Are Kelly Days Supposed to be Paid or Unpaid Days Off

Today’s burning question: Does the FLSA require Kelly days to be paid or unpaid?

Answer: The short answer is the FLSA does not require Kelly days to be paid or unpaid. That decision is left entirely up to the employer and employee to decide. As you might imagine different departments choose to handle it differently.

The explanation for why one fire department would pay employees for a day-off while other fire departments consider it to be unpaid is somewhat complicated, but there is an easy way to remember it:

  • Where firefighters are paid a salary, their Kelly days are usually paid.
  • Where firefighters are paid an hourly wage, their Kelly days are usually unpaid.

Let’s dig a bit deeper into what Kelly days are and how they are used. The concept of Kelly Days is said to have originated in the Chicago Fire Department as a day-off for firefighters. The following comes from Chicago Firefighters IAFF Local 2’s web site:

The Union succeeded in reducing the work week of Firefighters to 72 hours, when in 1936, Mayor Edward J. Kelly gave Chicago Firefighters a day off for every seven on duty, beginning a new terminology that Illinois Fire Fighters still use for additional days off – a “Kelly” Day.  Chicago fire fighters were so fond of Kelly, they named him an “Honorary Fire Chief”…

You will note that 1936 was 2 years before the Fair Labor Standards Act was enacted, and nearly a half-century before it applied to firefighters! Thus, Kelly days were not originally intended to comply with the FLSA.

Whether paid or unpaid, the purpose of a Kelly day in modern times is to reduce the hours that a firefighter works, most commonly to minimize the need to pay firefighters overtime. To use a simple example, let’s assume a firefighter works 24-on, 48-off with a 28-day work period. Under this schedule the firefighter has 28-day work periods that vary between 216 and 240 hours, and rotate in a common rotational order of 216, 216, 240; 216, 216, 240; etc.

The firefighter’s hours in each work period exceeds what the FLSA sets as the maximum hours for a firefighter over a 28-day work period, namely 212 hours. In a 216-hour work period the firefighter is entitled to 4 hours of overtime, while in a 240-hour work period, the firefighter is entitled to 28 hours of overtime.

By giving the firefighter a 24-hour shift off during the 240-hour work period, his/her hours are reduced down to 216. Sounds simple and in some respects, it is. This much applies whether the firefighter is paid a salary or hourly.

First, let’s look at fire departments that pay their firefighter’s a salary. As stated above, most fire departments that pay their firefighters a salary, consider Kelly days to be paid time-off, like a vacation or sick day. Contrary to what many think, they are not doing this to benefit their firefighters at the expense of the taxpayers. Rather, treating the hours as paid time-off, serves to reduce the hourly wage/regular rate for the firefighters. This is where it gets deep.

Assume a firefighter is paid a base salary of $52k per year ($1,000 per week), and works 24-on, 48-off with a 28-day work period. The firefighter gets a paid 24-hour day off during each 240-hour work period. By considering the Kelly day as a paid day-off, the fire department will typically include those hours when converting his/her annual salary to an hourly wage for purposes of determining his/her regular rate for overtime purposes. If we assume the typical firefighter on a 24-48 schedule is scheduled to work 2912 hours per year,[1]  by dividing $52,000/2912 we get an hourly rate of $17.86.

If the same department treated those Kelly days as unpaid days off, and we assume the firefighter has 5 Kelly days per year, the calculation looks like this: $52,000/2792 = $18.62. Assuming no other wage augments need to be added in, firefighters with an unpaid Kelly day have an overtime rate of $27.93, as opposed to $26.76 for those with a paid Kelly day.

By treating the Kelly days as paid days-off, the city saves $1.14 per hour whenever that firefighter works overtime. The difference gets even greater if the firefighter has more Kelly days in a year. The only down side is that saying firefighters get these extra “paid days-off”  sounds bad to the taxpayers and elected officials who often have too short an attention-span to realize they are benefiting from it.

In fire departments where firefighters are paid a set hourly rate, there is no savings and thus no advantage to the department in giving the firefighter’s a paid day off. The result is that most fire departments that have a set hourly wage use unpaid Kelly days to avoid having to pay the extra 24 hours of overtime during the 240 hour work period.

What is funny is trying to explain to a city official how counter-intuitively it actually benefits the city to give salaried firefighters a paid day-off. Conversely, the opposite is true explaining to salaried firefighters that their overtime rate will go up if they switch to unpaid Kelly days.

If this sounds complicated, you now know why our FLSA for Fire Departments class is 3 days long and takes 3 firefighter-attorneys to teach it. Lots of great information, but it takes time to build the necessary foundation of understanding so the pieces all fit together.

Join us in either Providence, RI (eastern states) or Mesa, Arizona (western states). These are only classes we will be holding in 2018.

[1] Not every fire department uses 2912 as the figure by which to divide the annual salary. This is one example and is offered as an example only. The US DOL expects the employer and employee to agree on what hours the salary is intended to cover. It behooves fire departments to spell this out as clearly as possible in their employment agreements.

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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