than 28 days applies, in his work period the employee receives four tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in his [or her] work period as 216 hours … bears to 28 days, compensation at a rate not less than one and one-half times the regular rate at which he [or she] is employed.

The hour threshold was later changed to 212 hours for fire protection employees.5

What this means is that, under this “firefighter exemption,” public agencies may pay their “fire protection” employees straight time, without overtime, for the first 53 hours worked in a week, or for the first 212 hours worked in a 28-day period.6 Section 7(k) also allows the agency to average out the fact that a firefighter may work more than eight hours in a shift and may work a different number of shifts each week.

According to the DOL regulations that implement and interpret the FLSA, Section 7(k) does not apply to private companies that provide fire protection or EMS, even if those organizations have a contract with a town, city, county, or state.7 Also, the regulations state that “an employee engaged in fire protection activities” includes only employees who

(1) are employed by an organized fire department or fire protection district;

(2) have been trained to the extent required by State statute or local ordinance;

(3) have the legal authority and responsibility to engage in the “prevention, control or extinguishment of a fire of any type”; and

(4) perform activities which are required for and directly concerned with the prevention, control or extinguishment of fires, which can include incidental non-firefighting functions such as housekeeping, equipment maintenance, lecturing, attending community drills, and inspecting homes and schools for fire hazards.8

Most firefighters fall within this four-factor standard.

In addition to these requirements, employees must also spend at least 80 percent of their work time performing fire protection activities–this is what is commonly known as the “80/20 Rule.” Under this rule, an employee who spends more than 20 percent of his or her working time performing “nonexempt work” is not considered an employee engaged in fire protection activities.9 “Exempt” work is work performed as part of or in conjunction with the employee`s fire protection activities, such as building inspections, drills, and training. “Nonexempt” work is other types of work, such as debris clearance and road work.

In 1997, EMS runs dominated the call volume of most major fire departments. For example, the Fairfax County (VA) Fire and Rescue Department, a cross-trained department, responded to 18,959 fire calls and 49,150 EMS calls. The Sacramento (CA) Fire Department, also a cross-trained department, responded to 4,217 fire calls and 36,973 EMS calls. The Fire Department of New York, which maintains a separate EMS bureau, ran 340,318 fire calls and 1,299,483 EMS calls. Likewise, the District of Columbia Fire and EMS Department, which also maintains a separate EMS bureau, responded to 39,491 fire calls and 102,357 EMS calls.10

The House of Representatives General Labor Subcommittee, which wrote the language of the exemption back in 1974, intended to include “those employees directly employed by a public agency who are engaged in rescue or ambulance activities which are substantially related to fire protection … activities” within the scope of the exemption.11 Therefore, governmental fire departments can pay EMS personnel pursuant to the Section 7(k) exemption.

However, the DOL regulations state that fire department EMS personnel may qualify for treatment under the Section 7(k) exemption “if such personnel form an integral part of the public agency`s fire protection activities.”12 The regulations also state that employees of public agency “third service” ambulance and rescue service providers may also be treated like employees engaged in fire protection activities. However, their services must be “substantially related to firefighting” activities, in that:

(1) the ambulance and rescue service employees must have received training in the rescue of fire, crime, and accident victims or firefighters or law enforcement personnel injured in the performance of their duties; and

(2) the ambulance and rescue service employees must be regularly dispatched to fires, crime scenes, riots, natural disasters and accidents.13

Again, this does not include employees of private companies that provide ambulance or rescue services, even if the company has a contract with a public agency.14

INTERPRETATION

The coverage provisions of the FLSA seem relatively straightforward. Personnel who work for private companies must be paid overtime after 40 hours of work.15 Firefighters who meet the four-factor standard, which can include fire-based EMS personnel, may be paid according to the “firefighter exemption.”16 Fire-based EMS personnel must meet the “integral part” test to be included within the exemption.17 Finally, personnel who work for third-service EMS agencies must meet the “substantially related” test to be paid pursuant to the exemption.18 However, the courts have not adopted these distinctions, and, consequently, they have not evaluated fire-based EMS personnel in a uniform manner.

Indeed, the courts are split as to their analytical approach to fire-based EMS. Some courts have followed the language of the regulations and have asked whether EMS personnel were an integral part of the fire protection system. For example, in Alexander v. Kansas City, Kan.,19 a Federal court examined the operations of the EMS Division of the Kansas City (KS) Fire Department, to determine whether the EMS Division personnel were “essential to the fire protection activities” of the city.20 The fire department generally dispatched EMS Division ambulances on advanced life support calls, using suppression or rescue apparatus as first-response units and two private companies for basic life support (BLS) transport.21 The EMS personnel were not cross-trained as firefighters, but the court found that they did receive some training in extricating and treating accident victims. The EMS Division personnel responded to every fire at which there was a likely potential for injury, and suppression or rescue units co-responded on 90 percent of EMS Division calls.22 EMS Division personnel did not perform dispatch work or run interfacility transfers.23 Therefore, the court concluded that the EMS Division personnel did fall within the firefighter exemption`s “integral part” requirement.

However, in Nalley v. Mayor and City Council of Baltimore, Md.,24 a different Federal court equated the “integral part” test with the four-factor standard for fire protection personnel to determine whether EMS Division personnel fell within the firefighter exemption. As in Alexander, the EMS Division personnel operated within the same unified command structure, worked out of the same facilities, were represented by the same union, and wore the same uniforms as other firefighters.25 However, the court found that while EMS Division personnel worked for an organized fire department and received some firefighting training, the personnel did not have the authority to fight fires and did not perform duties “required for, and directly concerned with, the prevention, control or extinguishment of fires.”26 Therefore, the court concluded that the EMS Division personnel were not an “integral part” of the fire department.

Unlike the courts in Alexander and Nalley, most courts have disregarded the language of the regulations and have analyzed fire-based EMS in the same manner as third-service EMS providers, meaning that they apply the “substantially related” test.27 Indeed, a 1987 DOL Letter Ruling in-structs agencies to do so.28 The Letter Ruling states that, to qualify for the exemption, personnel must: (1) be trained to rescue individuals who have been injured or who are in danger of being injured; and (2) be “regularly dispatched” to fires and accidents.29 This is the same “substantially related” test applied to third-service EMS providers.

Under the “substantially related” test, the court first must determine whether EMS personnel are “trained to rescue.” Some courts interpret this requirement to mean that EMS Division personnel must be trained in light extrication techniques.30 However, other courts require that EMS Division personnel be trained in the use of heavy extrication tools to meet this requirement.31 Regardless of the level of training required, most courts do not require that the EMS Division personnel use this training to qualify for the exemption.32

The second inquiry under the “substantially related” test is whether EMS personnel are “regularly dispatched” to “fires, crime scenes, riots, natural disasters, and accidents.” Neither the Act nor the regulations define “regularly dispatched,” and the term is subject to wildly differing interpretations. For example, in Bond v. City of Jackson, the court found that EMS personnel met this requirement because suppression or rescue apparatus co-responded with EMS Division ambulances more than 90 percent of the time.34 In Justice v. Metropolitan Government of Nashville, Davidson County,35 the court examined several factors to make this decision. These included: (1) the percentage of the Division`s total calls which are fires, crimes, and automobile accidents; (2) the percentage of total personnel hours spent responding to dispatches to fires, crimes, and automobile accidents; and (3) the percentage of the total number of all fires, automobile accidents, and police calls that occur throughout the county to which Division personnel are dispatched.36

If the disagreement between “integral part” and “substantially related” sounds familiar, it should. The split between Federal courts reflects the split found within the fire service today. The regulations state that, in analyzing fire-based EMS, courts should determine whether EMS forms an “integral part” of the fire department mission. However, in choosing to analyze fire-based EMS in the same manner as a third-service EMS provider, the Federal Court of Appeals for the Sixth Circuit–Ohio, Kentucky, and Tennessee–stated that “we are unable to understand why ambulance and rescue service personnel within the fire department should be treated differently for these purposes from those who are within another public agency.”37 This shows that the internal dispute within the fire service has spilled over into the courts.38

Finally, regardless of whether a court applies the “integral part” test or the “substantially related” test, the court must also apply the 80/20 Rule. Courts evaluate whether EMS Division personnel perform “nonexempt” work more than 20 percent of the time, in violation of the 80/20 Rule. Courts are divided, however, as to what constitutes “nonexempt” work. Most courts find that time spent on EMS calls not related to fire suppression are nonexempt. However, courts are split as to whether waiting time, which can constitute a large portion of any firefighter`s average shift, is exempt or nonexempt. For example, in Justice, the court also stated that exempt work, for the purposes of the 80/20 Rule, included waiting to be dispatched to fire-related activities, but that nonexempt work included patient transfers and accident calls (with the exception of automobile ac-cidents).39 However, in Nalley, the court held that all activities except for actually engaging in fire suppression were nonexempt for purposes of the 80/20 Rule.40

WEST v. ANNE ARUNDEL COUNTY, MD.

With that history as a backdrop, the Federal Court of Appeals for the Fourth Circuit considered the case of John West. West and several dozen other current or former firefighter/EMTs and firefighter/paramedics with Anne Arundel County, Maryland, brought suit against the county for back pay under the FLSA, claiming that they did not fall within the firefighter exemption. As introduced into evidence at the trial, all Anne Arundel County firefighters complete the 21-week Fire Academy, which includes training in firefighting, EMS, rescue, and hazardous materials operations. On completion of the Academy, some firefighters are assigned to the EMS Division. The EMS Division personnel work the same shift schedule and are part of the same command structure as all other firefighters. The employment relationship between the county and all its firefighters is governed by the same collective bargaining agreement. However, firefighters assigned to the EMS Division are generally prohibited from taking part in suppression activities and focus mainly on their medical duties.41

Unlike most other courts, the court in West`s case analyzed the EMS Division personnel under the “integral part” test. The county claimed that the EMS Division personnel were an “integral part” of the fire department`s fire protection activities, stressing the unified command structure, the same fire academy requirements, the shared union representation, and shared facilities. However, the court found that the EMS Division personnel exceeded the 20 percent limitation of the 80/20 Rule.42 The court stated that

During the period of this lawsuit, at least 80 percent of the Fire Department`s calls required only emergency medical services and did not involve fire suppression at all. Medical services which are not rendered at the scene of any fire do not qualify as exempt activities.

The court also concluded that preparing for EMS calls, responding to EMS calls, transporting patients to hospitals, and participating in EMS training was “nonexempt” work. As such, the county was liable for back pay. This is now the law in Maryland, Virginia, West Virginia, North Carolina, and South Carolina–fire department EMS personnel who go through the academy, share a unified command and collective bargaining agreement, and respond to an average number of EMS calls for a fire and rescue department, but who work in an EMS Division, are not an essential part of the fire department.

The major distinction in this case was that all Anne Arundel County firefighters were cross-trained. As such, the court`s conclusion illustrates that the 80/20 Rule is entirely incompatible with the fire service of the 1990s. No fire department in the country that provides EMS spends 80 percent of its aggregate time performing fire suppression activities. However, if the department separates its EMS personnel into a separate division, those personnel will most likely never meet the requirements of the 80/20 Rule, regardless of whether or not the department cross-trains the EMS personnel. This approach is inconsistent with the purpose of the 80/20 Rule, which was designed to keep governmental units from using exempt firefighters for tasks such as road repair, sanitation disposal, and parks and recreation work, while also taking advantage of the exemption.43 It is also in conflict with the purpose of the “firefighter exemption,” which is to ease the burden placed by the FLSA on governmental agencies that provide public safety functions.44

Several firefighter advocacy groups, including the International Association of Fire Fighters and the Congressional Fire Services Institute, recognized this inconsistency. In response, Representative Robert L. Ehrlich, Jr. (R-MD) introduced a bill onto the floor of the House of Representatives on May 22, 1998, that is intended to clarify whether fire-based EMS personnel are, or are not, firefighters in the eyes of the law. The firefighter exemption currently includes “any employee involved in fire protection activities.” The bill would force courts to include in this definition paramedics, EMTs, and rescue and ambulance personnel who are cross-trained as firefighters and who work for governmental fire departments.45 This provision is currently winding its way through the House of Representatives. As of the writing of this column, in September 1998, no corresponding bill had been introduced in the Senate. The House bill is H.R. 3958, and whether you support it or oppose it, now is the time to make your voice heard.

In addition, Anne Arundel County has appealed to the Supreme Court to reverse the Fourth Circuit`s decision. However, the Supreme Court will most likely not decide whether to grant the county`s appeal for several months.

While the firefighter exemption was designed to ease the burden on governmental organizations that provide fire service, the outdated regulations and inconsistent court interpretations have made it a Catch-22 for departments that wish to provide EMS. Consequently, departments should do the following before choosing to pay, or continuing to pay, EMS personnel according to the firefighter exemption:

Evaluate how your department`s EMS operations fit within the department as a whole.

Compare your pay policies for suppression personnel and EMS personnel.

Speak with counsel about this issue, before it results in a lawsuit.

Fire service managers are well-served to note that, regardless of whatever happens in the Congress or in the Supreme Court, until the fire service resolves this question, departments will continue to come under scrutiny for their decisions to treat firefighters assigned to EMS in the same manner as other firefighters. n

Endnotes

1. 29 U.S.C. §§ 201 et seq.

2. See generally Steven L. Willborn et al., Employment Law 463 (1993).

3. Id. at 469.

4. Id. at 471.

5. 29 C.F.R. § 553.201(a).

6. 29 U.S.C. § 207(k).

7. 29 C.F.R. § 553.202.

8. 29 C.F.R. § 553.210.

9. 29 C.F.R. § 553.212.

10. Marisa E. Campbell, et al., The National Run Survey 1997, Firehouse, June 1998, 92.

11. 120 Cong. Rec. 8598 (1974); see Horan v. King County, Wash., Div. of Emergency Medical Services, 740 F. Supp. 1471, 1476 n.3 (W.D. Wash. 1990).

12. Id.

13. 29 C.F.R. § 553.215(a).

14. 29 C.F.R. § 553.215(c).

15. 29 C.F.R. § 553.202.

16. See, e.g., Christian v. City of Gladstone, Mo., 108 F.3d 929 (8th Cir. 1997), cert. denied, 118 S. Ct. 557 (1997).

17. Alexander v. Kansas City, Kan., No. 92-2379-JWL, 1993 WL 393013 (D. Kan. Sept. 23, 1993).

18. 29 C.F.R. §§ 553.210(a), 553.215; see, e.g., Roy v. County of Lexington, S.C., 141 F.3d 533 (4th Cir. 1998).

19. See note 17, supra.

20. Id. at *5-*6.

21. Id. at *1.

22. Id. at *6-*7.

23. Id.

24. 796 F. Supp. 194 (D. Md. 1992).

25. Id. at 197.

26. Id. at 200.

27. See, e.g., Bond v. City of Jackson, 939 F.2d 285 (5th Cir. 1991).

28. Id. at 288.

29. Id. [citing DOL, Wage & Hour Div. Ltr. Rul. (Oct. 9, 1987)].

30. See Bond, 939 F.2d at 288.

31. See Alex v. City of Chicago, 29 F.3d 1235 (7th Cir.), cert. denied, 513 U.S. 1057 (1994).

32. See id.

33. 29 C.F.R. § 553.215(a).

34. See note 27, supra.

35. 4 F.3d 1387 (6th Cir. 1993).

36. Id. at 1397.

37. Id. at 1395.

38. For a discussion of relevant cases, see Andrew M. Johnson, Annotation, Emergency Medical Technicians, Paramedics, Ambulance Personnel and Rescue Service Workers as Fire Protection or Law Enforcement Personnel for Purposes of § 7(k) of Fair Labor Standards Act [29 U.S.C.A. § 207(k)] Providing Limited Exemption From Overtime Protection for Employees Engaged in Fire Protection or Law Enforcement Activities, 116 A.L.R. Fed. 143 (1993).

39. Id. at 1397-1399.

40. Nalley, 796 F. Supp. at 200.

41. West v. Anne Arundel County, Md., 137 F.3d 752 (4th Cir.), petition for cert. filed, 67 U.S.L.W. 3149 (Aug. 11, 1998).

42. Id. at 761.

43. See Justice, 4 F.3d at 1396.

44. H.R. Conf. Rep. No. 93-913, at 28-29 (1974), reprinted in 1974 U.S.C.C.A.N. 2811, 2838.

45. H.R. 3958, currently pending.

n ALAN D. COHN is a labor and employment attorney with the Washington, D.C., office of Littler Mendelson, P.C. He sits on the FEMA US&R Advisory Committee`s Legal Issues Working Group, is a member of the FEMA US&R Incident Support Team, and is a plans officer with VATF-1 in Fairfax County, Virginia.

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