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Rules for Missouri Fire Protection Districts
XIII. Federal Fair Labor Standards Act
Parenthetical numbers in the text refer to sections of the current Revised Statutes of Missouri, abbreviated as RSMo.
The federal Fair Labor Standards Act (FLSA) was enacted in 1934, during the Great Depression. Its original purpose was to spread the available work among more workers. In 1978, the law was applied to local governments because of a U.S. Supreme Court decision. Congress then modified the law to accommodate some different employment practices in the public sector. As the law now reads, it applies to fire departments that have four or more employees who work either full or part-time. (For example, if a fire protection district employs a half-time paid fire chief, a half-time paid secretary, a quarter-time paid bookkeeper and a quarter-time paid janitor, it is considered to have four employees. In other words, each person counts as an employee, regardless of the number of hours he or she works.)
The law has three sets of rules that can apply to public entities, including fire districts:
Volunteers are not covered by the FLSA. Thus, an FPD’s rules covering these workers can generally be anything that is reasonable. As discussed in the previous chapter, volunteers can receive some compensation for their labors, provided it doesn’t exceed 20 percent of the rate for paid firefighters in the locality.
- Normal employees
A secretary, bookkeeper, mechanic or other worker — even if cross-trained as a firefighter — is considered a regular employee who must be paid overtime for time worked over 40 hours in seven days and who can accumulate a maximum of 240 hours of compensatory time (for 160 hours of overtime work). A firefighter who is engaged in fire prevention and mitigation activities, such as building inspection, safety talks and handing out free smoke alarms, is considered to be working in firefighting and would be classified as a “career firefighter.” Similarly, a firefighter safety officer or a firefighter public information officer is a career firefighter.
- Career firefighters
Those who meet the four-part test described below under Career firefighter rules.
Hourly equivalent wage
Regardless of how they are paid, every employee must have, on record, an hourly equivalent wage, which is the figure used for calculating overtime rates. If an employee is paid on an other-than-hourly basis, the equivalent figure is calculated by dividing hours worked per year into annual earnings.
Overtime and compensatory time
Government workers, including FPD employees, are not treated the same as private sector workers because the government does not always have to pay employees one and half times their normal pay (time-and-a-half) for overtime hours. In this way, Congress recognizes that government agencies are required to live within a legislative budget and may not be able to pay for overtime. So a public entity, including an FPD, is allowed to give employees extra time off in the future instead of paying overtime, provided that workers receive one-and-a-half hours of future time off for each hour of overtime worked. However, the amount of compensatory time off is limited. Regular employees, such as nonfirefighters, must be paid time-and-a-half after they accumulate 240 hours of compensatory time (or 160 hours of overtime work). It is illegal to allow the employee to accumulate compensatory time beyond the maximum rather than paying overtime.
Once compensatory time is earned, it is the property of the employee. Within the bounds of reasonableness, it may be taken when the employee desires. Under a May 2000 ruling by the U.S. Supreme Court, however, public employers may require that employees take compensatory time they have accrued.
An employee does not have the right to decline to be paid overtime. Remember, the original passage of FLSA in 1937 was not intended to benefit workers but to employ more workers when over a fourth of the workforce was unemployed. The purpose of replacing the 60-hour week with the 40-hour week was to provide more jobs.
When an employee dies, quits, retires, is fired or is laid off, all the employee’s unused compensatory time must be paid at either the employee’s final rate of pay or the employee’s highest rate of pay in the final three years, whichever is higher. Thus, accrued compensatory time is not only limited but is also a district liability, so the district needs to track it and not just rely on employees to track it. Time sheets need to report compensatory time earned in each period.
Fire district personnel are often on call. Generally, rulings under FLSA decisions on whether on-call time must be paid have hinged on the required show-up time. If an on-call worker is required to arrive at work in 10 minutes or less, on-call time counts as hours worked. However, most rulings suggest that if a called-in worker has more than 10 minutes to arrive, on-call time does not count as hours worked.
Career firefighter rules
The Fair Labor Standards Act contains a specific exemption in paragraph 207(k) that establishes special rules for career firefighters. Like most federal statutes, it begins with a definition. For FLSA purposes, a firefighter is someone who:
- Is trained in fire suppression
- As the legal authority and responsibility to engage in it
- Is employed by a city, county, fire district or state
- Is engaged in the prevention, control or extinguishment of fires or responds to emergency situations where life, property or the environment is at risk.
Employees who meet all four standards may work on a 28-day schedule, with overtime pay accruing when they exceed 212 hours of work. These employees may accumulate up to 480 hours of compensatory time (equal to 320 hours of overtime work).
Another special firefighter rule allows career firefighters to arrange among themselves to trade time. Here is an example: Firefighter Adams is scheduled to work for 48 hours this Friday and Saturday. But his wedding anniversary is this weekend and he would like to spend the weekend with his family. He arranges with a coworker, Firefighter Baker, to work Friday and Saturday. This exchange of work does not require the advance permission of the employer. Baker works as promised but the fire department pays Adams because he was the one scheduled to work. Adams makes his own arrangement to compensate Baker, which usually takes the form of Adams working for Baker later when requested. In any industry other than firefighting, this practice of trading time is illegal. It is legal for firefighters, however, provided the employer does not forbid the practice.
If an employee files a complaint about labor practices, the U.S. Department of Labor (DOL) investigates. The DOL investigators do not look solely at the hourly records of the employee or former employee who complained, but they review all work records of all employees — even those the district counts as exempt from coverage. And they usually find violations of some sort, nearly always in record keeping. The DOL can assess penalties that go back two years from the date the complaint was filed, or three years if the employer was purposely trying to dodge the law. Penalties can be doubled for certain violations. Don’t risk an investigation. Keep careful overtime records and compensate overtime.
Other common benefits
The FLSA concerns only two sets of numbers: 40 hours in seven days, or 212 hours in 28 days for 207(k) employees. The FLSA does not concern holidays, vacations, Sundays, sick leave or other common employee benefits. Nor does it concern special pay rates, such as night differential and holiday pay. Whether to offer any of these benefits is a district decision.
Generally, an employee cannot volunteer for the same work for which he or she is paid. A fire district employee could volunteer to do work for a city or a county, but time spent volunteering for the district would be hours worked and would have to be paid. This would probably hold true even in a case such as an office secretary who volunteers to make ambulance runs.
Several groups of employees, including executive, administrative and professional workers who are paid a salary, are exempt from certain overtime and minimum wage coverage rules. Each class is tightly defined. Executives must have hire and fire authority, make management decisions, supervise at least two workers (not counting themselves) and make at least $455 per week. Administrative workers must spend at least 80 percent of their work time deskbound and doing administrative tasks, be able to exercise independent judgment and make at least $455 per week. Professionals must have completed a recognized training program, usually at the master’s degree level, meet the pay criteria and be able to exercise independent judgment. Those who provide training and instruction may also be exempt.
Exempt employees must be paid on a salary basis, which means they are not subject to having their pay docked for any reason other than dangerous safety violations, regardless of hours worked. A district puts itself at risk if it pays overtime to an exempt employee, because that makes it seem as if the employee is an hourly, rather than salaried, worker.
In most fire protection districts, only the district chief is likely to be classified as exempt, and then only if the chief supervises at least two employees. An FPD should be cautious about classifying workers as exempt. Boards are encouraged to become well-informed about the implications of such decisions.
DM4002, new June 2011
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