Today’s burning question: I work for a small town fire department as one of two paid firefighters. Everyone else is a volunteer. The town manager refuses to pay us overtime until we work 212 hours in 28 days. Everywhere else I have ever worked, overtime had to be paid after 40 hours in a week. Can the town manager get away with this?
Answer: Yes, and you should probably consider yourself fortunate that the town manager is paying you overtime at all. He likely could simply pay you straight time for all hours worked!
Under the Fair Labor Standards Act, most employees must receive overtime after working 40 hours in a week. There is a long list of exceptions and exemptions to the 40-hour requirement, two of which are relevant to your situation.
The first exception comes from 29 USC §207k of the FLSA (often referred to as the 207k or 7k exemption) that applies to employees engaged in fire protection activities. Firefighters who qualify under the 7k exemption may work up to 53 hours per week, or 212 hours in 28 days, before being eligible for overtime. It would appear that your town manager is paying you in accordance with the 7k exemption.
The second exemption is the so-called small fire department exemption. It can be found in the FLSA at 29 USC §213 b(20). The small fire department exemption provides that public agency fire departments with less than 5 employees do not have to pay employees overtime at all.
When evaluating the number of employees, the town only needs to consider employees who are engaged in fire protection, not police, school or public works employees. However, all full and part-time employees engaged in fire protection must be counted. You mention that your department has volunteers. If they are indeed volunteers, then with just two employees your department would appear to qualify for the small fire department exemption, and you could be paid straight time for all hours worked.
However, if the volunteers receive compensation and would meet the requirements of the FLSA to be considered an employee, then your department would likely not qualify for the small fire department exemption (assuming the total of full and part-time employees exceeds 4).
One final caveat, the small fire department exemption only applies to public fire departments. Volunteer fire companies who are 501c3 nonprofit corporations cannot take advantage of either the 7k exemption nor the small fire department exemption.
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