Rules for Missouri Fire Protection Districts - Page 14

XIII. Federal Fair Labor Standards Act

Parenthetical numbers in the text refer to sections of the current Revised Statutes of Missouri, abbreviated as RSMo.

Rules

The federal Fair Labor Standards Act (FLSA) was enacted in 1934, during the Great Depression. Its original purpose was to spread 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 (29 USC §213[b]20), it applies to organizations that have four or more employees who work either full or part time. (For example, if an FPD employs a halftime paid fire chief, a halftime 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.)

Information on the federal laws that govern wages is available on the Fair Labor Standards Act website.

FPD boards with paid firefighters should retain a competent attorney who has a thorough understanding of employment law. Doing so might prevent a lot of troubles, penalties and/or back wages.The law has three sets of rules that can apply to public entities, including FPDs:

Volunteers. Volunteers are not directly covered by the FLSA. Thus, an FPD’s rules covering these workers can generally be anything that is reasonable. As discussed in Chapter XII. Personnel, volunteers can receive some compensation for their labors, provided it doesn’t exceed 20 percent of the rate for paid firefighters in the locality.

Generally, an employee cannot volunteer for the same work for which he or she is paid. An FPD employee could volunteer to do work for a city or a county, but time spent volunteering for the FPD would be hours worked and would have to be paid. This would probably hold true even in a case such as an FPD office secretary who volunteers to go on a fire call.

Normal employees. A secretary, bookkeeper, mechanic or other worker — even if cross-trained as a firefighter. EMTs and paramedics who do not meet the four-part test described in the Career firefighter rules section of this chapter are considered normal employees for purposes of overtime and compensatory time.

Career firefighters. Those who meet the four-part test described in the section Career firefighter rules. 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.

Arson investigators. If arson investigators do not have the authority to make arrests, they are considered normal employees for purposes of overtime and compensatory time. Arson investigators who meet the four-part test described in the Career firefighter rules section of this chapter, or have the authority to make arrests, are considered career firefighters for purposes of overtime and compensatory time.

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-a-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. 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 non-firefighters, 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. (See the Career firefighter rules section of this chapter for firefighter overtime and compensatory time.)

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 an FPD liability on the FPD’s financial reports, so the FPD needs to track it and not just rely on employees to track it. Timesheets need to report compensatory time earned in each period.

On-call time

FPD personnel are often on call. Generally, rulings under FLSA 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 (29 USC §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:

  1. Is trained in fire suppression;
  2. Has the legal authority and responsibility to engage in it;
  3. Is employed by a city, county, fire district or state; and
  4. 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 or 53 hours in a seven-day work period. 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 her wedding anniversary is this weekend, and she would like to spend the weekend with her family. She 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 FPD pays Adams because she was the one scheduled to work. Adams makes her 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.

Penalties

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 FPD 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, or even tripled, for certain violations.

Don’t risk an investigation. Keep careful overtime records and compensate overtime.

Other common benefits

The FLSA concerns only three sets of numbers: 40 hours in seven days or for “207(k) employees,” 212 hours in 28 days, or 53 hours in seven days. 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 an FPD board decision

Exemptions

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% 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. An FPD 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 FPDs, only the fire 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.