(Photo by Tony Greco)
By Mark Wallace
Elected officials, key stakeholders, and/or the media often ask really tough questions that put fire officials on the defensive for proposals or operational practices. They expect us to have a logical and compelling explanation to all of their questions and at a moment’s notice. Therefore, it is helpful to consider answers to their questions in advance.
The really tough question for this part of the series is:
Is our department properly budgeting the salary of our shift personnel?
This question, if ever asked, will be pre-loaded with a variety of issues that may be rumbling within the department. This often will involve questions about the organization’s compliance with the Fair Labor Standards Act (FLSA). This is a kind of ‘barn door” issue; once raised, you will need to be able to provide a wide variety of information and analysis. The FLSA is complex and often found to be difficult to apply properly for 24-hour shift firefighters when the organization is claiming a “7(k) exemption” as allowed by the act. Nearly all fire departments claim this exemption. [See 29 USC, 201 et.seq.]
This article IS NOT legal advice. It is intended to be a primer or a place to start your analysis into the issue. The act has been in place for more than 75 years with numerous amendments and clarifications. It is easy to assume that all of the issues and tedious calculations were properly done long ago. I hope that is the case in your department. I know, however, that it is not the case in some departments that will remain un-named. This article is intended to give you some help to see if you find any “red flags” warranting a more formal review by a FLSA legal expert.
Basically, the FLSA requires that employers pay at or above the federal or state minimum hourly wage AND that they pay 1.5 times an employee’s regular hourly rate for hours actually worked in excess of 40 in a workweek. This seems easy, but next you must throw in a raft of exceptions and interpretations. Basically, these complications focus on what constitutes an hour actually worked. Sick leave hours taken, for example, are not hours actually “time worked” according to the act, even though the department pays employees at their regular rate for time away from the job taken as sick leave. All of these provisions of the FLSA should be reviewed to determine how they are applied. Your organization can exceed the minimum standards of the FLSA, i.e. pay more than the minimum, but not less.
Because this has been in place for so many years, past practices will be a huge factor in future actions if past practices are to the benefit of the employee. If past practices don’t meet the minimum standards of the FLSA, your organization may be facing the need to pay stipulated back pay at some time in the future. Don’t let that be a surprise. if you can, but circumstances may already be too “far gone” once the question has been raised and the metaphorical “horses have left the barn.”
Many labor contracts that deal specifically with how the organization will determine hours actually worked by an employee and these provisions are usually intended to simplify their applications of FLSA provisions. These issues are legitimate issues for any labor agreement and are often hard-fought details negotiated into the contract. The issue at hand may be that some believe that the provisions of the contract are not being met to their satisfaction.
Organizations were required to formally define their organization’s normal workweek many years ago. Often, Sunday at 12:00 am (midnight) was selected as the start of the organization’s workweek, with Saturday at 11:59 pm being the official end of the workweek. For most employees (those that work a 40-hour workweek), any hours actually worked in excess of 40 hours within any workweek must be paid at the overtime rate (1.5 times their regular hourly wage).
Departments with career firefighters working a 24-hour shift should have formally claimed the firefighter’s “7(k) exemption,” which allows for their schedule in a written document formally adopted by your elected officials. [See Section 207(k)] The organization will have selected a normal work cycle, which could be any consecutive days from 7 to 28 days in the work cycle. Embedded in the FLSA provisions is a chart that indicates how many hours are allowed at the regular hourly rate before the overtime rate of 1.5 times the regular rate must be paid. Hit the Internet and find the FLSA, specifically the firefighter exemption provisions, then apply your situation to the standards of the act. [See IAFF Fair Labor Standards Act Manual, p. 6]
A common work-cycle across the country is the 21-day work cycle. I will use this work cycle here as a common example only. It is not intended to be a recommendation, although many believe it is the more advantageous for their organization. The chart allows for an employee to work 159 hours at their regular hourly rate before the overtime rate must be paid. If the department uses a 24 hours on and 48 hours off duty system (for example), an individual will be scheduled to work 168 hours during each 21-day cycle. This requires nine of those hours to be paid at the overtime rate.
The next relevant decision is if the employees are paid on an hourly basis or on a monthly salary. The next part of this sub-series will deal with this part of the properly application of the FLSA in the fire service.
Mark Wallace (MPA, EFO, CFO, FIFireE) is the author of Fire Department Strategic Planning: Creating Future Excellence. He is the former State Fire Marshal of Oregon and a former chief in Colorado and Texas. He currently operates Fireeagle Consulting (www.fireeagleconsulting.com). He wrote the planning chapter in the 7th edition Fire Chief’s Handbook, which was released in fall 2014.
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