*Firehouse Legal blog posts provide information only and are not legal advice. For specific legal advice contact your attorney. No seriously, contact them, they’ll be happy to hear from you.*

Last month we dealt with a threshold question: Does the FLSA apply to the fire service? The answer, of course, was yes. The next questions in the algorithm are: Is the employee “exempt” from overtime pay, or “non-exempt”; and if non-exempt, is the employee engaged in “fire protection activities?”

The exempt/non-exempt issue seems to trip people up. While the definition is straightforward, the determination may not be so simple.   “Exempt” means the employee is exempt from overtime pay; non-exempt means regardless of what other considerations and calculations are at stake, the employee is going to be eligible for an overtime rate after a certain number of hours worked.

The determination will be slightly different for each department, because we have no set rank/authority/policy making structure in place universally. One department’s captain is another department’s deputy chief, so titles clearly are not the determining factor.  The actual primary type of work (Executive/Administrative/frontline operational), along with level of decision and policy making authority matter much more than the title. There are multi-pronged questions to make the determination, based in part on cases  here, here, and here; and statutes here, here, and here.  The Stone-Cold best- practice-bottom-line: Being a supervisor is not enough to exempt you from overtime; likewise, running a few emergency calls every once and awhile is not enough to make you eligible for overtime. When your tones drop, if you are not compelled to immediately drop what you are doing to run a call, because your primary function is administrative or executive (paperwork, politics, and people), you are probably exempt from overtime.  The reverse may also be applied: When the call comes in if you are required to respond, whether to manage the incident or directly provide rescue, medical, or suppression services, you are probably non-exempt. Fair warning: These determinations can get very tricky as you work your way up the chain of command.  Do not hesitate to get your lawyer involved to help; an ounce of prevention in these matters is worth the cost.

If your employee is considered non-exempt, the next question is whether or not the FLSA hours worked exemption for fire fighters (the “7K Exemption”) applies.  If the employee is engaged in “fire protection activities” you can apply the FLSA “hours worked” calculation based on a traditional fire fighter schedule (we will discuss this in a later installment) to the overtime determination; if not, then a forty hour work week calculation should, in most instances, apply.

What is “engaged in fire protection activities”?  Over the course of my career, the “fire protection activities” I have undertaken ranged from fighting actual fires to mopping floors to National Fire Academy courses to rescuing a very unappreciative miniature pinscher from sewer drain. The statute and certain case law does offer the following bit of definition for us to work with:

  1. Is the employee trained in fire suppression, has the legal authority and responsibility to engage in fire suppression, and is employed by a fire department of a municipality, county, fire district, or state; AND
  2. Is engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk.

For rank-and-file fire fighters this is generally a simple determination; when we start adding in all the other fire service job classifications (paramedic, investigator, inspector, dispatcher) it begins to get murky. And murkiness is where the lawsuits generally originate.  I’m not going got jump into the deep end of the case law pool but there are plenty of cases only a Google search away. I think the basic component parts should be fairly clear at this point.  Here are a “couple rules of thumb” to apply as a starting point when questions arise outside the norm:

  • Uniform fire inspectors, investigators, or prevention personnel are usually engaged in fire protection activities under the rule. This would exclude these personnel from the “overtime after forty” rule. This might change if those employees are non-uniform, civilian, or non-operational.
  • If your EMS personnel are a separate division of your department, don’t carry firefighting gear, aren’t trained in firefighting, or aren’t allowed to engage in firefighting, they are not engaged in fire protection activities and you will be required to pay them overtime wages for hours worked over forty hours.
  • Dispatchers are not listed in FLSA as being engaged in fire protection activities, and the courts have so far supported this as well, making dispatchers subject to overtime after 40 hours.

PLEASE NOTE: These cases, especially involving EMS, can be a VERY close call…if all the working conditions/job descriptions/requirements don’t obviously sync up or point in a specific direction, its time to call in the lawyers. (Trust me, we’re here to help.)

Next time:  The Fire Fighter Schedule and hours worked for overtime calculations.