Burning Question: Why Do I Have to Wait for My Overtime?

Today’s burning question: Our firefighters work a 24 hours-on, 48 hours-off schedule based on a 28-day work period. We are paid every week but only receive FLSA overtime every four weeks. There are times that I work 72 hours in the first week of my work period but do not see payment for the overtime for 3 more weeks! I read that the FLSA requires employers to promptly pay employees for all hours worked – including overtime. Does the city violate the FLSA if it withholds OT for 3 weeks?

Answer: It is more complicated that it seems. Yes, the FLSA requires that employees be paid “as soon as practical”, but no, the FLSA does not require that a firefighter be paid for any extra hours worked within a week of when they are worked. In fact if you think about a 28-day work period, your employer may not know whether the extra hours you worked in week 1 make you eligible for overtime until the 28-day period is over! While those extra hours you worked in week 1 may have been beyond your regularly scheduled hours, they do not necessarily qualify as overtime hours. Until you have worked 212 hours in that 28-day work period, you are not entitled to FLSA overtime.

Let’s walk through the answer in more detail and hopefully provide some perspective. All hourly employees, with two notable exceptions, are required to have their overtime evaluated on a 7-day workweek. Employees must be paid for the overtime “as soon as practical” after the workweek concludes. Thus within a few days after the conclusion of each week the employer is able to calculate and pay employees for any overtime due.

The two exceptions to the 7-day workweek requirement are for public law enforcement officers and firefighters. Section 7k of the FLSA allows for the establishment of work periods of up to 28 days for employees engaged in “law enforcement activities” or “fire protection activities.”

When using a 28-day work period, the amount of overtime owed to a firefighter cannot be calculated until the end of the 28-day work period. As a result, firefighters who work overtime in the first week of their 28-day work period may have to wait three weeks to receive overtime compensation for the extra hours.

The U.S. Department of Labor regulation 29 CFR §778.106, states overtime must be paid on the “regular pay day for the period in which such workweek ends” unless the “correct amount of overtime compensation cannot be determined until some time after the regular pay period.” In your situation, the work period does not end until the 28th day, so the fire department cannot determine how many overtime hours you may be entitled to until then. However, the fire department has a duty to pay all overtime due “as soon as practicable”, which the DOL considers to be the normal pay day following the end of each work period.

 

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.
  • Tomme Tysdal

    So how does this apply to Part-Time staff or those full-time on a 40 hour work week (8 or 10 hour shifts)?

    • CurtVarone

      The FLSA does not distinguish between full and part-time employees, so it is possible that part-time firefighters could qualify as 7k firefighters, and eligible for a 28 day work period.

      As for those on a 40 hour workweek… it depends if they are exempt, categorized as 7k, or treated as non-7k employees. Non-7k employees must be on a 7 day workweek (ie their overtime is based on a week by week analysis), so they should be paid overtime on the regular payday for that workweek.

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