Overtime, Vacation Credit, and the FLSA

Today’s burning question: My fire department works a 48-on, 96-off schedule with a 24-day work period. If we work overtime during a work period during which we take vacation, rather than pay overtime for the extra hours worked, they credit back vacation time. It’s confusing, so here is an example: In a given work period I take 24 hours of vacation on my regularly scheduled shift and I work 12 hours of overtime on a non-regularly scheduled shift. My time card at the end of the work period will show that I only took 12 hours of vacation. 12 hours of the vacation taken cancel out with the 12 hours of OT. I am not paid time and a half for the 12 extra hours I worked. The end result is me being charged 12 hours of vacation.

All of our neighboring departments pay their personnel overtime for this time and our firefighters would prefer to be paid for the extra hours worked. However, our HR and Fire Chief claim it is against the law (FLSA) to be paid overtime and receive vacation hours in the same time work period. They continually have evaded our efforts to obtain a citation from FLSA and refuse to change the policy.

Is this a legal practice under the FLSA? If so, can you point me to the part of the FLSA that allows it or is it their interpretation?

Answer: Wow, that is quite a complicated burning question… unfortunately it is going to require a complicated answer. There are so many issues that I am not sure where to begin. Let’s start with the fact that your first question to me… (Is this a legal practice under the FLSA?) is probably the wrong question. Let me answer it, and you will see why: YES, the city’s practice of crediting back vacation time is generally legal under the FLSA. While it is possible that under certain circumstances it may run afoul of the FLSA, when administered properly the practice is permissible.

As for your second question (What part of the FLSA makes it legal?), there is nothing in the FLSA that expressly says “crediting back vacation time is legal”. That is now how the FLSA works. There is nothing in the FLSA that prohibits an employer from doing this. Therefore, it is permissible. As a result, there is no way for me to point you to a specific section in the FLSA that makes it legal.

But let’s get to the question you probably should have asked: Is the city REQUIRED by the FLSA to credit you back vacation time before paying you overtime?  The answer to that question is NO. There is nothing in the FLSA that requires the city to credit you back vacation time for the extra hours you work before paying overtime.

In fact, the FLSA is silent about how employers should handle vacations, sick leave, personal time off and a variety of related issues. The city’s current practice is neither required by the FLSA nor is it prohibited by it. The city’s position that it is illegal under the FLSA to be paid overtime and receive vacation hours in the same time work period is not accurate… However, there is a sliver of truth in what they are saying…  which requires an explanation of some FLSA fundamentals.

As complicated as the FLSA can be (and it can be complicated), there is a very simple principle that is important to understand: an employer must pay employees at least minimum wage for all hours worked, and overtime for any hours worked in excess of the maximum hours. The converse of this rule is also important: an employer is not REQUIRED to pay an employee for not working. In other words, there is nothing in the FLSA that requires an employer to pay employee who is on vacation, sick leave, personal time, or injury leave. In addition an employer does not have to credit an employee on vacation or paid leave with having worked those hours simply because the employer pays them for the time. Other laws may require that employees be paid or credited with working while on time-off … but the FLSA does not.

Applying this to your situation, the FLSA does not require your fire department to pay you for vacation time, nor does the fire department have to credit you with having worked those hours you are on vacation for purposes of calculating overtime. You only need to be paid for the hours you actually work.

As if we were not already there, let’s get into the weeds. For a 207k firefighter on a 24-day work period, the city does not have to pay its firefighters overtime until they have worked 182 hours. If you were scheduled to work 182 hours, and you took a 24-hour shift as vacation, then worked an extra 24-hour shift on another platoon, you would not be eligible for FLSA overtime for that extra 24-hour shift. You would be entitled to be paid straight time for the extra shift, but since you did not work over 182 hours, there is no FLSA obligation to pay overtime for those extra hours.

Now let’s get further into the weeds. Under the typical 48-96 schedule with a 24-day work period, each of the three shifts is scheduled to work four 48-hour shifts totaling 192 hours. That means without some sort of Kelly-Day, a firefighter who takes no time off would be entitled to 10 hours of overtime each work period. Any additional hours worked would also trigger overtime – assuming the firefighter takes no other time off that work period.

If we apply this to the example you gave, you were scheduled to work 192 hours. You took 24 hours of vacation, reducing your hours worked to 168 hours. If you work another 12 hours during that work period, your hours total 180, and you are not eligible for overtime. The city has to pay you for that time at straight time, and they satisfy that requirement by crediting you back the 12 hours of vacation time.

However, if instead of working an extra 12 hours, you worked an extra 24 hours that work period, you are back to having worked 192 hours. The city would have to pay you 10 hours of overtime even though they credit you the full 24-hours of vacation time. This could be where the city runs afoul of the FLSA.

Obviously, this is a very complicated situation. Many have probably given up reading this answer a long time ago. If you have read this far (whether you fully understand the complicated answer or not), you should think about attending our three-day FLSA for Fire Departments program. Three firefighter-attorneys take the time to methodically build your knowledge of key wage and hour issues, so you are better able to makes sense of the complicated aspects of the FLSA. There are no shortcuts. You either understand the FLSA, or you are at the mercy of those who claim they do!

Join us at one of our upcoming FLSA for Fire Departments conferences

December 4-6, 2018 – Mesa, AZ hosted by Mesa Fire & Medical Details/Register

January 15-17, 2019 – Atlanta, GA hosted by the Covington Fire Department Details/Register




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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