Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s burning question is one that has come up before, and will no doubt come up again: I am the new chief of a mostly volunteer fire department. The six career firefighters, who are all former volunteers, have never been allowed to volunteer their services after hours. They work five days a week, fifty hours a week total. All have expressed to me their willingness to respond to alarms on nights and weekends. Can I let them?
Answer: The short answer is, yes you can allow them to respond to alarms outside their normal hours, provided you are willing to pay them overtime. The long answer is…. well… complicated and involves the Fair Labor Standards Act (FLSA).
Under the FLSA, hourly employees are entitled to overtime compensation after 40 hours a week. There is an exception for public sector firefighters known of the 207K exemption that allows them to work up to an average of 53 hours per week (212 hours in a 28 day period) before overtime is triggered. The distinction between public and private sector departments is important because if your department is a volunteer fire company (a private sector entity) – you may owe your personnel overtime for all hours worked over 40. If your department is a municipal department, a fire district, or other public sector entity, then your firefighters can work their current fifty hours a week at straight time (hourly) rate or for a salary without triggering overtime.
While often misunderstood by firefighters, the FLSA requirement that all hours worked for an employer (even volunteer hours) must be counted as compensable hours worked – actually makes a lot of sense. There are many unscrupulous employers out there who would be all too happy to find ways to induce their employees to “volunteer” to work extra hours if the law permitted them to. While most employers trying to exploit the volunteer angle would not be fire departments – the truth is there would be some departments that would. Hence the FLSA does not allow an hourly employee to “volunteer” for his/her employer without compensation.
