Should Additional Hours Be Paid as Overtime or Straight Time

Today’s burning question: Our attorney is claiming we are wrong to pay overtime to firefighters unless they physically work 212 hours in a 28-day period. We have always paid overtime to our personnel for all hours over and above a firefighter’s assigned work schedule. The attorney says that if a firefighter takes a vacation day (24 hours) during the 28-day period and works an extra 24-hour shift, we only need to pay him straight time for those 24 hours.

Answer: The FLSA is intended to be the MINIMUM wage and hour law that employers must respect. An employer can always pay an employee MORE than the minimum wage (most employers see a benefit to doing so to attract and retain good people)… as well as overtime when not required by the FLSA. So you are not wrong to pay your firefighters the way you have been. It is just that it is not mandatory under the FLSA.

An employer may also be required to pay more than FLSA minimums due to a contractual provision, or in some cases due to state law. If the firefighters have a collective bargaining agreement that specifies that overtime must be paid for all hours worked over their regular assignments, the collective bargaining agreement would take precedence over the FLSA minimums. In such a situation the employer would be legally required to pay OT under state law even though it exceeds the FLSA minimums. In the Northeast most fire departments are required by contract to pay OT after 42 hours.

What is disturbing to me are the bean counters – including some bean-counting attorneys – who earnestly believe paying anyone more than the absolute minimum is foolish and wasteful… They belong to the Scrooge School of Management and Ethics. Oddly enough, they do not believe that same rule should be applied to them… apparently they somehow rationalize that they are “special”. Hypocrite is the more accurate term.

I say an honest day’s wages for an honest day’s work. The FLSA should be viewed as the absolute bare minimum to protect employees from wage theft from the new-age robber-barons. It is not the gold standard beyond which an employer should be considered to be extravagant. Having said that, the FLSA does not mandate firefighters receive overtime until they have actually worked 212 hours in a 28-day period (or 53 hours in a 7 day period).

We will be discussing issues like this at our upcoming FLSA for Fire Departments program in Las Vegas in February, 2016 and Chicago in August, 2016.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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