Today’s burning question: If an Assistant Chief who is classified as an exempt executive employee is deployed on a two-week wildland or USAR deployment that is fully reimbursable through FEMA or the state, and both will reimburse the city for all hours he is deployed (ie. they will reimburse the city for his hourly rate and overtime rate for 24 hours a day, 7 days a week while deployed), can the fire department only pay the assistant chief his regular weekly salary?
Answer: You have touched on a somewhat complicated matter, one that reminds me about why our FLSA For Fire Departments conference is a 3-day program!
First off, we need to clarify exactly what you are asking, because there are at least four questions embedded within your question. Here they are:
- Can the city legally pay the assistant chief just his salary while on the deployment?
- Should the city pay him just his salary?
- Does the city risk making the assistant chief a non-exempt employee if they pay him more than his salary?
- Can the city seek reimbursement for the maximum that the state or FEMA allows, but only pay the chief his salary?
Can the city legally pay him just his salary while on the deployment?
Answer: Yes, assuming he is properly classified as an exempt executive, he need only be paid his regular salary regardless of how many hours he works per week.
One fly in the ointment may be that his job duties may change while he is being deployed. The white-collar exemptions are intended to be for office workers, not blue collar employees involved in manual labor. Perhaps the assistant chief is in a staff position with little to no operational responsibility. Will that change during the deployment? If he is working in the command post in planning, logistics or finance then maybe not. However, if he is out in the field in an operational position then he may no longer qualify for a white collar exemption. That is why the state and FEMA will pony up for overtime even for otherwise exempt employees.
Should the city pay him just his salary?
Answer: That is not a legal question. If I were the king, I would pay him overtime for his extra hours, but I as my wife and dog remind me daily, I am not the king. It is also not my money to give away.
Does the city risk making the assistant chief a non-exempt employee if they pay him more than his salary?
Answer: No, there is a US Department of Labor regulation that allows an exempt executive to receive additional compensation for additional hours worked. 29 CFR §541.604. So the city would not risk jeopardizing his exempt status simply because it paid the assistant chief for the extra hours he worked while on deployment.
Can the city seek reimbursement for the maximum that the state or FEMA allows, but only pay the chief his salary?
Answer: No, that would be fraud. Reimbursement is reimbursement, and if the city did not incur the charges for all of the assistant chief’s hours it cannot bill for them. By the way, if anyone was to be aware of such a practice that results in such a payment out of federal funds, the federal government has a law called the Federal False Claims Act that allows the party responsible for reporting the fraud to receive a share of whatever the government is able to recover from the wrongdoer.
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