Compensation For Work While On Vacation

Today’s burning question: We are combination department in which our full-time firefighters are permitted to respond back to alarms. This usually is not a problem and we pay them their overtime rate for the extra time they work. However, a concern was raised about how we handle a firefighter who is on paid time-off (vacation, personal day, or comp time) and returns for an alarm. Is it permissible under the FLSA to pay the firefighter twice for the same time?

Answer: This is not an FLSA issue per se, but it is an important issue none-the-less. First, the FLSA requires an employer to pay an employee at least minimum wage for all hours actually worked plus overtime if the hours they work exceed the statutory maximum. It does not require an employer to give an employee vacation time, personal time, or sick time. It does not prohibit an employer from paying employees for work they perform while in a time-off status on top of any compensation they may otherwise be entitled to because of the time-off status. The FLSA ONLY requires compensation for the hours the employee actually works. So as long as you pay your firefighters for the hours they actually work – the FLSA will not be a problem.

Second, the FLSA does not require you to pay employees overtime simply because they work extra hours beyond their normal shift. The FLSA only requires you to pay overtime for hours they work in excess of the statutory maximums (40 hours per week for most employees, 53 hours per week or 212 hours per 28 days for 7k firefighters). Thus, an employee who is on vacation and has not worked any hours during the workweek/work period in question, could be paid straight time under the FLSA if he/she returns to duty. The FLSA does not prohibit you from paying overtime under the circumstances, it just does not require it.

The big concern relative to paying employees twice for the same time would be the possibility of a state and local law that prohibits public employees from being paid twice for the same time. These laws are not aimed at firefighters returning to duty while on vacation – they are directed at employees who are charging two public employers for the same time. For example, a town public works employee who also coaches the high school football team could run afoul of such laws if he was paid by both entities (public works and school department) for the same hours.

My concern would be the wording of these laws. It is possible that the laws may have been drafted in such a way as to prohibit paying a firefighter both for being on vacation and for work actually performed. The only way to answer that question for sure would be to retain local counsel to research state and local law.

If the research shows that paying the returning firefighters violates the law, an easy enough work around would be to pay the employee for the time actually worked (which is an FLSA requirement) and bank the paid time-off. Alternatively, personnel on paid time-off would have to be prohibited from responding to alarms.

Again, as I said at the beginning, this is not an FLSA issue. The FLSA would not prohibit you from paying overtime to a firefighter who returns to duty for a fire while on vacation. The problem would be state or local law.

As is evident from this lengthy answer… the FLSA is a complicated subject. We will be holding our last FLSA conference for 2018 in Mesa, Arizona, December 4, 5 and 6, 2018. Please consider joining us! It is a wonderful time of year to be in the Pheonix area.

 

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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