FLSA Facts for Firefighters: Clothing Allowance

Today’s burning question: Does a fire department have to factor in an item such as a clothing allowance when determining a firefighter’s hourly wage for overtime calculations?

Answer: Under certain circumstances some or all of a clothing allowance may be considered compensation and thus includable in calculating the employee’s “regular rate”. Regular rate is the hourly wage that employees receive when all remuneration (compensation paid for work) is factored in. Overtime is based upon regular rate times 1.5.

While the general rule is that all remuneration must be included when calculating regular rate, there are exceptions. One exception that applies here involves expense reimbursements.

Typically, when an employer reimburses an employee for expenses incurred, the reimbursement does not have to be included in the regular rate calculation. A problem arises when the reimbursement is not a dollar-for-dollar payment for the exact cost of expenses incurred – but rather is given as a stipend or allowance intended to cover estimated expenses. In such a case it is possible that some or all of the allowance may be considered remuneration.

To the extent a firefighter’s clothing allowance exceeds what is “reasonably approximate” for the costs to purchase, maintain, and launder required uniforms, the overage must be included in the regular rate. 29 CFR §778.217. Determining if a clothing allowance is “reasonably approximate” for the expenses incurred requires a detailed factual analysis.

The big concern is whether an employer is using an inflated clothing allowance as a means of providing additional compensation to employees. If a court determines that a clothing allowance exceeds what is reasonably approximate for expenses, the overage would have to be included in the regular rate calculation. In this regard, if a department provides uniforms and laundering services, plus provides employees with a clothing allowance, it is possible that the entire amount of the allowance would be includable.

Each case will turn on the specifics of the facts in each workplace.

By Bill Maccarone

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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