Counting Vacation and Sick Time As Hours Worked

Today’s burning question: If a collective bargaining agreement requires a fire department to count vacation time and sick time as hours worked for overtime purposes, do these hours have to count toward hours worked for FLSA overtime purposes? In other words, can the CBA expand our FLSA rights?

Answer: No. The Fair Labor Standards Act only requires an employer to compensate an employee for hours actually worked. Thus, when calculating FLSA overtime, the employer does not need to include hours for which the employee was paid under a collective bargaining agreement but did not actually work. Should an employer fail to pay overtime as required by the collective bargaining agreement, the recourse would be a grievance under the CBA not an FLSA lawsuit. The employer would not be in violation of the FLSA by failing to comply with the CBA.

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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